Citation Nr: 1326977 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-44 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for bilateral toe onychomycosis. 2. Entitlement to a higher initial disability rating for right wrist tendonitis, residuals of a right ulnar fracture, evaluated as noncompensable prior to August 10, 2012 and as 10 percent disabling from August 10, 2012. 3. Entitlement to an initial compensable evaluation for residuals of a right index finger fracture. 4. Entitlement to a higher initial disability rating for right foot plantar fasciitis with heel spur, evaluated as noncompensable prior to August 10, 2012 and as 10 percent disabling from August 10, 2012. 5. Entitlement to a higher initial disability rating for left foot plantar fasciitis with heel spur, evaluated as noncompensable prior to August 10, 2012 and as 10 percent disabling from August 10, 2012. 6. Entitlement to service connection for residuals of a head concussion. ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that, in a June 2013 rating decision, the RO increased the schedular evaluation for the Veteran's right and left plantar fasciitis with heel spur to 10 percent disabling per foot, effective August 10, 2012. The RO also recharacterized the Veteran's residuals of a fracture of the right ulnar as shown above and assigned a 10 percent disability evaluation, effective August 10, 2012. As the Veteran has not indicated that he is satisfied with the ratings assigned, these claims remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Virtual VA claims file has been reviewed. In March 2012, in pertinent part, the Board remanded all of the claims listed on the title page to the RO, via the Appeals Management Center (AMC) for additional development. For the reasons stated below, with regard to the claims for increased ratings, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the claim for service connection for residuals of a head concussion is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The issue of service connection for fungus infection of a hand has been raised by the record. It is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the rating period on appeal, the onychomycosis of the toes of both feet is productive of a fungal infection of less than 5 percent of the total body area, but with intermittent anti-fungal therapy. 2. Throughout the entire rating period on appeal, the Veteran's right wrist tendonitis, residuals of a right wrist fracture, is productive of pain and limitation of motion, but without evidence of ankylosis. 3. Throughout the rating period on appeal, the Veteran's residuals of a fracture of the right index finger is productive of a gap of less than one inch between the fingertip and the proximal transverse crease of the palm. 4. Throughout the entire rating period on appeal, the Veteran's right plantar fasciitis with heel spur is moderate and productive of pain. 5. Throughout the entire rating period on appeal, the Veteran's left plantar fasciitis with heel spur is moderate and productive of pain CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for onychomycosis of the toes of both feet have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7806, 7820 (2012). 2. Prior to August 10, 2012, the Veteran's right wrist tendonitis, residuals of a right wrist fracture was 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2012). 3. Right wrist tendonitis, residuals of a right wrist fracture, is no more than 10 percent disabling. . 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.56, 4.71a, 4.118, Diagnostic Code 5215 (2012). 4. The criteria for an initial compensable rating for residuals of a right middle finger fracture have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.49, 4.71a, Diagnostic Code 5229 (2012). 5. Prior to August 10, 2012, the Veteran's right plantar fasciitis with heel spur was 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). 6. Right plantar fasciitis with heel spur is no more than 10 percent disabling. . 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.56, 4.71a, 4.118, Diagnostic Code 5276 (2012). 7. Prior to August 10, 2012, the Veteran's left plantar fasciitis with heel spur was 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). 8. Left plantar fasciitis with heel spur is no more than 10 percent disabling. . 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.56, 4.71a, 4.118, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in September 2006, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's initial claims for service connection and any claims for increased ratings, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA post-service treatment, and the Veteran's own statements in support of his claims. In connection with the current appeal, the Veteran was afforded VA examinations responsive to the claims for increased disability ratings. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the increased rating claim on appeal. The examination reports contain all the findings needed to rate the Veteran's service-connected disabilities, including his history and clinical evaluation. The Board finds that the opinions are adequate. The Veteran's appeal for higher evaluations for the disabilities listed is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disabilities since the 2012 VA examinations, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his disabilities have worsened since the most recent, August 2012 VA examinations; he merely asserts entitlement to higher disability evaluations. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that this disability worsened since the most recent VA examination. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has not alleged that any examination is inadequate to decide the claims being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Evaluation Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Here the disabilities have not significantly changed and uniform evaluations are warranted. More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Analysis for an Disability Evaluation Onychomycosis of the Bilateral Toes The Veteran is currently assigned a 10 percent disability rating pursuant to Diagnostic Code 7820. Diagnostic Code 7820 states that infections of the skin are to be rated as disfigurement of the head, neck, or face (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending on the predominant disability. See 38 C.F.R. § 4.20 (2012) (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous). As the Veteran's predominant disability manifests itself as a skin infection of the feet, the disorder is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7806. Diagnostic Code 7806 provides a 10 percent disability evaluation for dermatitis or eczema of at least 5 percent of the entire body, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of the exposed affected areas, or intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the prior 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). For the next higher 30 percent disability evaluation, there must be dermatitis or eczema over 20 to 40 percent of the body or 20 to 40 percent of the exposed areas affected, or systemic therapy, such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the prior 12-month period. Id. For the next higher 60 percent disability evaluation, there must be dermatitis or eczema over more than 40 percent of the entire body or more than 40 percent of the exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs for the past 12 month period. Ibid. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal the Veteran's service-connected onychomycosis of the toes of both feet more nearly approximates the criteria for a 10 percent disability evaluation under Diagnostic Code 7806. The evidence shows that the Veteran, throughout the rating period on appeal, does not have onychomycosis over at least 5 percent of his entire body. Indeed, the medical evidence of record, including the August 2012 VA examination report, indicates that the Veteran has onychomycosis over less than 5 percent of his entire body, with intermittent treatment by means of anti-fungal medication for 6 weeks or more per year. He does not require intermittent systemic therapy or immunosuppressive drugs. The VA examiner noted that the Veteran's infected area makes up the Veteran's great and pinky toenails of both feet. At service separation, the Veteran had thickened nails of both feet. As a result, his current 10 percent disability rating adequately compensates him for his onychomycosis of the toes of both feet, and a preponderance of the evidence is against a higher rating. 38 C.F.R. §§ 4.3, 4.7. In reaching this determination, the Board has considered the pleadings to include that he has been prescribed medication. However, nothing in the pleadings provides a basis for an evaluation in excess of 10 percent, even whena accepted as correct. Right Wrist Tendonitis, Residuals of a Fracture of the Ulnar The RO initially assigned a noncompensable disability evaluations for the Veteran's right wrist tendonitis, residuals of a right wrist fracture pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5215. Effective August 10, 2012, the RO increased the Veteran's disability rating to 10 percent. Diagnostic Code 5215 provides for a 10 percent rating, for either the major or minor extremity, where there is dorsiflexion of less than 15 degrees or palmar flexion limited in line with the forearm. No higher disability rating is provided under this Code. However, under Diagnostic Code 5214, a 30 percent disability rating is provided for favorable ankylosis of the (major) wrist, with 20 to 30 degrees dorsiflexion. Under Diagnostic Code 5212, a 20 percent disability rating is available for impairment of the radius, of either the major or minor extremity, with nonunion in the upper half. Diagnostic Code 5213 provides for a 20 percent rating, for either the major or minor wrist, where there is loss of pronation beyond the last quarter of arc or there is bone fusion with hand fixed near the middle of the arc or moderate pronation. See 38 C.F.R. § 4.71a, Diagnostic Code 5212-5215. After a review of all the evidence, lay and medical, the Board finds that for the rating period prior to and since August 10, 2012, the Veteran's service-connected right wrist tendonitis, residuals of a right wrist fracture, most closely approximates the criteria for a 10 percent rating. The Board finds that the Veteran had limitation of motion of the right wrist. At the VA examination in August 2012, the Veteran was noted as being right hand dominant. At the June 2013 VA examination, he had palmar flexion to 70 degrees, dorsiflexion to 60 degrees, ulnar deviation to 20 degrees, and radial deviation to 25 degrees. The Veteran had pain on movement, and less movement than normal, but without swelling, deformity, or atrophy. However, the clinical evidence of record, throughout both rating periods on appeal, does not show that the Veteran experiences limitation of pronation beyond the last quarter of arc, bone fusion with the hand fixed near the middle of arc, moderate pronation, or impairment of the radius with nonunion in the upper half. Likewise, the Veteran does not experience ankylosis. Wrist flexion was 5/5. Thus, the Board finds that the Veteran's right wrist tendonitis, residuals of a right wrist fracture fits within the criteria for a 10 percent disability evaluation, but no higher, for the entire rating period on appeal. In essence, the appellant has pathology productive of painful motion warranting the assignment of a compensable evaluation. 38 C.F.R. § 4.59. We find it unlikely that the appellant became worse on the day that he walked into an examination room. Furthermore, he had good cause for not appearing for the prior examination as he was out of the country. The VA is at liberty to amend the regulations; however, such has not happened. The Board has also considered whether he has additional functional loss - beyond that objectively shown - due to his pain, or because of weakness, premature or excess fatigability, incoordination, etc. See DeLuca v. Brown, 8 Vet. App. 202 (1995), citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. However, the fact that the Veteran experienced pain, even if experienced throughout the range of motion on examination, does not by itself warrant a higher rating under the diagnostic codes providing ratings for limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, it is the functional limitation, i.e., the additional limitation of motion, caused by pain or the other DeLuca factors that must be considered in determining whether a higher rating is warranted, and there is no objective indication that the Veteran's symptoms result in any additional functional limitation to a degree that would support a rating in excess of the current 10 percent rating for his right wrist. The August 2012 and June 2013 VA examiners noted that joint function on the right was not additionally limited, after repetitive use, by fatigue, weakness, lack of endurance, or incoordination, despite complaints of pain. The current disability evaluation contemplates the Veteran's complaints, as well as any limitation of motion due to pain. Residuals of a Fracture of the Right Index Finger The Veteran is currently assigned a noncompensable evaluation for residuals of a right index finger fracture, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5229. Under Diagnostic Code 5229, a noncompensable disability evaluation is assigned for limitation of motion of the long finger with a gap of less than one inch between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by no more than 30 degrees. A 10 percent disability evaluation is assigned where there is limitation of motion with a gap of one inch between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5229 (2012). The competent evidence of record does not support a compensable evaluation under Diagnostic Code 5229. Although the Veteran had complaints of pain upon examination in August 2012, there was no limitation of motion of the right index finger; the Veteran had full grip strength, and there was no functional loss or weakened movement of his right index finger. Sensation was intact, and there was no evidence of incoordination, atrophy, or ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5229. The Board has also reviewed the competent evidence of record and finds no basis for a higher evaluation under the rating criteria for scars. The Veteran does not have a scar. As such, that Diagnostic Code cannot serve as a basis for a higher rating. Therefore, a higher, compensable rating is not warranted. Right and Left Plantar Fasciitis with Heel Spur The Veteran's right and left plantar fasciitis with heel spurs was initially rated as noncompensable for each foot. The RO increased the Veteran's disability evaluation to 10 percent disabling per foot, effective August 10, 2012. The Veteran is rated by analogy pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276. See 38 C.F.R. § 4.20. Under Diagnostic Code 5276, a noncompensable disability evaluation is assigned for mild flat foot with symptoms relieved by a built-up shoe or arch support. A 10 percent rating is assigned for bilateral moderate flat foot with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet. A 30 percent rating for bilateral flat foot requires a severe condition with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indications of swelling on use, and characteristic callosities. A 50 percent rating for bilateral flat foot requires a pronounced condition manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. Id. After a review of all the evidence, lay and medical, the Board finds that for the rating period prior to and since August 10, 2012, the Veteran's service-connected right and left plantar fasciitis with heel spurs, most closely approximates the criteria for a 10 percent rating for each foot. The Board finds that the Veteran's plantar fasciitis is moderate for each foot. At the August 2012 VA examination, the Veteran reported intermittent foot pain and that orthotics failed to relieve his symptoms. X-rays showed degenerative arthritis of the feet and calcaneal spurs. The Veteran reported difficulty with running, jumping, jogging, and prolonged standing. The Veteran complained of pain on use, and this appears to the Board to be equivalent to pain on manipulation and use. The Veteran did not use assistive devices, as a normal mode of locomotion, and there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Board is left with a clear impression that prior to and since August 10, 2012, the Veteran's symptoms were essentially the same; moderate plantar fasciitis with pain on use of the feet. Here, a 10 percent evaluation is warranted for each foot. There is also no basis for any higher rating under any other potentially applicable diagnostic code. There was no evidence of claw foot symptoms warranting a higher rating under diagnostic code 5278, malunion or nonunion of tarsal or metatarsal bones warranting a higher rating under diagnostic code 5283, or moderately severe or severe other foot injury warranting a higher rating under diagnostic code 5284. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited function, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment. The VA examination did not demonstrate any additional limitations in response to pain, including incoordination, weakness, or fatigability. Likewise, there was no objective evidence of decreased motor strength. Therefore, the objective indications are that the Veteran's symptoms do not result in any additional functional limitation to a degree that would support a rating in excess of the current disability rating; the evidence reveals a disability picture most approximating a 10 percent evaluation for each foot, even with consideration of whether there was additional functional impairment due to DeLuca factors. See Mitchell, supra. There is no objective clinical indication that he has additional functional impairment, above and beyond the 10-percent level for each foot, which would support an even higher rating. Lay Pleadings One function of the Board is to consider the lay evidence and pleadings. However, other than that recorded during medical evaluations, the record is remarkably lacking in substantive pleadings from the Veteran or the representative. Under the circumstances, the medical evidence is more probative than any implied pleadings or lay evidence. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's onychomycosis, right wrist tendonitis, right index finger fracture, and plantar fasciitis are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in each VA examination report and which provided the basis for the disability ratings that have been assigned. The Veteran's symptoms of right and left foot, right index finger, and right wrist pain, as well as toenail thickening, were clearly contemplated in the currently assigned disability evaluations. The Veteran's complaints of pain were clearly considered in the evaluations provided; pain and limited motion of the wrist serves as the basis for his assigned disability rating for right wrist tendonitis and right and left foot pain serves as the basis the assignment of a 10 percent rating for each foot for moderate plantar fasciitis. In any event, the evidence does not reflect that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Veteran did not indicate that he had to miss any time from work due to his disabilities. Therefore, referral for consideration of an extraschedular rating for any of the Veteran's disabilities is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with Veteran's disabilities on appeal, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial disability rating in excess of 10 percent for onychomycosis of the toes of both feet is denied. A disability rating of 10 percent is granted for right wrist tendonitis, residuals of a fracture of the right ulnar for the period prior to August 10, 2012, subject to controlling regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 10 percent for right wrist tendonitis, residuals of a fracture of the right ulnar is denied. Entitlement to an initial compensable rating for residuals of a fracture of the right index finger is denied. A disability rating of 10 percent is granted for right plantar fasciitis with heel spur for the period prior to August 10, 2012, subject to controlling regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 10 percent for right plantar fasciitis with heel spur is denied. A disability rating of 10 percent is granted for left plantar fasciitis with heel spur for the period prior to August 10, 2012, subject to controlling regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 10 percent for left plantar fasciitis with heel spur is denied. REMAND A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. A remand is required to ensure compliance with the Board's previous March 2012 remand directives as to the issue of entitlement to service connection for residuals of a head concussion. In this regard, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Pursuant to the Board's March 2012 remand, the Veteran's claim of entitlement to service connection for residuals of a head concussion was remanded for a VA examination. The record reflects that the RO attempted to schedule the Veteran for a traumatic brain injury (TBI) examination on August 16, 2012, but the Veteran had to cancel, as he was leaving for Iraq on August 13, 2012, returning December 2012. The record reflects that the Veteran's TBI examination was rescheduled for May 6, 2013, but cancelled due to the Veteran's failure to report. However, the claims file does not reflect that the RO contacted the Veteran to see if he was in the United States prior to scheduling the VA examination. Likewise, the claims file does not reflect that the Veteran received notice of the VA examination. Therefore, in light of the above, the Board finds that another attempt should be made to schedule the Veteran for VA TBI examination and opinion for the issue of entitlement to service connection for residuals of a head concussion. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and determine when he will be available for a VA examination and schedule his examination accordingly. If he is not available for examination, please so indicate in the file. 2. Schedule the Veteran for a VA examination as to the nature and etiology of any residuals of a head concussion. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should first clearly identify all neurological disabilities. With respect to each diagnosed disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that such a disability is related to service, including a head concussion during service. The examiner should specifically address any in-service and post-service symptoms. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 3. Readjudicate the claim for service connection. If, upon completion of the above action, the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs