Citation Nr: 1335518 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-30 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a lumbosacral spine strain. 2. Entitlement to a compensable rating for residuals of a right heel trauma. 3. Entitlement to a compensable rating for residuals of a right elbow trauma prior to May 31, 2006. 4. Entitlement to a rating in excess of 10 percent for residuals of a right elbow trauma since May 31, 2006. 5. Entitlement to service connection for neuropathy of the upper extremities also claimed as secondary to service-connected disabilities. 6. Entitlement to service connection for neuropathy of the lower extremities, also claimed as secondary to service-connected disabilities. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active military service from November 1973 to December 1975. These matters are on appeal from an August 2001 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that, in pertinent part, increased the rating from 10 percent to 20 percent for residuals of a lumbosacral spine strain, effective July 17, 2000; continued noncompensable ratings for residuals of a right heel trauma and a right elbow trauma; and denied service connection for peripheral neuropathy. A December 2006 rating decision increased the rating form 0 percent to 10 percent for the Veteran's residuals of a right elbow trauma, effective May 31, 2006. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's claims were most recently Remanded in April 2011 for additional development and for due process reasons. The issues have been returned to the Board for appellate consideration. In an April 2012 Statement of the Case, the RO recharacterized the peripheral neuropathy claim as entitlement to service connection for bilateral upper and lower peripheral neuropathy. However, as the Veteran contends that his peripheral neuropathy of the upper and lower extremities is secondary to his service-connected disabilities, the Board has recharacterized the issues on appeal as reflected on the title page of this decision. The issues of entitlement to service connection for peripheral neuropathy of the upper extremities, an increased rating for low back disability, and a TDIU 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. The Veteran's residuals of a right heel trauma is manifested by subjective complaints of pain which more closely approximates no more than mild disability of the right foot. 2. Prior to May 31, 2006, the preponderance of the evidence shows that the Veteran's right elbow was manifested by subjective complaints of stiffness with no competent lay or medical evidence of limitation of motion of the right elbow. 3. From May 31, 2006, to the present, the preponderance of the evidence shows that the Veteran's right elbow is manifested by no worse than 130 degrees flexion considering pain and 0 degrees extension, without any additional limitation of motion following repetitive use. 4. Neuropathy of the lower extremities was caused or aggravated by the Veteran's service connected low back disability. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of a right heel trauma have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002 Supp 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5284 (2013). 2. Prior to May 31, 2006, the criteria for a compensable disability rating for residuals of a right elbow trauma (right elbow disability) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 Supp. 2012); 38 C.F.R. §§ 4.1-4 .14, 4.71a, DCs 5212-5024 (2013). 3. From May 31, 2006, to the present, the criteria for a rating in excess of 10 percent for a right elbow disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 Supp. 2012); 38 C.F.R. §§ 4.1-4 .14, 4.71a, DCs 5212-5024 (2013). 4. Neuropathy of the lower extremities is secondary to service-connected lumbar spine disability. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The U.S. Supreme Court has held that an error in notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has not alleged any prejudicial or harmful error in VCAA notice. Regarding the Veteran's claim for service connection for peripheral neuropathy of the lower extremities, the VA's duty to notify is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Indeed, given the favorable disposition of the claim for service connection for peripheral neuropathy of the lower extremities, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Regarding the Veteran's increased rating claims, after the denial of the present claims, the RO provided notice to the Veteran in letters dated June 2006 and July 2008 that explained what information and evidence was needed to substantiate the claims, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. These letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the Veteran was not provided complete notice with respect to his increased rating claims until after the initial adjudication of the claims, there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA obtained the Veteran's STRs. Also on file are pertinent VA outpatient treatment records. Neither the Veteran nor his representative have identified any outstanding evidence that has not otherwise been obtained. During the course of the appeal, the Veteran was afforded VA examinations in July 1999, May 2001, November 2006, July 2008, and September 2009. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that these examinations are adequate for adjudication purposes. These VA examination reports were comprehensive and adequately addressed the Veteran's orthopedic symptomatology. Due consideration was given to the Veteran's personal complaints as well to the findings made on physical examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board recognizes that the last orthopedic examinations are now over four (4) years old. The mere passage of time since those examinations is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's right elbow and right heel since the September 2009 and June 2011 VA examinations, respectively. The Veteran has not argued the contrary. Finally, the Board notes that this appeal was remanded in April 2011 for the Veteran to be afforded VA examinations with regard to his right elbow and right heel disabilities which he underwent in June 2011. The Board is satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 11, 146-47 (1999). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Increased Rating Claims-Generally Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2013). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). A. Right Elbow Initially, the Board notes that the Veteran is right-hand dominant. Such makes his right elbow his major extremity. Only the rating criteria for the major extremity will be considered. In addition, there are neurological complaints upper extremities peripheral neuropathy which are being remanded for further development and as such the Veteran's neurological symptomatology will not be decided or addressed at this time. The Veteran maintains that his service-connected right elbow disability, degenerative joint disease of the right elbow is more severe than what is reflected by the currently assigned disability ratings. For the period prior to May 31, 2006, he has been assigned a noncompensable rating under Diagnostic Code 5212 for residuals of trauma to the right elbow. As noted in the Introduction, in a December 2006 rating decision, the RO increased the rating from 0 percent to 10 percent for the Veteran's right elbow disability. The effective date of the award of increase was May 31, 2006, which was the date that the RO found that the Veteran filed his claim for an increased rating. However, in its April 2011 Remand, the Board determined that the Veteran had filed a timely notice disagreement to an August 2001 decision that had denied a claim for an increased rating for right elbow disability, and that the claim had in fact remained pending since July 2000, the date of claim at that time. The review of the present appeal covers this entire period. Reference is also made to the rating sheet attached to May 2006 decision, which indicates that the Veteran's elbow disability was rated under Diagnostic Codes 5212-5024. However, in the body of the decision, the RO indicated that the 10 percent rating was assigned for "painful, noncompensable limitation of the right elbow" which is rated under Diagnostic Code 5003 which contemplates degenerative arthritis. The present review will be made in consideration of all the appropriate diagnostic codes. Diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002. Degenerative arthritis established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59 (2013). For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints while multiple involvements of the interphalangeal, metacarpal and tarsal joints of the lower extremities are considered groups of minor joints, ratable on a parity with major joints. See 38 C.F.R. § 4.45(f) (2013). Under Diagnostic Code 5206, limitation of flexion of forearm warrants a 10 percent rating if flexion is limited to 100 degrees, a 20 percent rating for limitation to 90 degrees, a 30 percent rating for limitation to 70 degrees, a 40 percent rating for limitation to 55 degrees, and a 50 percent rating if there is limitation to 45 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5207, limitation of extension of the forearm warrants a 10 percent rating if there is limitation to 45 to 60 degrees and a 20 percent rating if there is limitation to 90 degrees. Higher rating may be assigned when there is limitation to 90 degrees, a limitation to 100 degrees, and limitation to 110 degrees. 38 C.F.R. § 4.71a, DC 5207. Under Diagnostic Code 5208, a 20 percent rating is warranted flexion of the forearm is limited to 100 degrees and extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5208. Under Diagnostic Code 5213, limitation of supination to 30 degrees or less warrants a 10 percent rating. Limitation of pronation warrants a 20 percent rating. Higher ratings are warranted for fixation of the elbow in certain positions. 38 C.F.R. § 4.71a, DC 5213. Higher rating are also available if there is ankylosis, nonunion of the radius and ulnar with flail false joint, and impairment of the ulna. 38 C.F.R. § 4.71a, DCs 5205, 5210, 5211. However, as none of these symptoms/conditions have been demonstrated, the criteria do not apply. The normal range of motion of the elbow is as follows: flexion from 0 to 145 degrees; pronation from zero to 80 degrees; and supination from zero to 85 degrees. 38 C.F.R. § 4.71, Plate I. Turning to the merits of the claim, much of the relevant evidence is contained in the five VA examinations that the Veteran has undergone for this claim. There are few, if any, treatment records pertaining to complaints or treatment of the Veteran's right elbow disability. A July 1999 VA examination report is silent for complaints related to the Veteran's right elbow disability. Motor strength was good in the upper extremities with normal tone and reflexes were 1+ in the upper extremities. VA treatment records include a July 2000 functional capacity evaluation which reflects an impression of decrease bilateral grip strength which correlated well with subjective reports of "stiffness and dead" feelings in the forearms. A May 2001 VA general medical examination report is negative for any diagnosed right elbow disability or related complaints. Examination of the Veteran's upper extremities failed to reveal any abnormalities and he was able to move both arms in all directions without complaints or limitations. On VA joints examination in November 2006, the Veteran presented with complaints of intermittent right elbow pain following repetitive movement and heavy lifting. There was no evidence of swelling, limitation of motion, or flare-ups. He took Motrin for pain and did not use an elbow splint or a brace. Right elbow pain did not interfere with activities of daily living. On examination of the right elbow, there was no evidence of swelling or deformity. There was minimal tenderness of the olecranon. Range of motion revealed 0 degrees extension, 140 degrees flexion, and supination from 0 to 85 degrees with pain in the last 10 degrees. Muscle strength was 5/5. Repetitive motion of the elbow did not produce any additional limitation of motion due to pain, weakness, fatigue, lack of endurance, or incoordination. X-rays of the right elbow in October 2006 showed calcific tendonitis of the right olecranon process. On VA joints examination in July 2008, the Veteran complained of constant right elbow pain which flared up with heavy lifting over 20 pounds. There was minimal limitation of motion of the right elbow during flare-ups. There was occasional swelling of the elbow and forearm. The Veteran took Motrin for pain, but did not use any elbow or arm splints and was able to use his right hand for normal daily activities. The examiner noted that he had not worked since 2001 due to low back pain and peripheral neuritis, but that his right elbow disability had no significant effects on his previous occupation as a landscaper. Examination of the right elbow and forearm revealed tenderness over the olecranon process and the insertion of the triceps tendon, as well as a slight tenderness on deep palpation of the forearm muscles. There was no evidence of swelling or deformity. Range of motion testing revealed flexion from 0 to 135 degrees with pain starting at 105 degrees and 80 degrees of supination and pronation with pain in the last 10 degrees. There was decreased sensation over the dorsum of the forearm and slight weakness of his right hand grip. However, the biceps and triceps muscle around the elbow were 5/5 in strength with good radial pulse. Repetitive motion of the right elbow did not produce additional limitation of motion due to pain, weakness, fatigue, lack or endurance, or incoordination. X-ray examination of the right elbow revealed very mild degenerative changes and a small olecranon spur. The examiner diagnosed degenerative arthritis of the right elbow and a small olecranon spur. On VA joints examination in September 2009, the Veteran presented with complaints of right elbow pain rated a 9 to 10 out of 10 on the pain scale with frequent radiation distally to the forearm. Right elbow pain flared up on overuse and weight-bearing, but there was no additional limitation of motion during flare-ups. Pain did not interfere with activities of daily living; and, there were no incapacitating episodes in the last year. There was occasional swelling of the elbow. The Veteran took Motrin and Tylenol tablets twice daily, but did not wear an arm splint of brace. He had worked in the Safety Department at the Miami, Florida VA Medical Center (VAMC), but recently quit due to other medical problems. Examination of the right elbow showed no deformity or swelling. There was tenderness over the triceps tendon insertion and a bit more proximally over the tendon and muscle. There was slight tenderness over the anterior aspect of the elbow, over the lateral epicondyle, and over the ulnar nerve posterior to the medial epicondyle. Range of motion of the elbow showed flexion from 0 to 130 degrees with pain in the last 10 degrees. Supination was 0 to 85 degrees with pain in the last 10 degrees. Pronation of the forearm was 0 to 80 degrees with no pain. Repetitive motion did not produce additional limitation of motion due to pain, weakness, fatigue, lack of endurance, or incoordination. Muscle strength around the elbow was 5/5. X-rays of the right elbow showed tiny calcification over the lateral epicondyle. The examiner diagnosed very mild degenerative disease of the right elbow and chronic tendonitis of the triceps tendon insertion. Having reviewed the foregoing, the Board finds that a compensable 10 percent rating is not warranted for the service-connected right elbow disability prior to May 31, 2006. On VA general medical examination in May 2001, examination of the upper extremities failed to reveal any abnormalities and the Veteran was able to move both arms in all directions without complaints or limitations. Since there is no lay or medical evidence of any limitation of motion of the right elbow, there is no basis upon which to assign even the minimum 10 percent rating under Diagnostic Codes 5003, 5206, 5207, 5208 or 5213. Accordingly, a compensable disability rating is not warranted for the Veteran's right elbow prior to May 31, 2006. From May 31, 2006, the Board finds that the Veteran's right elbow disability is properly rated as 10 percent disabling. Range of motion findings made on VA examination in November 2006, July 2008 and September 2009 reflect some limitation of motion of the right elbow. However, the evidence does not show that flexion was limited to 100 degrees, or extension was limited to 45 or 60 degrees. There is no basis upon which to assign even the minimum 10 percent rating under Diagnostic Code 5206 or 5207, respectively. A rating under Diagnostic Code 5208 is similarly not warranted. In addition, there is no indication of limitation of limitation of supination to 30 degrees or less, there is no basis to assign a separate 10 percent rating under Diagnostic Code 5213. The Veteran's noncompensable limitation of motion and diagnosed degenerative arthritis of the wrist is properly rated as 10 percent disabling under DC 5003. Accordingly, a disability rating in excess of 10 percent is not warranted for the Veteran's right elbow disability since May 31, 2006, under any applicable Diagnostic Code. 38 C.F.R. § 4.71a, DCs 5003, 5206, 5207, 5208 or 5213. Consideration has been given to whether a higher rating could be assigned for either period based on the Veteran's complaints of pain and limitation of function. However, for the period prior to May 31, 2006, there was no indication that the Veteran experienced any loss of motion or function, even with any pain he might have experienced. A similar conclusion is made with respect to the period from May 31, 2006. The reports of the November 2006, July 2008, and September 2009 all took into consideration the Veteran's complaints of pain and the onset of pain when calculating his range of motion. Those symptoms were contemplated by the 10 percent rating already assigned. Moreover, and of some import, none of the VA examiners indicated that repetitive motion resulted in increased pain, fatigue, weakness, or lack of endurance, and there was no incoordination or additional degree of limitation of motion at any time. Therefore a higher disability rating is not available based on DeLuca during either period. B. Right Heel As an initial matter, the Board notes that the Veteran's neurological symptomatology in the lower extremities are addressed with regard to his claim for service connection for peripheral neuropathy of the lower extremities which is discussed in further detail below. The Veteran's right heel disability has been rated as noncompensable pursuant to Diagnostic Code 5284, which pertains to other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for a moderate foot injury. A moderately severe foot injury merits a 20 percent rating. A 30 percent rating is warranted for a severe foot injury. Actual loss of use of the foot warrants a 40 percent rating. Words such as "moderate," "moderately severe," and "severe" are not defined in the Schedule for Rating Disabilities. "Moderate" is generally defined as "tending toward the mean or average amount or dimension." See Merriam-Webster's Collegiate Dictionary 798 (11th ed. 2003). "Severe" is generally defined as "of a great degree: serious." Id. at 1140. Turning to the merits of the claim, VA treatment records include a July 2000 functional capacity evaluation at which time an examination of the feet indicated that there were intact to light touch. On VA spine and joints examinations in May 2001 it was noted that a recent X-ray examination of the Veteran's feet indicated a large heel spur bilaterally. The os calcis showed no hyperactive findings. The Veteran was able extend the ankles without complaints. A contemporaneous noted that an imaging study of the feet indicated bilateral calcaneal bony spurs, slightly more prominent on the right. However, neither examiner diagnosed any orthopedic disability of the right heel or foot. On VA feet examination in October 2006, the Veteran denied any history of a specific injury to the feet and denied surgery. His complaints were primarily neurological and included complaints of pain, weakness, numbness, stiffness, and burning. He stated pain was present with weight-bearing and non-weight-bearing, but that there was no clear pattern to flare-ups or problems or complications. He had never used any kind of special shoes or inserts and claimed that he had "adapted" to the discomfort. He said that he was not working at that time due to pain. He had difficulty with prolonged standing and experienced discomfort when walking on steps, but did not have any limitation in activities of daily living. On examination, the Veteran had a non-antalgic gait and wore construction boots. There was subjective pain with dorsiflexion, plantar flexion, and inversion/eversion of the feet and ankles. There was no pain to palpation of the plantar medial calcaneal tubercles or to medial to lateral squeeze of the calcaneus, bilaterally. Bilaterally, there was 20 degrees dorsiflexion, 10 degrees plantar flexion at the first metatarsal phalangeal joint, and 0 degrees dorsiflexion. He had a pes planus foot-type with weight-bearing and non-weight-bearing. He was able to toe-raise minimally, but there was an inversion of the Achilles tendon on the posterior calcaneus. The calcaneus was rectus on the posterior heel. There was no abnormal shoe wear pattern noted. There was no functional limitation in standing or walking as seen in gait or with short periods of standing. There were no corns, calluses, or contractures of the toes noted. X-ray examination confirmed pes planus. There was posterior and inferior calcaneal spurring seen bilaterally. No other obvious abnormalities were noted. On VA feet examination in June 2011, the Veteran presented with a complaint of increasing and constant pain in the heel at rest and with activity. He had not received any injections. He said he had tried physical therapy without relief. Since onset, the right heel disability had progressively worsened with a fair response to treatment. He took Ibuprofen and Gabapentin for partial pain relief. There was no history of surgery or hospitalization, trauma to the feet, or any history of foot-related neoplasm. There was also no evidence of swelling, heat, redness, stiffness, fatigability, weakness. Symptoms identified included pain while standing, walking, and at rest and a lack of endurance while standing and walking. There were no flare-ups of foot joint disease. He was able to stand up to one hour and walk 1 to 3 miles. No range of motion studies were recorded. However, there was no evidence of painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, malunion or nonunion of the tarsal or metatarsal bones or atrophy of the foot. Significant findings included pes planus. There was evidence of tenderness at the plantar fascia origin at the heel. He had an antalgic gait secondary to low back pain. X-rays of the [right] foot indicated pes planus with a large pineal spur at the insertion of the plantar fascia. The examiner diagnosed plantar fasciitis of the right foot with an associated right heel condition. There was no effect on chores, traveling, feeding, bathing, dressing, toileting, grooming, driving and only a mild effect on shopping, exercise, sports, and recreation. The examiner noted that the Veteran had retired in 2001 due to medical (physical) problems. Having reviewed the foregoing, the Board finds that a compensable disability rating is not warranted for the service-connected right heel disability under DC 5284, as a foot injury that is "moderate" in nature has not been shown. First, there is no indication from the record, and the Veteran has not reported, that he receives treatment at any facility for his right foot disability. Moreover, based on what was observed during three VA feet examinations, his resulting symptomatology appears mild at best. Specifically, at a VA examination in October 2006, the Veteran denied that his right foot disability affected his activities of daily living and was only limited by prolonged standing and walking. On VA examination in June 2011, examination of the right foot there was no evidence of swelling, heat, redness, stiffness, fatigability or weakness and disability had only a mild effect on shopping, exercise, sports, and recreation. The Veteran takes simple over-the-counter pain management and has consistently denied using any sort of corrective shoe or shoe inserts for treatment. In short, when considered as a whole, the Veteran's disability picture does not more nearly approximate a moderate foot injury as is required for a higher compensable disability rating of 10 percent under Diagnostic Code 5284. The disability picture more nearly approximates a mild foot injury under DC 5284. The criteria for a compensable 10 percent rating are not met. As the Veteran has been noted to have pes planus of the right foot, consideration has been given to assigning a compensable disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5276, used for acquired flatfoot. However, there is no evidence that the Veteran has moderate pes planus with symptoms such as weight-bearing over or medial to the great toe, inward bearing of the tendo Achilles, or pain on manipulation of the feet. While the Veteran has consistently reported experiencing foot pain and painful flare-ups of such, there is no objective evidence of pain on manipulation of his feet at any of his VA examinations. Therefore, the Board finds that a compensable disability rating is simply not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has finally considered other provisions which might provide for a higher evaluation with respect to the issue on appeal, including 38 C.F.R. §§ 4.40 and 4.45, as they relate to pain and any resulting functional impairment due to pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, DC 5276 does not evaluate the Veteran's foot disability with respect to range of motion; therefore, sections 4.40 and 4.45, with respect to pain on motion, are not applicable. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Additionally, the rating criteria under DC 5276 specifically contemplate pain on manipulation and use. The Board has reviewed other diagnostic codes that pertain to the feet. There is no evidence of diagnosis of bilateral weak foot, anterior (Morton's disease) metatarsalgia; unilateral hallux valgus; unilateral severe hallux rigidus; hammertoe; or, malunuion or nonunion of the tarsal or metatarsal bones. Diagnostic Codes 5277 through 5283 are inapplicable. In short, the evidence indicates that the Veteran's residuals of a right heel injury have resulted in residual symptoms that are very mild at best. Therefore, as a right foot injury that is moderate in nature has not been shown, a compensable rating is not warranted on this basis. C. Additional Considerations In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claims. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. orthopedic symptomatology including pain and stiffness in the right elbow and right foot. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of the disabilities, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings and opinions provided by the expert of record should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disabilities have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluations on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, there has been no showing that the Veteran's right elbow and right heel disabilities could not be contemplated adequately by the applicable schedular rating criteria discussed above. With regard to higher ratings for right elbow disability prior to and since May 31, 2006 and a higher rating for a right heel disability, the currently assigned ratings adequately describe the severity of the Veteran's symptoms for these disabilities. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's orthopedic disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In light of the foregoing, the Veteran's claim for a compensable rating for a right elbow disability prior to May 31, 2006, and in excess of 10 percent since May 31, 2006, must be denied. The claim for a compensable 10 percent rating for a right foot disability must also be denied. Since the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application with regard to these claims. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered additional staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); neuropathy is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2013); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that he has peripheral neuropathy of the lower extremities secondary to his service-connected disabilities, specifically lumbar spine and foot. The STRs are void of any findings, complaints, or diagnosis related to any neurological disability of the Veteran's lower extremities. VA treatment records include a July 2000 functional capacity evaluation at which time he had multiple complaints of heat and numbness in the legs and low back pain with a pattern of pain that "shot up and down and all the way around." On VA spine examination in May 2001, the Veteran presented with complaints of lower back pain with pain that radiated to both legs and feet. He had numbness in both of his legs and a burning sensation in both of his feet. He also had pain in both arms and hands similar to his foot problems. He had a very strong family history of diabetes, but stated that he had never been told that he had diabetes. On examination, there was no reflex or motor deficits in the lower extremities. There was decreased sensation in the L4, L5, and S1 root in the left side. Negative straight leg raising test. The examiner diagnosed probable degenerative disc disease of the lumbar spine and very strong possibility of peripheral diabetic neuropathy. On VA general medical examination in May 2001, the examiner diagnosed chronic low back pain and peripheral neuropathy. VA treatment records include a May 2002 report which reflects a diagnosis of HIV. A January 2005 report reflects the Veteran's complaint of localized back pain with occasional radiating pain down both lower extremities of the feet. He had radiating pain for several years. On examination, there was no evidence of myelopathy or radicular involvement. In August 2005, the Veteran complained of localized back pain with radiating pain down both legs. The impression was low back pain without evidence of myelopathy or radiculopathy. A January 2006 report indicates an impression of peripheral neuropathy "possible assoc w HIV" and low back pain without evidence of myelopathy or radiculopathy. On VA feet examination in October 2006, the examiner completed a review of the records and noted the Veteran's past medical history significant for chronic low back pain, documented chronic peripheral neuropathy and a 2 to 3 year history of HIV disease. Upon examination, the examiner diagnosed peripheral neuropathy of the lower extremities, most likely from his low back condition, based on the rationale that the Veteran did not have a documented history of diabetes or alcoholism. On VA joints examination in November 2006, the Veteran presented with complaints of pain in the lower extremities. The examiner diagnosed degenerative disk disease of the lumbosacral spine most prominent at L4-L5 with moderate central canal stenosis by MRI. VA treatment records include a July 2008 neurology report that reflects an assessment of peripheral neuropathy likely secondary to HIV. In an addendum, the neurologist opined that the Veteran's dyesthesias of the lower extremities is due to a combination of HIV neuropathy and lumbar spondylosis. In October 2009, VA Professor of Medicine and Chief, Division of Infectious Diseases G. Dickinson indicated that the Veteran's pain in the lower extremities had been attributed to his chronic HIV infection and possibly antiretroviral therapy. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). These provisions mean that when the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). There is evidence that the Veteran's peripheral neuropathy of the lower extremities is related to his non-service connected HIV. There is also evidence that he has neuropathy of the lower extremities is related to his service-connected lumbar spine disability. In this regard, the Board notes that in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, reasonable doubt on any issue must be resolved in the Veteran's favor, and signs and symptoms be attributed to service-connected condition. In light of the discussion above, while the evidence is somewhat equivocal, it has nonetheless placed the record in relative equipoise. As such, the Board resolves the benefit of the doubt in the Veteran's favor and finds that the requirements for secondary service connection for neuropathy of the lower extremities are met. Service connection for neuropathy of the lower extremities secondary to the Veteran's service-connected lumbar spine disability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). ORDER A compensable rating for residuals of a right heel trauma, is denied. A compensable rating for residuals of a right elbow trauma prior to May 31, 2006, is denied. A rating in excess of 10 percent for residuals of a right elbow trauma since May 31, 2006, is denied. Service connection for neuropathy of the lower extremities is granted. REMAND As regards the Veteran's claim for service connection for peripheral neuropathy of the upper extremities, the Veteran contends that these disabilities are secondary to his service-connected disabilities, specifically his right elbow and lumbar spine disabilities. A May 2002 disability statement reflects a diagnosis of HIV and secondary diagnoses that include peripheral neuropathy manifested by paresthesias of the hand "etc." VA treatment records reflect diagnoses of peripheral neuropathy of the upper extremities possibly associated with the Veteran's non-service connected HIV. Thus, the Board finds that a VA neurological disorders examination is necessary in order to resolve the issue of whether any current neurological residuals of the left and/or right upper extremity are secondary to the Veteran's service-connected disabilities as opposed to a nonservice-connected disability or disease process. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). As regards the Veteran's lumbar spine disability, the Veteran was last afforded a VA examination in June 2011 regarding his lumbar spine disability. However, in a February 2012 statement the Veteran indicated that his lumbar spine disability has worsened and that in December 2011 he was transported by ambulance to the Miami, Florida VAMC, the record of which has not been associated with the Veteran's paper or electronic claims files. As such, the Board finds that the Veteran should be afforded a new VA examination in order to determine the current nature and severity of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The records reflecting his current treatment should also be obtained. The Veteran argues that he is unable to secure employment due to his service-connected disabilities. As a result of the Board's decision to grant service connection for peripheral neuropathy of the lower extremities, the yet to be assigned initial rating and effective date for this disability will impact on the Veteran's TDIU claim. The Board cannot adjudicate that issue until the initial evaluation and effective date are assigned for the Veteran's peripheral neuropathy of the lower extremities. Accordingly, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his accredited representative with a letter pertaining to his TDIU claim that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter shall explain what information or evidence (medical or lay) is necessary to substantiate the TDIU element of the Veteran's claim. It shall indicate the information and evidence that is to be provided by the Veteran, including a formal application form and an employment information form, and what information VA will attempt to obtain on her behalf. It also shall include information concerning the assignment of disability ratings and effective dates. 2. Then, obtain the Veteran's VA outpatient treatment records for the period since September 2008, to specifically include any December 2011 report of emergency treatment of the Veteran's lumbar spine disability at the Miami, Florida VAMC. If such records do not exist or are otherwise not available after reasonable efforts, such circumstances shall be fully documented in the claims file. 3. After ensuring that all available records are associated with the claims file, schedule the Veteran for a VA examination of his lumbosacral spine. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. Any testing deemed necessary must be performed. All pertinent pathology found on examination must be noted in the report of the evaluation. The examiner also should report the range of motion measurements for the lumbar spine in degrees. He or she should further comment as to whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner must provide findings as to whether the Veteran's residuals of a lumbosacral spine strain have resulted in any physician prescribed bed rest, and if so, the number of days of such physician prescribed bed rest and must include an explanation as to how the examiner arrived at such findings. The examiner should also provide an opinion concerning the impact of the Veteran's service-connected lumbar spine disability on his ability to work. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Then, the Veteran should be scheduled for a VA neurological disorders examination by an appropriate physician to address the nature and etiology of his claimed peripheral neuropathy of the upper extremities. All indicated tests and studies are to be performed. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. Specifically, the examiner should provide the following information: (a) Diagnose any current neurological disability of the Veteran's left and right upper extremity, to specifically include a neuropathy. (b) Is it at least likely as not (a 50 percent probability or greater) that any neurological disability of the right or left upper extremity had its onset in service or is otherwise etiologically related thereto? (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed neurological disability of the right or left upper extremity (a) was caused, or (b) is aggravated (permanently made worse) by the Veteran's service-connected disabilities? In rendering the requested opinions, the physician should specifically consider and discuss the Veteran's contentions, the lay statements of record, his service treatment records, and his VA and private medical records. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Thereafter, take adjudicatory action on the increased rating claims. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The SSOC should contain, among other things, a summary and discussion of the relevant evidence received since the SSOC was issued in April 2012. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs