Citation Nr: 1334813	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  09-37 322A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for a cervix disability, to include cervical dysplasia (claimed as dysplasia/endometriosis).

2.  Entitlement to an initial rating in excess of 30 percent for headaches.

3.  Entitlement to an initial rating in excess of 10 percent for lumbar spine disability.

4.  Entitlement to an initial rating in excess of 10 percent for right wrist disability. 

5.  Entitlement to an initial rating in excess of 10 percent for residuals of burn scar on the left middle finger.

6.  Entitlement to an initial compensable rating for eczema of the right foot.

7.  Entitlement to an initial rating in excess of 50 percent prior to November 13, 2009 and in excess of 70 percent thereafter for an acquired psychiatric disability, to include mood disorder and adjustment disorder (other than posttraumatic stress disorder (PTSD) and bipolar disorder).

8.  Entitlement to an initial rating in excess of 10 percent for nephrolithiasis.

9.  Entitlement to an initial rating in excess of 10 percent for residuals of right first toe bunionectomy, right foot neuroma surgery, and right foot pes cavus (right foot disability).

10.  Entitlement to an initial rating in excess of 10 percent for left foot pes cavus (left foot disability).  


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1998 to May 2008.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  During the course of the appeal, the Veteran's claims file was permanently transferred to the RO in New York, New York which now has jurisdiction over the claims on appeal.

The Veteran submitted an October 2009 substantive appeal, via a VA Form 9, and requested a personal hearing before the Board at the RO.  A hearing was scheduled for August 2012, but the Veteran did not appear and did not provide any explanation for her absence.  Accordingly, her request for a hearing is considered withdrawn and the Board may proceed with review of the claim.  38 C.F.R. § 20.704(d) (2013). 

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

The issue of service connection for bipolar disorder has been raised by the Veteran in an October 2009 statement and the issue of whether new and material evidence has been received to reopen service connection for PTSD has been raised by the November 2011 VA examination report.  These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, they are referred to the AOJ for appropriate action.  

The issues of entitlement to (1) an initial rating in excess of 50 percent prior to November 13, 2009 and in excess of 70 percent thereafter for an acquired psychiatric disability, (2) an initial rating in excess of 10 percent for nephrolithiasis, (3) an initial rating in excess of 10 percent for residuals of right foot disability, and (4) an initial rating in excess of 10 percent for left foot disability 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.  All relevant evidence necessary to decide the Veteran's appeal has been obtained. 

2.  The Veteran was assessed with cervical dysplasia while in active service prior to her period of service in the Southwest Asia theater of operations.  

3.  The Veteran does not have a currently diagnosed cervix disability, to include cervical dysplasia, or residuals therefrom.   

4.  For the entire initial rating period, the service-connected headaches have not manifested severe economic inadaptability.

5.  For the entire initial rating period, the service-connected lumbar spine disability more closely approximates manifestations of limited combined range of motion, at worst, to 220 degrees, painful motion, mild tenderness, and no limited forward flexion, limited combined range of motion to less than 120 degrees, ankylosis, or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour.

6.  For the entire initial rating period, the service-connected right wrist disability more closely approximates manifestations of painful motion and full range of motion with no ankylosis.  

7.  For the entire initial rating period, the service-connected residuals of burn scar on the left middle finger more closely approximates manifestations of full range of motion, painful motion with no additional functional loss.

8.  For the entire initial rating period, the service-connected eczema of the right foot more closely approximates manifestations of topical therapy, itching, flaky skin, and small papules.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a cervix disability, to include cervical dysplasia, have not been met.  38 U.S.C.A. §§ 1110, 1117, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). 

2.  The criteria for an initial rating in excess of 30 percent for headaches have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2013).  

3.  The criteria for an initial rating in excess of 10 percent for lumbar spine disability have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5237 (2013).  

4.  The criteria for an initial rating in excess of 10 percent for right wrist disability have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5215 (2013).  

5.  The criteria for an initial rating in excess of 10 percent for residuals of burn scar on the left middle finger have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5229 (2013); 38 C.F.R. § 4.118, DC 7805 (prior to October 23, 2008).  

6.  The criteria for an initial compensable rating for eczema of the right foot have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7 (2013); 38 C.F.R. § 4.118, DC 7806 (prior to October 23, 2008).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal.

Service Connection for a Cervix Disability

The Veteran requests service connection for a cervix disability, to include cervical dysplasia, due to her diagnoses of cervical dysplasia while in service.

Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service.  It may be granting by affirmatively showing inception or aggravation during service.  Establishing service connection generally requires competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a)(1) (2013).  

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(2).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to menstrual disorders.  38 C.F.R. § 3.317(b)(13).

Compensation under 38 U.S.C.A. § 1117 shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(c)(4)(i).

The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, to include Iraq.  38 C.F.R. § 3.317(e)(1), (2).  The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law.  38 U.S.C.A. § 101(33) (West 2002); 38 C.F.R. § 3.3(i) (2013).  

In this case, the Board finds that the Veteran is a Persian Gulf Veteran as her DD Form 214 reflects that she served in the Southwest Asia theater of operations, specifically Iraq, from November 2007 to April 2008.  Although her claim on appeal is for a menstrual disorder, a review of service treatment records show complaints, symptoms, and onset of dysplasia incurred prior to her service in Iraq, thus not incurred during her service in the Southwest Asia theater of operations during the Persian Gulf War.  As a result, service connection for cervical dysplasia is not warranted on Persian Gulf Veteran basis.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

At the time of entry to service, the Veteran underwent a February 1998 entrance examination; however, the pelvic/vaginal evaluation was not marked as completed.  Service treatment records document the following pap smear results: within normal limits (January 1999 and August 2000), mild dysplasia with changes suggestive of Human Papillomavirus (HPV) (April 2000), atypical [s]quamous cells of undetermined significance - a few cells suggestive of mild dysplasia /  low grade cervical squamous intraepithelial lesions (LSIL) / cervical intraepithelial neoplasia (CIN-1) (March 2002, August 2002, and August 2007), normal (February 2005), abnormal (May 2005, June 2005, September 2007, and May 2008), LSIL (November 2005), and LSIL encompassing HPV/mild dysplasia/CIN-1 (December 2005 and February 2007).  An August 2007 record and the March 2008 separation examination report notes the Veteran's cervical dysplasia.  July 2008 and August 2009 VA outpatient treatment records document in-service pap smear results from April 2008 were within normal limits with no evidence of malignancy.  A May 2011 VA outpatient treatment record also listed her past surgical history [PSH] includes cervix [CX] dysplasia with negative colposcopy [COLPO] results in 2006, 2007, and 2008.  

In connection with the current claim on appeal, the Veteran was afforded a VA gynecological examination in July 2008.  The Veteran complained of very painful, but regular, menses.  The examiner noted his findings of the Veteran's gynecological medical history from review of the claims file, to include an abnormal pap smear in 2000 that revealed mild dysplasia, confirmed by subsequent colposcopy, biopsies, and pap smears, and negative April 2008 pap smear results prior to separation.  Following the physical evaluation, the examiner concluded the Veteran had mild dysplasia of the cervix from 2000 to 2008 with a negative pap smear in April 2008, as well as, dysmenorrhea, severe with suspicion of endometriosis.  

Subsequent VA outpatient treatment records reveal the Veteran had a miscarriage in 2009 and pap smear results of "no evidence of malignance" in August 2009 and normal in March 2011.  Such records are also silent as to any complaints, treatment, or diagnosis of a cervix disability.    

Simply stated, while the Board fully understands the Veteran's concerns, and while the Veteran (it appears) has experienced gynecological symptoms during active service, there are no findings or assertions of a current cervix disability or residuals therefore since separation from active service.

The Veteran was informed in a May 2008 notice letter that she must have evidence of a current disability for her claim on appeal.  She has not presented any competent and probative evidence nor has she provided any information as to where VA could obtain such evidence.  The September 2008 rating decision on appeal denied service connection for this claim based on a determination that dysplasia is not considered a disability for which compensation can be considered.  The same basis for denial was cited in the August 2009 statement of the case (SOC) and June 2011 supplemental statement of the case (SSOC).  The competent and probative evidence demonstrates the Veteran does not show the manifestation of a cervix disability or residuals therefrom at any time since separation from service.  As such, the service connection criteria requiring the presence of a current "disability" have not been met and service connection cannot be granted.  See Brammer, 3 Vet. App. at 225.

For these reasons and bases discussed above, the Board finds that the evidence is against the claim for service connection for a cervix disability.  As a result, this claim must be denied and the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

Claims for Higher Initial Ratings

Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity.  See U.S.C.A. § 1155 (West 2002).  Separate diagnostic codes identify the various disabilities.  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999). 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2013).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  38 C.F.R. § 4.14 (2013); Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In making all determinations, the Board must consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

The Veteran contends that higher ratings are warranted for the following service-connected disabilities.

Headaches

The Veteran's service-connected headaches are rated at 30 percent disabling for the entire initial rating period on appeal from May 29, 2008 to the present.  38 C.F.R. § 4.124a, DC 8100 (2013).  A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and a 50 percent evaluation is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.  50 percent is the maximum rating available under this DC.

The currently-assigned 30 percent disability rating contemplates the Veteran's symptomatology of throbbing and prostrating headaches, as noted in the July 2008 and April 2009 VA general medical examination reports and VA outpatient treatment records, as well as statements by the Veteran.  

The next-higher rating of 50 percent under DC 8100 is not warranted because the evidence of record does not demonstrate her headaches produce severe economic inadaptability at any time during the entire initial rating period, and further consideration of staged ratings is not warranted.  See Fenderson, 12 Vet. App. at 119.

At the July 2008 VA examination, the Veteran reported she can only do a few activities of self-care when she gets her migraine headaches, she has missed eight days of work in the prior two months, and she is currently a student taking online courses.  The April 2009 VA examiner noted there are no effects of the Veteran's mild migraine headaches on usual daily activities, and with regard to the effect on usual occupation, documented "not employed."  The examiner also concluded the "Veteran can function in a normal occupational environment with her service-connected disabilities as she is currently a full-time college student."  VA outpatient treatment records also document the Veteran's occupation as a student.  Moreover, neither the Veteran nor her representative assert that this service-connected disability affects her economic adaptability.  

The Baord is presented with lay and medical evidence.  Although she is competent to report frequency and the impact of the headaches, we conclude that the medical opnion is more probative and credible than her lay opinion.

For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding this service-connected disability for the entire rating period, the Board finds that the evidence is against an initial disability rating in excess of 30 percent for headaches for any period.  38 C.F.R. §§ 4.3, 4.7. 

Service-Connected Musculoskeletal Disabilities

When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45.  The diagnostic codes pertaining to range of motion do not subsume these provisions, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  38 C.F.R. § 4.59 (2013).  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Id.  

The evaluation of the same manifestation under different diagnostic codes is to be avoided.  38 C.F.R. § 4.14 (2013).  If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  See Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  

When rating musculoskeletal disabilities of the extremities, a distinction is made between major (dominant) and minor extremities.

Lumbar Spine Disability

Pursuant to the rating criteria for the spine, the Veteran's service-connected lumbar spine disability is rated at 10 percent disabling for limited combined range of motion to 220 degrees for the entire initial rating period on appeal from May 29, 2008 to the present.  38 C.F.R. § 4.71a, DC 5237 (2013).  

A 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 4.71a, DCs 5235-5242.  

A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.  

A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine.  Id.  

These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Id.  

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id. at Note (2).  See also 38 C.F.R. § 4.71a, Plate V.

The currently-assigned 10 percent disability rating contemplates the Veteran's lumbar spine disability manifestations of limited combined range of motion, at worst, to 220 degrees, painful motion, and mild tenderness.  Specifically, at the July 2008 VA examination, she exhibited forward flexion to 90 degrees, limited extension to 25 degrees, limited left lateral flexion to 20 degrees, limited right lateral flexion to 25 degrees, and full bilateral rotation to 30 degrees.  Her combined range of motion was to 220 degrees.  July 2008 and April 2009 VA examination findings also revealed mild tenderness over the entire lumbar spine area.  Findings of painful motion are discussed below.

A higher rating under DC 5237 is not warranted.  The evidence establishes that she has some functional impairment.  The evaluation contemplates pain on motion and flexion better than 60 degrees.  The evidence also establishes that her remaining functional flexion is better than 60 degrees and that the combined range of motion is better than 120 degrees.  In addition she does not have muscle spasm or guarding severe enough to result in abnormal gait or spinal contour.  Clinical findings from the April 2009 VA examination revealed the Veteran's normal gait, and no ankylosis.  February 2011 and November 2011 VA outpatient treatment records also document no objective findings of scoliosis or muscle spasm.  As the disability ahs not significantly changed, a uniform evaluation is warranted.  See Fenderson, 12 Vet. App. at 119.  

The Board finds that a higher rating is not warranted under DC 5243 as the evidence of record does not show the Veteran has incapacitating episodes due to intervertebral disc syndrome for any period.  See 38 C.F.R. § 4.71a.  The July 2008 and April 2009 VA examination reports show no findings of intervertebral disc syndrome, nor does the Veteran or evidence of record indicate the existence of incapacitating episodes related to the lumbar spine. 

In this case, a separate disability rating is not warranted for any period due to any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, DCs 5235-5243, Note (1).  At the July 2008 VA examination, the Veteran denied radiation of pain and tingling and numbness sensation in the lower extremities, and straight leg raise test was negative bilaterally at the July 2008 and April 2009 VA examinations.  A December 2009 VA outpatient treatment record also documented no spinal cord injury, paralysis, or neurologic disease.  There are also no complaints or findings of bowel or bladder impairment caused by the service-connected lumbar spine disability.  

The Board also considers whether the evidentiary record, to include the Veteran's reported symptomatology, demonstrates additional functional impairment beyond what is contemplated in the currently assigned 10 percent disability rating for any period.  At the July 2008 VA examination, the Veteran complained of low back pain with flare-ups of pain once a week lasting for one to two hours, and upon physical evaluation, there were objective findings of pain on motion with no further decrease in motion.  The examiner noted that, with regard to functional limitation, the Veteran has difficulty with repeated bending and lifting weights and no loss of work reported.  She can walk for about 15 minutes for about a quarter of a mile without severe back pain.  Other activities of daily living are not impaired.  At the April 2009 VA examination, the Veteran complained of low back pain, physical examination findings revealed lumbar stiffness and pain and no flare-ups of spinal disease, and she demonstrated no changes after three repetitions or painful motion.

The Board finds that the Veteran's complaints of pain and symptomatology of mild tenderness, stiffness, and painful motion are adequately contemplated in the currently assigned 10 percent disability rating and the mere presence of pain does not by itself constitute functional loss.  Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination, or endurance.  See 38 C.F.R. § 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. at 205, Mitchell, 25 Vet. App. at 37-43.  As noted, the Veteran did not exhibit additional limitation of motion after repetitive use during the July 2008 and April 2009 VA examinations and her activities of daily living are not impaired by the service-connected lumbar spine disability. 

For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding this service-connected disability for the entire rating period, the Board finds that the evidence is against an initial disability rating in excess of 10 percent for lumbar spine disability for any period.  38 C.F.R. §§ 4.3, 4.7. 

Right Wrist Disability

Pursuant to the rating criteria for the wrist, the Veteran's service-connected right wrist disability is rated at 10 percent disabling for painful motion for the entire initial rating period on appeal from May 29, 2008 to the present.  38 C.F.R. § 4.71a, DC 5215 (2013).  A 10 percent rating is warranted for limitation of motion of the wrist (major or minor), such that dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm.  Id.  10 percent is the maximum rating available under this DC.

The Veteran has been awarded the maximum rating available under DC 5215, and her symptomatology of painful motion is contemplated under 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, 8 Vet. App. at 205.    

A higher rating under DC 5214 for ankylosis of the right wrist is not warranted as the July 2008 and April 2009 VA examination reports document the Veteran does not have ankylosis of the right wrist and she demonstrated range of motion of the right wrist at each VA examination and at VA outpatient treatment sessions.  See 38 C.F.R. § 4.71a.

For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding this service-connected disability for the entire rating period, the Board finds that the evidence is against an initial disability rating in excess of 10 percent for right wrist disability for any period.  38 C.F.R. §§ 4.3, 4.7. 

Service-Connected Skin Disabilities

The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002 (see 67 Fed. Reg. 49490-99 (July 31, 2002)) and again in October 2008 (see 73 Fed. Reg. 54708 (September 23, 2008)).  The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008.  Id.  In this case, the Veteran filed her claim in May 2008.  Therefore, only the post-2002 and pre-October 2008 version of the schedular criteria is applicable.  

Residuals of Burn Scar on the Left Middle Finger

Pursuant to the rating criteria for the skin, the Veteran's service-connected residuals of burn scar on the left middle finger is rated at 10 percent disabling for painful motion of the finger joint under DCs 7805-5229 for the entire initial rating period on appeal from May 29, 2008 to the present.  

DC 7805 provides that scars may also be rated based on limitation of function of the affected part.  See 38 C.F.R. § 4.118 (prior to October 23, 2008).

DC 5229 provides for limitation of motion of individual digits, specifically the index or long finger.  A 10 percent rating is warranted for either major or minor finger for limitation of motion with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees.  See 38 C.F.R. § 4.71a (2013).  10 percent is the maximum rating available under that DC.  The schedular rating criteria for DC 5229 was last amended on August 26, 2002, thus the same criteria was in effect prior to October 23, 2008 to the present.  

The Veteran has been awarded the maximum rating available under DCs 7805-5229.  These diagnostic codes include limitation of motion; hence it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable or to discuss the Veteran's reported history of symptomatology of record regarding the service-connected residuals of burn scar on the left middle finger, to include painful motion, tightness, and hyperpigmentation.  See Johnston, 10 Vet. App. at 85. 

For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding this service-connected disability for the entire rating period, the Board finds that the evidence is against an initial disability rating in excess of 10 percent for residuals of burn scar on the left middle finger for any period.  38 C.F.R. §§ 4.3, 4.7. 

Eczema of the Right Foot

Pursuant to the rating criteria for the skin, the Veteran's service-connected eczema of the right foot is rated as noncompensable (0 percent) for the entire initial rating period on appeal from May 29, 2008 to the present.  38 C.F.R. § 4.118, DC 7806 (prior to October 23, 2008).  

A 0 percent evaluation is provided when less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period.  A 10 percent disability rating is provided when at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period.  A 30 percent disability rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent disability rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period.  Id.  60 percent is the maximum rating available under that DC.

At the VA general medical examination in July 2008, the Veteran complained of an itching rash after wearing socks with tight shoes.  Current treatment consists of topical therapy (steroid cream and Eucerin cream).  She was diagnosed with chronic eczema over the right foot.   

The April 2009 VA general medical examiner noted the Veteran's use of topical therapy (Eucerin and Aquaphor).  Physical examination findings showed rash or other lesions on the dorsum lateral portion of the right foot with flaky skin and small papules.  She was diagnosed with mild eczema of the right foot.  

VA outpatient treatment records also show that in November 2009, Veteran noted itching and rash over exposed parts of arms, neck, abdomen after doing cleaning work at home, contact dermatitis, rash on back and bilateral arms, no patches on skin, normal color, warm, dry, turgor within normal limits.  A December 2009 record documented no patches on the skin

Therefore, as to an initial compensable evaluation under DC 7806, the Board finds that the evidence of record does not show eczema with at least 5 percent or more of the entire body or at least 5 percent or more of exposed areas affected, or; systemic therapy required for any duration of time during the past 12-month period.  See 38 C.F.R. § 4.118 (prior to October 23, 2008).  Accordingly, a compensable evaluation is not warranted under DC 7806 at any time during the entire initial rating period, and further consideration of staged ratings is not warranted.  Fenderson, 12 Vet. App. at 119.

In the alternative, eczema may be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801-7805), depending upon the predominant disability.  38 C.F.R. § 4.118, DC 7806.  

In this case, the service-connected eczema is located on the Veteran's right foot, thus a compensable evaluation under DC 7800 is not applicable.  See 38 C.F.R. § 4.118 (prior to October 23, 2008).  

As to a compensable evaluation under DCs 7801-7805 for scars, the July 2008 VA general medical examiner documents a 0.6 cm-sized hyperpigmented area seen over the lateral aspect of the right foot as a residual of the past eczematous rash.  

DC 7801 provides the rating criteria for scars, other than head, face, or neck, that are deep or that cause limited motion.  Id.  A 10 percent disability rating is warranted for area(s) of at lest 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent disability rating is provided for area(s) exceeding 12 square inches (77 sq. cm.); a 30 percent disability rating is warranted for area(s) exceeding 72 square inches (405 sq. cm.); and a 40 percent disability rating is provided for area(s) exceeding 144 square inches (929 sq. cm.).  Id.  A deep scar is one associated with underlying soft tissue damage.  Id.  The Veteran's scarring due to eczema of the right foot is not shown to be deep or cause limited motion and exceed 12 square inches or greater.  

DC 7802 provides a 10 percent evaluation for scars, other than head, face, or neck, that are superficial and that do not cause limited motion warranting a 10 percent evaluation if they involve an area or areas of 144 square inches (929 sq. cm.) or greater.  Id.  The Veteran's scar due to her eczema of the right foot does not involve an area of 144 square inches or more, but rather is 0.6 cm in size.  

DC 7803 provides a 10 percent evaluation for superficial or unstable scars.  Id.  A superficial scar is one not associated with underlying soft tissue damage, and an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id.  The Veteran's scar due to her eczema of the right foot does not involve frequent loss of covering of the skin over the scar.

DC 7804 provides a 10 percent evaluation for scars, superficial, painful on examination.  Id.  The Veteran's scar associated with eczema of the right foot is not demonstrated to be painful on examination.  

Under DC 7805, scars, other, are rated on limitation of function of the affected part.  DCs 5277-5284 provide for limitation of function of the foot.  See 38 C.F.R. § 4.71a (2013).  Review of the evidentiary record in this case does not demonstrate clinical findings to warrant a compensable rating under a diagnostic code applicable to the foot due to the service-connected eczema of the right foot.  Moreover, neither the Veteran nor her representative assert contend that the worsening of eczema results in functional loss of the right foot.

Accordingly, a compensable evaluation is not warranted under DCs 7800-7805 at any time during the entire initial rating period, and further consideration of staged ratings is not warranted.  Fenderson, 12 Vet. App. at 119.

For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding this service-connected disability for the entire rating period, the Board finds that the evidence is against an initial compensable rating for eczema of the right foot for any period.  38 C.F.R. §§ 4.3, 4.7. 

Additional Considerations for Higher Initial Ratings

With respect to all of the service-connected disabilities on appeal discussed above, the Board considers all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by the Court.  See Schafrath, 1 Vet. App. at 594.  However, after careful review of the available diagnostic codes, and consideration of the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign higher ratings for these disabilities on appeal at any time during the initial rating periods.

The Board also considers whether an extra-schedular rating is warranted because an extra-schedular rating may be provided in exceptional cases.  38 C.F.R. § 3.321 (2013).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

Under the approach prescribed by VA, 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.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. 

The Court has held that VA's disability-by-disability interpretation of 38 C.F.R. 3.321(b)(1) is not unreasonable, plainly erroneous, or inconsistent with the regulation or the statutory and regulatory scheme when viewed as a whole, thus the Board was not required to consider whether a veteran's was entitled to referral for extra-schedular consideration of the service-connected disabilities on a collective basis.  See Johnson v. Shinseki, 26 Vet. App. 237, 239-40 (2013).  

With regard to the service-connected headaches, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by this disability, to include increased light and noise sensitivity, nausea, and dizziness as reported at the July 2008 VA examination.  A higher evaluation of 50 percent is provided under the schedular rating criteria (DC 8100) for certain manifestations of the service-connected disability at issue, specifically including frequency and severity of prostrating attacks and the degree of impairment with employment (severe economic inadaptability), but the competent evidence reflects that those manifestations are not present in this case.  

With regard to the service-connected lumbar spine disability, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by this disability, to include limited combined range of motion, painful motion, and mild tenderness.  A higher evaluation is provided under the schedular rating criteria (DC 5237) for certain manifestations of the service-connected disability at issue, specifically including limited forward flexion, ankylosis, or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, but the competent evidence reflects that those manifestations are not present in this case.    

With regard to the service-connected right wrist disability, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by this disability, to include limitation of ulnar deviation, pain, popping, occasional numbness, and mild tenderness.  A rating in excess of the 10 percent rating currently assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflect that those manifestations are not present in this case.  The currently assigned 10 percent disability rating contemplates the Veteran's documented limitation of motion and complaints of pain, popping, numbness, and mild tenderness and the effects of such impairment were explicitly taken into account and considered in applying the relevant criteria in the rating schedule.  See 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5215; DeLuca, 8 Vet. App. at 205.  For the entire initial rating period and under DC 5214, the competent and more probative evidence of record does not show this right wrist disability has been manifested by ankylosis for a higher disability rating.  

With regard to the service-connected burn scar on left middle finger, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by this disability, to include painful motion with no additional functional loss.  

With regard to the service-connected eczema of right foot, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by this disability, to include itching, flaky skin, and small papules.  A higher evaluation is provided under the schedular rating criteria (DC 7806) for certain manifestations of the service-connected disability at issue, specifically including at least 5 percent or more of the entire body or exposed areas affected and systemic therapy, but the competent evidence reflects that those manifestations are not present in this case.  

There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards.  For these reasons, referral for extra-schedular consideration for the service-connected disabilities on appeal discussed above is not required.  The Board further notes that, in a June 2011 rating decision, the RO granted a total disability rating based on individual unemployability (TDIU), effective November 13, 2009.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

The Board finds that the VCAA notice requirements have been satisfied by a May 2008 letter.  In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show she had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  

As to informing the Veteran of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf, VA informed the Veteran it had to obtain any records held by any federal agency.  This letter also informed the Veteran that on her behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the letter told the Veteran that she could obtain private records herself and submit them to VA.

The VCAA 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.  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.  The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the May 2008 letter included the type of evidence necessary to establish a disability rating and effective date. 

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with the claims on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, statements from the Veteran, and VA examination reports dated July 2008, April 2009, and April 2011.  The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale.  The Board notes that the VA examination reports are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

The Board acknowledges the Veteran's most recent VA examination for the service-connected disabilities decided above was approximately 4 years ago.  In addition, the Veteran's representative noted the Veteran's contentions that these service-connected disabilities on appeal are worse than the current rating shows.  Nevertheless, an additional VA examination is not warranted for the claims on appeal decided above because the evidence of record, including the Veteran's contentions, does not explain or suggest how such worsening has occurred or indicate that these disabilities have become more severe since the April 2009 VA general medical examination to warrant updated examinations. 

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal.  The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained.  Therefore, no further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).


ORDER

Service connection for a cervix disability, to include cervical dysplasia (claimed as dysplasia/endometriosis), is denied.

An initial rating in excess of 30 percent for headaches is denied.

An initial rating in excess of 10 percent for lumbar spine disability is denied.

An initial rating in excess of 10 percent for right wrist disability is denied. 

An initial rating in excess of 10 percent for residuals of burn scar on the left middle finger is denied.

An initial compensable rating for eczema of the right foot is denied.


REMAND

A remand is required in this case to ensure there is a complete record upon which to decide the remaining issues on appeal.  

With regard to the issue of an initial rating in excess of 50 percent prior to November 13, 2009 and in excess of 70 percent thereafter for an acquired psychiatric disability, to include mood disorder and adjustment disorder (other than PTSD and bipolar disorder), the Board observes that additional development is required prior to adjudication of the claim.  

In November 2011, the Veteran underwent a VA Disability Benefits Questionnaire (DBQ) examination for PTSD.  The examiner, a VA clinical psychologist, listed the Axis I diagnosis as bipolar disorder.  The VA psychologist also determined the Veteran has a diagnosis of PTSD that conforms to the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) of the American Psychiatric Association (DSM-IV) criteria based on the psychiatric evaluation, the Veteran's PTSD is at least as likely as not caused by or the result of her traumatic military experience, and the Veteran's claimed stressor is related to her fear of hostile military activity.  Clinical findings further noted the Veteran has more than one mental disorder diagnosed, and it is not possible to differentiate what symptom(s) is/are attributable to each diagnosis or what portion of the identified occupational and social impairment is caused by each mental disorder.

In light of the pending service connection claim for bipolar disorder, filed by the Veteran in October 2009 that has not yet been adjudicated, and the November 2011 VA medical opinion linking her PTSD to fear of hostile military activity, the Board finds that the outcome of these outstanding claims may have an impact on the Veteran's claim for a higher initial rating for the service-connected acquired psychiatric disability.  Moreover, the November 2011 VA examiner opined it is not possible to differentiate her psychiatric symptoms to each diagnosis.  Therefore, these issues are inextricably intertwined.  See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).  Thus, while the Board refers back the issues of service connection for bipolar disorder and whether new and material evidence has been received to reopen service connection for PTSD to the AOJ for initial adjudication, these issues must be considered together, and a decision by the Board on the claim for a higher rating for the service-connected acquired psychiatric disability would, at this point, be premature.

With regard to the issue of entitlement to an initial rating in excess of 10 percent for nephrolithiasis, the last VA examination in connection with this service-connected disability was in April 2009.  Since that examination, VA outpatient treatment records indicate a possible increase in severity.  Treatment records associated with the claims file on the "Virtual VA" system" note existence of kidney stones in December 2009 and May 2010. 

The Board finds that an additional VA examination is deemed necessary to ascertain the Veteran's current severity and degree of her service-connected nephrolithiasis during the appeal period since the April 2009 VA examination approximately four years ago.  When available evidence is too old for an adequate evaluation of a veteran's current condition, VA's duty to assist includes providing a new examination.  Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993).  While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has interpreted that a new examination is appropriate when there is an assertion of an increase in severity since the last examination.  

With regard to the issues of entitlement to an initial rating in excess of 10 percent for right first toe disability and an initial rating in excess of 10 percent for left foot disability, the Veteran was afforded VA examinations in July 2008 and April 2009.  These examination reports do not provide range of motion testing of the right and left ankles.  These findings are pertinent to the rating criteria for the foot under 38 C.F.R. § 4.71a, DC 5278.  

Once the Secretary undertakes the effort to provide an examination, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced); see also Stefl v. Nicholson, 21 Vet. App 120 (2007); see Daves v. Nicholson, 21 Vet. App. 46, 52 (2007); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (concluding that inadequate medical evaluation frustrates judicial review).  As a result, the Board finds that an additional VA examination is necessary to ensure there is a complete record upon which to decide the service-connected right and left foot disabilities on appeal.  

Accordingly, these remaining issues are REMANDED for the following actions:

1.  Adjudicate the issues of (1) service connection for bipolar disorder and (2) whether new and material evidence has been received to reopen service connection for PTSD.  

After completion of the above actions and the entire psychiatric disability picture is resolved, readjudicate the issue of entitlement to an initial rating in excess of 50 percent prior to November 13, 2009 and in excess of 70 percent thereafter for an acquired psychiatric disability.  If the benefit sought on appeal is not granted, the Veteran and her representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

2.  Schedule the Veteran for the appropriate VA examination to determine the nature and current severity of her service-connected nephrolithiasis.  The relevant documents in the claims file should be made available to the VA examiner for review.  All indicated studies and tests, deemed necessary by the examiner, should be performed and all pertinent symptomatology should be reported in detail.  The VA examiner should also request a history from the Veteran.  A notation to the effect that the record review and history took place should be included in the examiner's report.  

The examiner also should comment upon the presence, if any, of (1) recurrent stone formation requiring diet therapy, drug therapy, and/or invasive or non-invasive procedures more than two times/year; (2) frequent attacks of colic, requiring catheter drainage; and (3) frequent attacks of colic with infection (pyonephrosis), kidney function impaired.

If an opinion or the requested information cannot be provided without resorting to speculation, the VA examiner should state so and explain why it would be speculative to respond.  

3.  Schedule the Veteran for the appropriate VA examination to determine the nature and current severity of her service-connected right and left feet disabilities.  The relevant documents in the claims file should be made available to the VA examiner for review.  

All indicated studies and tests, deemed necessary by the examiner, should be performed and all pertinent symptomatology should be reported in detail, including range of motion testing of the right and left ankles.  The VA examiner should also request a history from the Veteran.  A notation to the effect that the record review and history took place should be included in the examiner's report.  

The examiner also should comment upon the presence, if any, of (1) the degree of tenderness under metatarsal heads, (2) toes tending to dorsiflexion, (3) plantar fascia, (4) hammer toes, and (5) painful callosities.

If an opinion or the requested information cannot be provided without resorting to speculation, the VA examiner should state so and explain why it would be speculative to respond.  

4.  Thereafter, readjudicate the issues of entitlement to (1) an initial rating in excess of 10 percent for nephrolithiasis, (2) an initial rating in excess of 10 percent for right foot disability, and (3) an initial rating in excess of 10 percent for left foot disability.  If the benefits sought on appeal are not granted, the Veteran and her representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2013).

These claims 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. 2013).



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs