Citation Nr: 1327443 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 01-01 608A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral wrist disorder. 2. Entitlement to service connection for chest pain. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to an effective date prior to June 22, 2006 for the award of service connection for bilateral upper extremity radiculopathy associated with his cervical spine disorder. 5. Entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability for the period from June 13, 1997 to July 5, 2011, in excess of 20 percent for the period from July 6, 2001 to January 18, 2012, and in excess of 40 percent thereafter. 6. Entitlement to an initial evaluation in excess of 10 percent for a cervical spine disability for the period from June 13, 1997 to February 11, 2008, in excess of 20 percent from February 20, 2008 to July 19, 2011, and in excess of 30 percent thereafter. 7. Entitlement to an initial compensable evaluation for right lower extremity radiculopathy associated with lumbar spine disability for the period from June 13, 1997 to October 21, 2011, and in excess of 10 percent thereafter. 8. Entitlement to an initial compensable evaluation for headaches for the period from June 13, 1997 to October 21, 2011, and in excess of 30 percent thereafter. 9. Entitlement to an initial compensable evaluation for a right foot disability. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1994 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The issues listed above have been appealed by the Veteran. The Veteran testified at a Board hearing before the undersigned a former Veterans Law Judge in February 2006; a transcript of that hearing is associated with the claims file. That Veterans Law Judge has retired from the Board, and the Veteran was informed of that fact in February 2006, but declined another hearing. However, in March 2010, the Veteran requested a hearing and the Board remanded for such to be scheduled in November 2010. The Veteran was scheduled for an April 2013 hearing in a February 2013 letter. The Veteran failed to report for that hearing and no good cause has been provided as of this time for that failure to report. The Board therefore deems the request for a hearing withdrawn and will proceed to adjudication of the claims on appeal at this time. All of the issues, except the claim for increased evaluation of headaches, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period from June 13, 1997 to February 11, 2008, the Veteran's headaches are not shown to be daily in frequency or to last for several hours; they are shown to be less frequent and non-prostrating in nature. His symptomatology is more closely approximate to a characteristic prostrating attack averaging one every two months. 2. Beginning February 12, 2008, the Veteran's headache symptoms demonstrate a marked increase to daily attacks lasting several hours, which is shown to be very frequent prostrating and prolonged attacks; however, they are not shown to be completely prostrating or productive of severe economic adaptability. CONCLUSIONS OF LAW 1. The criteria establishing a 10 percent evaluation, but no higher, for headaches for the period of June 13, 1997 to February 11, 2008, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2012). 2. The criteria establishing a 30 percent evaluation, but no higher, for headaches beginning February 12, 2008, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased evaluation claim for headaches arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at previous hearings before a former Veterans Law Judges. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran's headaches have been assigned a noncompensable evaluation from June 13, 1997 to October 21, 2011, which was increased to 30 percent disabling beginning October 22, 2011. The Veteran's headaches have been assessed under Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable evaluation is assigned for less frequent attacks. A 10 percent evaluation is warranted when there is evidence of characteristic prostrating attacks averaging once every two months over the past several months. A 30 percent evaluation is applicable when there are characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is applicable when there are very frequent completely prostrating and prolonged attacks which are productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). Turning to the evidence of record, the Board notes that the Veteran's private treatment records from Dr. M.S.S., D.C. in February 1998 demonstrate that he reported that he has headaches once or twice a week, which were sharp, intermittent and occurred at approximately 5 or 6 o'clock at night-about the time he was arriving home from work-and lasted about 3 to 5 minutes. Likewise, VA treatment records from the same time period-1998-demonstrate complaints of frontal headaches. The Veteran's headaches were not evaluated in either the private or VA records at that time; rather treatment focused on his complaints of lumbar and cervical spine pain. In a February 1999 VA general medical examination, the Veteran reported having neck pain which radiated to the occipital area of his head and then to the frontal part of his head. No diagnosis of headaches was made at that time, and on examination, the Veteran's head was not tender over the sinuses. In his January 2002 substantive appeal, the Veteran stated that he had "reoccurring headaches," though he did not give any further details at that time. The Veteran submitted private chiropractic records from Dr. T.Z. from 2007. Complaints of headaches in those records began in early May 2007, after a car accident the day before; those complaints continued throughout the records with what appears to be a decreasing severity until after July 2007 when complaints of headaches stopped in those private chiropractic records. The Veteran additionally submitted 2007 treatment records from the Alabama Pain and Injury Clinic, which document a headache complaint in August 2007. Other than the report of its presence, no other information regarding the nature and severity of the headache at that time is noted. In February 12, 2008, the Veteran underwent a VA examination, during which he reported having daytime headaches that generate from the occipital region, last several hours, and are relieved by rest and analgesics. Such headaches were frequently associated with chronic neck and shoulder pain. No diagnosis of headaches was made at that time. In a November 2008 statement, the Veteran reported that his "headaches exist daily even nervous twitches of the brain." The Veteran underwent a VA examination of his headaches in January 2009. At that time, he reported that he fell and hit his head on the gym floor during service in June 1995 and that his headaches began at that time. He reported that his headaches have progressively worsened since that time and that he currently only treated that condition with 500 milligrams (mg) of Naproxen daily; his response to treatment was fair, though it caused him to suffer from fatigue. He reported that his headaches develop from spine pain that radiates into his head. The Veteran had no history of hospitalization or surgery, trauma or neoplasm. His motor strength, muscle tone and muscle bulk were normal, as was his sensory examination, including light tough, pin prick, vibratory sense and position sense. He also had normal mental and fundoscopic examinations. His cranial nerves were intact, and he had normal reflexes and cerebellar function. There was no evidence of chorea or a carotid bruit. X-rays of his skull showed no skull fractures were present. He was diagnosed with a non-migrainous headache. The examiner noted that the Veteran's toileting was mildly impaired, and his ability to do chores, shopping, exercise, sports, recreation, traveling, feeding, bathing dressing and grooming were all moderately impaired. The examination was merely copied into the October 2009 examination report prepared by the same examiner. The Veteran additionally submitted private chiropractic records from Health Star Chiropractic from 2011; in those records, the Veteran describes having headaches in April and May 2011, which are generally sharp or aching, though he described them as dull towards the end. He additionally generally reported them as being frequent or occasional, though he reported them as continuous once in those records. The Veteran additionally reported the intensity of an 8 and 6 once each, but otherwise generally reported a 3 or 4, with a decline to an intensity level of 1 by the end of his reporting in May 2011. The Board notes that he reported headaches over the course of approximately a week or two, with no report prior to or after that time even though he was receiving treatment both prior to and after that period. In a July 2011 VA examination for his spine conditions, the Veteran was noted as taking 500 mg daily of Naproxen at that time for those conditions. He did report that he had occasional headaches approximately 4 times a week for a couple of hours. No further report or examination of the headaches occurred at that time. The Board has additionally reviewed the VA treatment records in the claims file from 1997 through the most recent addition in June 2011. Those records generally are absent of any complaints of or treatment for headaches. The Board additionally notes that in May 2007, October 2007, and November 2008 treatment records the Veteran specifically denied the presence of any headaches. The Board has additionally reviewed the Social Security records in the claims file, and note that those records focus solely on the Veteran's rheumatoid arthritis, though they also include duplicates of several of the noted treatment records above. In October 2011, the Veteran underwent a VA examination for his headaches. The Veteran was shown to have been diagnosed with headaches since sustaining a fall in service in 1995 playing basketball. He took over-the-counter Aleve for his headaches. During the examination, the Veteran endorsed pulsating or throbbing head pain, pain on both sides of his head, pain that worsens with physical activity, and sensitivity to light and sound. He stated that the pain was pounding and throbbing of the head, which started in the back and migrated to his bilateral temples. He reported having a headache every other day lasting 45 minutes to an hour. The examiner noted that the Veteran had migraine-type headaches more frequently than once a month. However, the examiner noted that the Veteran had "very frequent prostrating and prolonged attacks of migraine headache pain." The functional impact of his headaches was that he was "allowed to stop work and go to the breakroom and lay his head down until [his] headache ease[d] up. State[d] his employer [was] aware and work[ed] with him where this time [was] charted as his lunch break." Finally, in March 2012, the Veteran underwent another VA examination of his headaches in conjunction with a Traumatic Brain Injury (TBI) examination. The Veteran reported having daily headaches that were moderate to severe throbbing and sharp pain-type to the occipital area that radiated to the frontal aspect of the head; they lasted for several hours. He reported having to stop functioning with his headaches and they caused a problem with nausea; noise and light were also aggravating. He used Aleve and Naproxen to treat his headaches. On examination, the Veteran had pulsating or throbbing head pain of the occipital area of the head, which radiated to the frontal aspect of his head. He also had nausea and sensitivity to light and sound. The head pain typically lasted less than a day. At that time, the Veteran was noted as having characteristic prostrating attacks more frequently than once a month, he had "very frequent prostrating and prolonged attacks of migraine head pain." The examiner checked the box that the Veteran's headache condition did not impact his ability to work. Based on the foregoing evidence, the Board finds that a 10 percent evaluation is warranted for the period of June 13, 1997 to February 11, 2008, and that the 30 percent evaluation, but no higher, should be awarded beginning February 12, 2008-the date of the Veteran's first report of daily headaches that lasted several hours. The rationale is as follows. The Board notes that the Veteran's headaches from 1997 to 2008, through the private and VA treatment records demonstrate reports of headaches, but that they were not daily or long-lasting in duration. In 1998, the Veteran reported that they were daily but lasted 3 to 5 minutes. The Board notes that from 1997 to 2007 the Veteran did not report or seek treatment for those headaches and they were not shown to be prostrating attacks. The Board finds this to be very telling. While the Veteran had frequent headaches non-prostrating attacks during this period, his headaches were manageable, did not appear to be daily in frequency, and were not of long-lasting duration. In light of the frequency and intensity of these headaches, however, the Board finds that his headaches more closely approximate to being prostrating attacks which averaged one every two months. Such commensurates to a 10 percent evaluation under Diagnostic Code 8100 for that period of time. It is not until the general medical examination on February 12, 2008, that the Veteran began reporting headaches that were daily in frequency and that lasted several hours. While the headaches are not noted as being prostrating until the October 22, 2011 examination, the headache symptomatology during the February 2008 examination is demonstrably increased from a few headaches on a weekly basis to daily headaches and from 3 to 5 minutes to several hours in duration. The Board notes that such reports demonstrate a marked increase in the Veteran's headache symptomatology in relationship to the previous reporting of that symptomatology in the record. Accordingly, the Board finds that a 30 percent evaluation is warranted as of the February 12, 2008 VA examination. The Board, however, finds that a higher evaluation beginning February 12, 2008 is not applicable in this case. The Board notes that the Veteran is shown to have frequent to daily headaches that last 45 minutes to an hour or several hours in duration, depending on his reporting, throughout that period. The VA examiners in 2011 and 2012 described the Veteran's functional impact as being moderate to severe, but also noted that he was not occupationally unable to function. The 2011 examiner specifically noted that the Veteran's employer allowed him stop working and chart his time at work when he was relieving his headache symptoms as his lunch break instead of charging him leave time or otherwise affecting the Veteran's ability to work. The Board finds therefore that it does not appear that the Veteran's headaches after February 2008 are cause severe affecting in his economic adaptability. Likewise, it does not appear that they are "completely" prostrating in nature. In fact, in the Veteran's most recent VA examination, his headaches were shown to last less than a day in duration. While prostrating headaches are noted, the Veteran is not completely unable to function for days or weeks as a result of his headaches. Accordingly, the Board finds that a 10 percent evaluation for his headaches is warranted for the period from June 13, 1997 to February 11, 2008 and beginning February 12, 2008, a 30 percent evaluation, but no higher, is warranted. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected headaches, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A 10 percent evaluation for headaches for the period of June 13, 1997 to February 11, 2008 is granted. A 30 percent evaluation, but no higher, for headaches, beginning February 12, 2008, is granted. REMAND With regards to the Veteran's increased evaluation claims for his lumbar and cervical spine disabilities, the Veteran's last VA examination of those disabilities was in January 2012. After review of that examination report, the Board finds that it is inadequate. While the examiner adequately assessed the current Rating Schedule, the Board notes that the old Rating Schedule from prior to the regulatory changes in 2002 and 2003 are applicable in this case. The examiner did not address those rating criteria in the January 2012 examination report, nor does it appear that the RO/AMC have considered whether those old Rating Schedule criteria are potentially applicable to give the Veteran a higher evaluation at this time. Accordingly, the Board finds that those claims should be remanded at this time. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). With regard to the Veteran's bilateral wrist disorder, the Veteran is claiming bilateral wrist weakness with associated numbness and tingling of his hands. The Board notes that no diagnosis of any bilateral wrist and/or hand disabilities have been made, and the Veteran is only service-connected for radicular symptoms of the upper radicular group at this time, which does not affect his wrists or hands. As the Board is remanding for another VA examination of his cervical spine, the Board notes that the bilateral wrist disorder claim should also be remanded in order to obtain an opinion as to whether the Veteran's bilateral wrist claim is a neurological component of his radicular symptomatology associated with this cervical spine disability. Additionally, the Veteran's claims for right lower extremity radiculopathy and TDIU are also intertwined with the lumbar and cervical spine claims, and thus, they are also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Turning to the right knee disorder, the Veteran is currently service connected for a left knee and bilateral foot disabilities in addition to his lumbar spine disability. Given the amount of low back and lower extremity disabilities he is service connected for, the Board finds that a VA examination is necessary in this case which addresses both direct and secondary service connection theories of entitlement. Thus, the Board finds that a remand of that issue is necessary. See Barr, supra. Also, the Veteran underwent a VA examination for his chest pain in October 2009, at which time the diagnosis was no associated diagnosis, though the problems noted with the diagnosis include costrochondritis. In a previous VA examination, the Veteran was diagnosed with costochondritis. The Board recognizes that costrochondritis involves an inflammatory process in the costal cartilage. In this case, the Board finds that the examiner did not adequately address whether costrochondritis is the diagnosed condition or merely a symptom of a larger disease process. Accordingly, the Board finds that a clarification is necessary on remand. See Id. With respect to the earlier effective date claims, the Veteran has argued that he has had bilateral radicular symptoms since discharge from service and therefore the same date assigned to his cervical spine disability should be assigned to his radicular evaluations as well. The RO has instead assigned the date of claim for which the Veteran stated that wanted service connection for his associated neurological symptoms. In this case, it appears to the Board that the Veteran's cervical spine and associated neurological symptoms are subject to two different Rating Schedules. On September 26, 2003, VA changed the cervical spine rating criteria to the current criteria, which included a specific provision under Note (1) that all associated neurological symptoms were to be separately evaluated. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). Prior to that, under the Rating Schedule in effective prior to the regulatory change, it appears that the neurological component of the Veteran's cervical spine disability was factored into the Veteran's disability evaluation. See, e.g., 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5293 (2002). Thus, as the cervical spine disability evaluation has been ongoing appellate claim since prior to the regulatory change, the Veteran appears to be entitled to an effective date of September 26, 2003, at the earliest, if the evidence of record establishes that his bilateral upper extremity radiculopathy existed at that time, or prior to the currently assigned June 22, 2006-since on September 26, 2003, the RO should have been determining whether the Veteran had radicular symptoms associated with his cervical spine regardless of whether he filed a separate claim for those symptoms or not, as the Rating Schedule for the cervical spine specifically instructed them to do so. As the RO has not discussed the existence of any radicular symptomatology of the upper extremities prior to June 22, 2006 in this case, the Board finds that a remand is necessary in order for the RO to re-evaluate the Veteran's effective date claims in light of the cervical spine Rating Schedule change and its effect on the assigned effective dates in this case. Finally, with regards to the increased evaluation claim for the right foot disability, the Board notes the Veteran's left foot-not currently on appeal-is evaluated as 10 percent disabling for degenerative changes under Diagnostic Code 5276 for flatfeet. The Veteran's most recent VA examination of his right foot demonstrated that there is bilateral pes planus (flatfeet) and hallux valgus. The Veteran's right foot disability is currently assigned a noncompensable evaluation under Diagnostic Code 5280 for unilateral hallux valgus. It does not appear that the RO has considered whether the Veteran's right and left foot disability should be compensated together as a bilateral pes planus disability, which would potentially combine to a higher evaluation under Diagnostic Code 5276. On remand, the Board finds that the RO/AMC should conduct another VA examination of the Veteran's right foot, and then specifically consider whether a compensable evaluation for the Veteran's right foot is applicable under Diagnostic Code 5276 for bilateral pes planus. Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Montgomery VA Medical Center, or any other VA medical facility that may have treated the Veteran, since April 2012 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his lumbar and cervical spine disorders-and any associated neurological issues-bilateral wrist, right knee, claimed chest pain, and right foot disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for VA orthopedic and neurologic examinations in order to determine the current severity of his lumbar spine disability and associated neurologic disabilities. The claims file must be made available to and be reviewed by the examiner(s) in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The VA examiner is directed to conduct range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must equate all functional losses, including those due to flare-ups to additional loss of motion (beyond what is shown clinically). The examiner is also directed to specifically comment on the following: (a) Whether the Veteran has muscle spasms or guarding severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's lumbar spine. (c) Whether the Veteran experiences incapacitating episodes requiring physician-prescribed bed rest. The frequency and duration of such episodes should be noted. (d) The examiner is also asked to assess whether any intervertebral disc syndrome is: cured post-operatively; mild; moderate with recurring attacks; severe with recurring attacks and intermittent relief; or, pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5273 (2002). (e) The examiner must also identify all associated neurological abnormalities associated with the service-connected lumbar spine disorder, particularly the presence of right lower extremity radiculopathy. Each nerve affected or seemingly affected should be identified and the impairment of each nerve caused by lumbar spine disability should be described as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves or nerves seemingly affected. (f) The examiner should also state whether the limitation of motion with accompanying functional losses due to pain, etc. affecting the lumbar spine disability equate to disability that is less than slight, slight, moderate or severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). (g) The examiner should finally note whether the Veteran has symptoms analogous to a lumbosacral strain, and if so, should comment as to whether such is: slight subjective symptoms only; characteristic pain on motion; muscle spasms on extreme forwarding with loss of lateral spine motion or unilateral while in standing position; over severe symptomatology with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space; or, some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). The examiner should specifically discuss any lay evidence from the Veteran regarding the nature and severity of his symptomatology throughout the appeal period. If the examiner finds that any previous VA examinations findings do not accurately reflect the level of disability (particularly with regards to application of the Old Rating Schedule criteria in post-2002 examinations during which the examiner's did not specifically contemplate the regulatory changes), an explanation should be provided for such a conclusion, with references to the record and/or medical principles as necessary. All opinions must be accompanied by an explanation. If the examiner finds that any of the above questions cannot be answered without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for VA orthopedic and neurologic examinations in order to determine the current severity of his cervical spine disability and associated neurologic disabilities. The claims file must be made available to and be reviewed by the examiner(s) in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The VA examiner is directed to conduct range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must equate all functional losses, including those due to flare-ups to additional loss of motion (beyond what is shown clinically). The examiner is also directed to specifically comment on the following: (a) Whether the Veteran has muscle spasms or guarding severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's cervical spine. (c) Whether the Veteran experiences incapacitating episodes requiring physician-prescribed bed rest. The frequency and duration of such episodes should be noted. (d) The examiner is also asked to assess whether any intervertebral disc syndrome is: cured post-operatively; mild; moderate with recurring attacks; severe with recurring attacks and intermittent relief; or, pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5273 (2002). (e) The examiner must also identify all associated neurological abnormalities associated with the service-connected cervical spine disorder, particularly the presence of upper extremity radiculopathy. Each nerve affected or seemingly affected should be identified and the impairment of each nerve caused by cervical spine disability should be described as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves or nerves seemingly affected. (f) It should also be specifically noted whether the cervical spine disability has caused any bilateral wrist neurological defects, which particularly include numbness, tingling and weakness of his bilateral wrists and hands. If not, the examiner should also comment as to whether there is any other disease process which would account for the Veteran's claimed bilateral wrist symptomatology, such as carpel tunnel syndrome. THE EXAMINER SHOULD CONDUCT ANY EXAMINATION OF THE BILATERAL WRISTS AND GIVE ANY APPLICABLE MEDICAL OPINIONS AS DEEMED NECESSARY. (g) The examiner should finally state whether the limitation of motion with accompanying functional losses due to pain, etc. affecting the cervical spine disability equate to disability that is less than slight, slight, moderate or severe. 38 C.F.R. § 4.71a (2003). The examiner should specifically discuss any lay evidence from the Veteran regarding the nature and severity of his symptomatology throughout the appeal period. If the examiner finds that any previous VA examinations findings do not accurately reflect the level of disability (particularly with regards to application of the Old Rating Schedule criteria in post-2002 examinations during which the examiner's did not specifically contemplate the regulatory changes), an explanation should be provided for such a conclusion, with references to the record and/or medical principles as necessary. All opinions must be accompanied by an explanation. If the examiner finds that any of the above questions cannot be answered without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any right knee disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should opine as to whether any right knee disorder, including any arthritic condition thereof, more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include the noted basketball injury. The examiner should specifically address the pertinent evidence in the service treatment records and the post-service treatment records. The Veteran's lay evidence regarding onset of and medical history of his right knee disorder should also be discussed. The examiner must also discuss whether any right knee disorder-not shown to be related to service-is more likely, less likely or at least as likely as not caused by his service-connected disabilities, to specifically include any aggregated alteration in his gait and/or weightbearing based on those disabilities. The examiner should further opine whether the Veteran's right knee disorder, should it not be related to service or caused by a service-connected disability, is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected disabilities and their aggregated effect on his gait and/or weightbearing. If aggravation is found, the examiner should quantify the approximate degree of aggravation to the best of his/her ability. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed explanation as to why this is so must be provided. The medical reasons for accepting or rejecting the Veteran's history and theories of entitlement should be set forth in detail. 6. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any chest pain. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, and the results reported in the record. The examiner should state any chest disorder found, to include a discussion as to whether the Veteran's costochondritis is a chronic disability or merely a symptom of some other disorder-or whether such is just merely pain that is not a disability at all. For each chest disorder found, the examiner should indicate whether it more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service, to include notations of chest pain therein. The examiner should specifically discuss the Veteran's lay evidence regarding his symptoms during and after service. The examiner should additionally discuss any other relevant and pertinent medical evidence in the record. The medical reasons for accepting or rejecting the Veteran's report of in-service injury and continuity of symptoms thereafter should be set forth in detail. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed explanation as to why this is so must be provided. The medical reasons for accepting or rejecting the Veteran's history and theories of entitlement should be set forth in detail. 7. Schedule the Veteran for a VA foot examination in order to determine the current severity of his right foot disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify all symptomatology associated with the Veteran's right foot disability. The examiner should specifically indicate whether the Veteran's symptomatology is representative of a mild, moderate, moderately severe or severe disability. The examiner should also specifically discuss the following, if the Veteran is shown to have right foot bilateral pes planus or hallux valgus: (a) Whether the Veteran's symptoms are mild, and his symptomatology is relieved by built-up shoe or arch support; (b) Whether his symptoms are moderate, with weightbearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet; (c) Whether his symptoms are severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; or, (d) Whether his symptoms are pronounced, with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. (e) Whether the Veteran's right hallux valgus is severe and/or equivalent to the amputation of the right great toe, or if there has been an operation with resection of the metatarsal head. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 8. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims, to include the specific contemplation of the following for each claim as noted: (1) Increased evaluation of the Veteran's lumbar spine disability, to include the pre-2002 and 2003 regulations that were in effect on service connection in 1997 for the entire appeal period (including potential application of: 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289, 5292, 5293, and 5295 (2002)); (2) Increased evaluation for the Veteran's right lower extremity radiculopathy associated with his lumbar spine disability; (3) Increased evaluation for the Veteran's cervical spine disability, to include the pre-2002 and 2003 regulations that were in effect on service connection in 1997 for the entire appeal period (including the potential application of: 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5287, 5290 and 5293 (2002)); (4) Effective date claims for the awards of service connection for bilateral upper extremity radiculopathy associated with cervical spine disability prior to June 22, 2006, to specifically include determination of whether such should be awarded as separate evaluation prior to, on or after September 26, 2003 with the advent of the regulation change in evaluating cervical spine disabilities; (5) Increased evaluation of the Veteran's right foot disability, to specifically include whether such disability should be assigned a combined evaluation with his left foot disability under Diagnostic Code 5276 for bilateral flatfeet; (6) Service connection for bilateral wrist disorder (claimed as bilateral wrist weakness), to include whether separate evaluations are warranted due to neurological involvement associated with the Veteran's cervical spine disability; (7) Service connection for chest pain; (8) Service connection for a right knee disorder, to include as secondary to service-connected disabilities; and, (9) Entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs