Citation Nr: 1337905 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 06-06 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for right lower extremity disability, to include as manifested by numbness and tarsal tunnel syndrome, and to include as secondary to service-connected T12 compression fracture with thoracic spine degenerative disc disease. 2. Entitlement to an evaluation in excess of 40 percent for T12 compression fracture with thoracic spine degenerative disc disease. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to November 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision and a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In the February 2004 rating decision, the RO denied an evaluation in excess of 30 percent for the service-connected back disability. The February 2005 rating decision increased the evaluation for the Veteran's service-connected back disability to 40 percent, effective November 26, 2003, the date of the claim for an increased evaluation. As the 40 percent evaluation for the service-connected back disability is not the maximum rating available for the disability, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The February 2005 rating decision also denied the Veteran's claim of entitlement to service connection for bilateral lower extremity numbness. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim of entitlement to a TDIU due to service-connected disabilities, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. During the pendency of the appeal of the increased rating issue, a March 2006 rating decision denied entitlement to a TDIU. As the Board finds that the Veteran's claim of entitlement to a TDIU is part and parcel of the increased rating issue on appeal, no finality has attached as to the March 7, 2006 rating decision. In November 2011, the Veteran raised the issue of entitlement to service connection for depression, to include as secondary to service-connected disability. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. This appeal was processed using the VBMS and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the VA Appeals Management Center (AMC). FINDINGS OF FACT 1. The probative clinical evidence of record is at least in equipoise as to whether right tibial neuropathy consistent with mild tarsal tunnel syndrome is causally related to active duty. 2. Prior to March 5, 2012, the Veteran's T12 compression fracture with thoracic spine degenerative disc disease was primarily manifested by pain and limited range of motion. 3. On and after March 5, 2012, the Veteran's physical impairment due to his T12 compression fracture with thoracic spine degenerative disc disease involved permanent flexure deformity at waist level, pain on every range of motion, inability to stand for prolonged periods, inability to walk, and inability to reach. CONCLUSIONS OF LAW 1. Right tibial neuropathy consistent with mild tarsal tunnel syndrome was incurred in active duty. 38 U.S.C.A. §§ 1101, 1131, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Prior to March 5, 2012, the schedular criteria for an evaluation in excess of 40 percent for T12 compression fracture with thoracic spine degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5235 (2013). 3. On and after March 5, 2012, the schedular criteria for an evaluation of 50 percent, but no more, for T12 compression fracture with thoracic spine degenerative disc disease have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5235. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable decision of the AOJ on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. As the benefit sought with respect to the issue of entitlement to service connection for right tibial neuropathy consistent with mild tarsal tunnel syndrome is granted in full in the decision below, further discussion as to VA's duties to notify and assist with respect to this issue is rendered moot. With regard to the issue of entitlement to an evaluation in excess of 40 percent for T12 compression fracture with thoracic spine degenerative disc disease, December 2003 and April 2004 notice letters apprised the Veteran of the information and evidence necessary to substantiate the claim, and of his and VA's responsibilities in obtaining any outstanding relevant evidence. A March 2006 letter apprised the Veteran of the criteria for consideration in the assignment of a disability rating, and an effective date, in the event of award of the benefit sought. Although provision of VCAA notice was not completed prior to the February 2004 initial adjudication of the increased rating claim, the Veteran has not been prejudiced by this time defect. In this regard, the Board notes that the matter was thereafter readjudicated. Duty to Assist With regard to the duty to assist, the Veteran's claims file contains service treatment records, VA examination reports, VA treatment records, identified private treatment records, and records from the Social Security Administration. The Board remanded the Veteran's claims in March 2010, January 2012, November 2012, and in June 2013. In June 2013, the Board directed that the RO obtain copies of the July 2011 X-ray examination and any magnetic resonance imaging scans (MRI) since February 2013. The record includes VA clinical records dated through August 2013. In addition, an August 2013 supplemental statement of the case noted that there was no evidence that a X-ray examination or MRI of the spine were performed in July 2011, and there was no evidence of any MRI since February 2013. The Board also instructed that the RO return the claims folder to the March 2012 VA examiner, or a suitable substitute, to obtain clarification of certain statements rendered in the March 2012 examination report and to provide a supplemental opinion as to whether it is at least as likely as not that the Veteran's right tibial neuropathy consistent with mild tarsal tunnel syndrome is causally related to service and/or whether it is at least as likely as not that such a disability is chronically aggravated by the Veteran's service-connected disabilities. The record demonstrates that in July 2013 and August 2013, VA physicians reviewed the evidence, to include the March 2012 clinical findings, and provided addendum opinions clarifying the findings. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds the March 2012 VA examination and the subsequent addendum opinions, when considered together, are adequate as they were predicated on a review of the Veteran's claims file and the results of an adequate and complete physical examination. Additionally, clinical findings pertinent to the applicable criteria for rating the Veteran's service-connected back disability were provided. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds the RO substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). As all relevant facts have been properly and sufficiently developed in this appeal, no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. The Board has reviewed all of the evidence in the Veteran's claims file. 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 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. Evidence An October 2003 private treatment record shows the Veteran had chronic mid-back pain from injuries he received during active duty. In April 2004, the Veteran reported back pain and numbness in both his legs as the result of a nerve in his back. A May 2004 X-ray shows mild compression deformity of T12 suspicious for fracture. There was also mild degenerative arthritis of the mid-thoracic spine. The Veteran underwent VA examination in May 2004. The record shows he had been unemployed since November 2003 at the time of his last stroke. The Veteran reported all types of pain, including achy, dull, and sharp pain, and stated that his back would go out two times per month. He stated that the pain had worsened since 1986 and now lasted longer. The Veteran reported that he could not sit, walk, or stand for too long. On physical examination, the Veteran's gait was antalgic, and he could stand on his heels and toes. He declined to forward flex and declined to extend. He rotated to the right and left 20 degrees, and he bent to the right and left 20 degrees. There was no atrophy of the muscles in the lower extremities and no edema. No scoliosis was noted, and the lordotic curve was flat. There was no muscle spasm, and the Veteran had thoracic kyphosis. He forward flexed to dress and un-dress himself and was independent in getting off the exam table. The impression was T12 compression fracture with mild degenerative disc disease of the thoracic spine. The VA examiner found the Deluca issue was primarily pain. The VA examiner also found certain observations of the veteran were inconsistent, to include his un-dressing and dressing for the examination, getting off and on the examination table without difficulty, the examination of forward flexion, rotation, and bending, and his declining to perform the range of motion examination. A July 2004 VA treatment record indicates the Veteran had increased low back pain. He had no concerns in bladder or bowel habits and no new neurological changes. An August 2004 bone scan was unremarkable; specifically, there was no evidence of thoracic spine abnormality. The Veteran underwent additional VA examination in November 2004. He was independent in his activities of daily living. He reported that he had intermittent numbness in bilateral toes and believed it was due to wearing boots in service. The Veteran was able to perform heel-toe without difficulty. Lower extremity strength with manual muscle testing was five out of five bilaterally and symmetrically, and lower extremity deep tendon reflexes were normal. Sensation was intact to light touch and vibration. The examination did not find sensory deficit in the lower extremities. A February 2005 VA treatment record indicates the Veteran complained of no feeling in both of his fifth toes and stated that it had been on-going since he had to wear boots in service. He denied any tingling but reported that his calves would go numb intermittently. The impression was electrophysiological evidence of a right tibial neuropathy which localized to the right of the medial ankle with no evidence of acute or chronic denervation. The findings were consistent with a mild tarsal tunnel syndrome. There was no electrophysiological evidence of polyneuropathy, proximal tibial neuropathy, or S1 radiculopathy. An August 2005 SSA examination shows the Veteran reported constant pain aggravated by bending, twisting, stooping, reaching, lifting, prolonged sitting, prolonged standing, prolonged walking, and prolonged lying down. A December 2005 VA treatment record demonstrates the Veteran complained of increased, severe low back pain with radiculopathy symptoms down his right leg, along with numbness and pain. There were no bladder or bowel changes and no new neurological changes. On VA examination in January 2006, the Veteran reported pain all the time with flare-ups that reduced the range of motion by 90 percent. He also stated that fatigue reduced his range of motion by 15 percent. He did not use a brace, cane, wheelchair, walker, or crutches. He reported pain down the right leg. He had no difficulty with stairs and no bladder or bowel problems secondary to his back. He was able to stand for 30 minutes and walk for a mile. The Veteran walked with short, tentative steps, flexed to 20 degrees at the waist. He could flex at the waist from 20 to 80 degrees with pain and could extend at the waist from negative 20 to zero degrees with pain throughout. He was able to bend to the left and right and twist to the left and right from zero to 20 degrees with pain throughout. The VA examiner reported that he was unable to move the Veteran passively past the range of motion he could do on his own. After fatiguing the back, range of motion stayed the same. He had pain to palpation in the lumbosacral spine and thoracic spine area. There was mild kyphoscoliosis, a pelvic tilt to the right, and his lordotic curve was flat. There was plus three out of four muscle spasm in the paraspinous, lumbosacral muscles. The VA examiner diagnosed traumatic T2 compression fracture with moderate degenerative changes and anterior wedging of T7, T8, T9, and T11, and traumatic injury to the lumbosacral spine with chronic strain and spondylolysis L4-5. With respect to Deluca, there appeared to be pain but no fatigue. The Veteran was unable to do any heavy labor or any light labor but could possibly do some type of sedentary labor. X-ray examination of the lumbosacral spine in January 2006 revealed transitional vertebral segment with partial sacralization of L5 with a pseudoarthrosis on the right and spondylolysis pars interarticularis of L4-L5. There was no evidence for spondylolisthesis. X-ray examination of the thoracic spine reflected moderate degenerative changes of the dorsal spine. There were anterior wedging deformities of several vertebral bodies of the dorsal spine. There were no changes since 2004. In February 2006, a physician for the SSA found that the evidence in the Veteran's case did not support severe physical impairment. There were no significant findings related to the back. An electromyography (EMG) of the lower extremities was negative. The Veteran submitted a May 2006 letter from a VA physician, Dr. Z. Aslam, who opined that the Veteran's back problems, which included disc prolapsed, was causing numbness in his legs. In July 2006, the Veteran underwent additional VA examination. The VA examiner opined that based on the examination and the EMG, it was clear that the Veteran's service-connected T12 compression fracture was not causing a radiculopathy. The EMG showed a right tibial neuropathy consistent with mild tarsal tunnel syndrome. This syndrome was peripheral neuropathy due to narrowing of the bones in a part of the ankle, which had nothing to do with the spine itself. The EMG specifically noted that there was no evidence of an S1 radiculopathy. In addition, the physical examination noted normal sensory findings. The VA examiner found that the objective evidence did not supporting the finding of a neuropathy due to T12 compression fracture or degenerative disc disease of the spine. A January 2008 VA treatment record indicates the Veteran complained of constant, throbbing low back pain that affect his sleep, physical activity, and concentration. A November 2011 VA treatment record shows the VA physician felt the Veteran had peripheral edema related primarily to sleeping in his recliner, which he did because of his back pain. In March 2012, the Veteran underwent VA examination in connection with his claim. The Veteran reported constant low back pain over the lumbar and lower thoracic region, diffusely across the back, and described it as burning or aching. It became worse with prolonged walking, and there was no improvement with ice or heat. There was no weakness in the lower extremities. The Veteran stated that flare-ups did not impact the function of the thoracolumbar spine. On examination, there was vertebral tenderness to palpation and no erythema, spasm, atrophy, or guarding. The Veteran's posture was forward flexed between 20 to 30 degrees, his pelvis was level, and he had a shuffling, non-antalgic gait. The VA examiner did not record the Veteran's initial range of motion. With respect to active range of motion after three repetitions, flexion was from 10 to 60 degrees; extension was negative 10 degrees; left side and right side bending were from zero to 20 degrees; and left and right rotation were from zero to 20 degrees. There was no objective evidence of pain or painful motion. Strength was normal bilaterally, and reflexes were normal. Straight leg testing was negative. The VA examiner initially stated there were no additional functional limitations of the joint, including range of motion, during flare-ups, or secondary to repetitive use of the joint. There were no additional functional limitations due to painful motion, weakness, excessive fatigability, lack of endurance, or incoordination. However, the VA examiner later reported that the contributing factors to functional loss after repetitive motion included less movement than normal, weakened movement, excess fatigability, and atrophy of disuse. There was localized tenderness or pain to palpation but no guarding or muscle spasm. Muscle strength testing and reflex examination revealed normal strength and normal deep tendon reflexes, respectively. There was decreased sensation to light touch in the right foot and toes. The VA examiner reported that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. In addition, the Veteran did not have any other neurologic abnormalities or findings related to a back condition. The VA examiner reported that the Veteran did not have intervertebral disc syndrome. The Veteran occasionally used a wheelchair because of easy fatigability. Imaging studies were not performed. The VA examiner stated that the Veteran's back condition impacted his ability to work in that current deconditioning limited physical activity, including a lifting limitation of 20 pounds on occasion. Deconditioning and lack of physical exercise and activity leading to weak and stiff muscles was certainly multifactorial with significant psychosocial involvement. The VA examiner reported that objective radiological imaging of the spine did not correlate to the severity of the Veteran's physical impairment. As such, the history of the Veteran's T12 vertebral fracture was less likely as not a significant cause of the Veteran's deconditioning. The VA examiner diagnosed T12 compression fracture, healed with no residuals. In March 2012, a VA examiner found the Veteran did not have a peripheral nerve condition or peripheral neuropathy. The VA examiner reported that the electrophysical evidence of right tibial neuropathy conflicted with the clinical evidence of a history of bilateral fifth toe numbness and examination findings of numbness of the right fifth toe. The VA examiner stated that tibial neuropathy consistent with tarsal tunnel syndrome would cause pain or numbness on the medial aspect of the foot, whereas the Veteran complained of numbness on the lateral aspect of the foot, which was not supplied by the tibial nerve. Therefore, the VA examiner opined a diagnosis of right tibial neuropathy consistent with tarsal tunnel syndrome was not valid. In February 2013, the Veteran reported that he slept in his recliner due to his back pain. He was mostly confined to the recliner and his wheelchair, and he fell once or twice per week when getting up from sleeping or going to the bathroom. The Veteran was agreeable to having a hospital bed and someone to come in and help him with showers and home nursing. The record indicates a July 2011 X-ray showed no dangerous pathology. However, as noted above, the evidence does not demonstrate X-ray examination was performed in July 2011. A June 2013 VA treatment record shows the Veteran was dependent for homemaking and was having increased difficulty ambulating. He was able to dress except his shoes and socks and was able to feed and groom himself. The Veteran required assistance with bathing and was modified independent with toileting. In July 2013, a VA physician provided an addendum opinion in connection with the March 2012 VA examination. The VA physician stated that the Veteran appeared to have a permanent flexure deformity at waist level. He was unable to stand erect at zero degrees and stood with a fixed forward lean at 10 degrees. This was equivalent to negative 10 degrees of extension at waist level since he was unable to stand straight at zero degrees. The VA physician also found there was no atrophy of the thoracolumbar spine. There was generalized deconditioning of all the joints in the body, including the thoracolumbar spine. The VA physician stated that the service-connected T12 compression fracture had resolved. The VA physician noted that a compression fracture was not detected on a bone scan of the thoracic spine in August 2004. The VA physician determined that the Veteran had permanent flexure deformity at the waist level, pain on every range of motion of the spine, and limited range of motion of flexion, sideways bend, extension, and rotation. The Veteran was also unable to carry anything more than 10 pounds, unable to stand for prolonged periods, unable to walk, and unable to reach. With respect to the DeLuca requirements, there were additional functional limitations, including additional loss of range of motion and strength during flare-ups, and secondary to repetitive use of this body part, due painful motion, weakness, excessive fatigability, lack of endurance, and incoordination. This happened during repetitive flexion at the waist level. There was decreased strength of all ranges of motion, which was not affected by repetitive range of motion testing. The VA physician diagnosed mild tarsal tunnel syndrome and opined that it was at least as likely as not caused by or the result of active duty. The VA physician explained that although it was diagnosed many years after active duty, there was a 50 percent probability that the condition was caused by wearing boots during service as there was no evidence of a supervening injury that could cause this isolated injury. In August 2013, a VA physician reviewed the Veteran's available records and stated that because she did not examine the Veteran, she was unable to clarify any questions regarding specific examination findings. The VA physician concurred with the July 2013 explanation for the measurement of negative 10 degrees of extension. The VA physician also repeated the finding that examination revealed no atrophy. The VA physician stated that she could not explain why the 2012 examiner worded the information differently with respect to the additional functional limitations caused by the Veteran's service-connected disability. The VA physician reported that she was unable to find any CT or MRI studies of the Veteran's thoracolumbar spine or an X-ray examination performed in July 2011. Upon review of the available tests, the VA physician found that the Veteran had a compression fracture of T12 in 1986 or earlier but that he did not have an acute T12 fracture at any of the times when the question was specifically addressed. X-ray examination showed evidence of an old fracture, just like an old, healed long bone fracture may be seen on X-ray examination. There was no need to confirm its presence radiologically since it had been seen multiple times in the past. The VA physician found the old fracture had healed and that the radiologic findings would not worsen. As a result, the VA physician opined that it was not at least as likely as not that the Veteran had any current residuals from an old T12 compression fracture. The bone had long since healed, and the injury was mild to minimal in the first place. According to the physician, the nature and history of compression fractures of the spine was that they were initially quite painful and were typically treated symptomatically. Minimal/mild fractures usually healed uneventfully and may be noted on X-ray examinations done for other reasons. A T12 fracture would not be responsible for any lumbar radiculopathy or symptoms affecting the lower extremities. With respect to the Veteran's right tibial neuropathy consistent with mild tarsal tunnel syndrome, the VA physician concurred with the 2012 examination findings. The VA physician noted that the Veteran did not have symptoms or clinical findings of tibial nerve compression at the ankle and did not have any findings for his complaint of little toe numbness. The claimed injury to the Veteran's back during active duty would not have caused little toe numbness and would not have caused tibial nerve compression at the ankle. The VA physician also found there was no evidence that the Veteran's little toe numbness would have been chronically aggravated by the Veteran's service-connected disabilities. The VA physician stated she could not provide an opinion as to whether the right little toe was numb due to wearing boots in the service without resorting to speculation, although transient numbness could occur due to compression. The VA physician stated it would be speculative to accept this as the cause of continued numbness nearly 30 years later. Right lower extremity disability The Veteran asserts that he has a right lower extremity due to wearing boots during active duty. Alternatively, he contends that a current right lower extremity disability is due to or has been aggravated by his service-connected back disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in active military, naval, or air service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay 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 established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The February 2005 EMG reflects a diagnosis of right tibial neuropathy consistent with mild tarsal tunnel syndrome. As such, the Board finds the Veteran has established a disability for purposes of service connection. An August 1986 medical board report shows the Veteran complained of low back pain with radiation to his right leg and occasional numbness in that foot. The report shows there were radicular symptoms associated with his T12 fracture. The diagnosis was inherited neuropathy non-sensory. As a result, the Board finds there is some evidence as to an injury incurred during active duty. In this case, there are conflicting medical opinions of record concerning the etiology of a right lower extremity disability. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the Court has stated that 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 that the physician reaches. Further, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In July 2006, Dr. Aslam opined that the Veteran's back problems were causing numbness in his legs. In July 2013, a VA physician diagnosed mild tarsal tunnel syndrome and opined that it was at least as likely as not caused by or the result of active duty. The VA physician explained that although it was diagnosed many years after active duty, there was a 50 percent probability that the condition was caused by wearing boots during service as there was no evidence of a supervening injury that could cause this isolated injury. Conversely, the July 2006 VA examiner opined that based on the examination and the EMG, it was clear that the Veteran's service-connected T12 compression fracture was not causing a radiculopathy. Although the EMG showed a right tibial neuropathy consistent with mild tarsal tunnel syndrome, the VA examiner stated that this syndrome was peripheral neuropathy due to narrowing of the bones in a part of the ankle, which had nothing to do with the spine itself. Therefore, the VA examiner found that the objective evidence did not supporting the finding of a neuropathy due to T12 compression fracture or degenerative disc disease of the spine. In addition, the March 2012 VA examiner opined that a diagnosis of right tibial neuropathy consistent with tarsal tunnel syndrome was not valid. Similarly, in August 2013, the VA physician noted that the Veteran did not have symptoms or clinical findings of tibial nerve compression at the ankle and did not have any findings for his complaint of little toe numbness. Upon review, the Board notes that Dr. Aslam did not provide a rationale for the positive opinion, and therefore, the opinion carries little probative value. However, the Board affords the July 2013 VA examiner's positive opinion significant value. Although the evidence does not clearly indicate that examiner reviewed the Veteran's claims file, the Board may not disregard a favorable medical opinion solely because it was based on a history given by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Rather, reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the veteran as lacking credibility. Coburn v. Nicholson, 19 Vet. App. 427 (2006). In this case, the Board finds no reason to doubt the Veteran's credibility, particularly in light of the August 1986 report reflecting complaints of radiation to his right leg and occasional numbness in that foot. Further, the Board notes that the July 2006 VA examiner did not provide an opinion with respect to whether right tibial neuropathy consistent with mild tarsal tunnel syndrome was directly related to active duty. In addition, because the record reflects a diagnosis of right tibial neuropathy consistent with mild tarsal tunnel syndrome during the pendency of the claim, the Board finds the March 2012 VA examiner's opinion inadequate for purposes of determining service connection. Likewise, the August 2013 VA examiner's opinion appears predicated on the absence of a current diagnosis, which, as stated above, has been established during the pendency of the appeal. Moreover, the Court has held that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996). As a result, the Board finds the August 2013 VA physician's opinion carries little probative weight. In view of the foregoing, the Board finds the probative clinical evidence is at least in equipoise as to whether right tibial neuropathy consistent with mild tarsal tunnel syndrome is causally related to active duty. With resolution of doubt in the Veteran's favor, the Board finds that the evidence supports service connection for right tibial neuropathy consistent with mild tarsal tunnel syndrome. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T12 compression fracture with thoracic spine degenerative disc disease Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The factors involved in evaluating and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint; or pain on movement. Id.; 38 C.F.R. § 4.45. The general rating formula for diseases and injuries of the spine (General Rating Formula) provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability is rated under 5243 and considered under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for diseases and injuries of the spine, 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. 38 C.F.R. § 4.71a. The Board notes that the schedular criteria for evaluating disabilities of the spine have undergone revision. Pursuant to Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991), where a law or regulation changes after the claim has been filed or reopened, but before administrative or judicial process has been concluded, the version of the law most favorable to the Veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Because the Veteran filed his claim for an increased evaluation on November 26, 2003, the rating criteria in effect prior to September 26, 2003 (and the revision to Diagnostic Code 5293 effective from September 23, 2002 through September 25, 2003), are not for consideration. As in effect from September 26, 2003, under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. Note (1) to the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 are zero to 30 degrees, and left and right lateral rotation are 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2013). In this case, the RO granted an increased evaluation of 40 percent, effective November 26, 2003. The Board notes that claimants may receive an earlier effective date if they experience an increase during the one-year period prior to filing a claim for an increased evaluation. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010); 38 U.S.C. § 5110(b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2013). However, as the evidence does not demonstrate that the Veteran's symptoms during the one-year period prior to his November 2003 claim met the schedular criteria for an evaluation in excess of the 30 percent already assigned, an earlier effective date for the grant of a 40 percent evaluation is not warranted. Additionally, the Board notes that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine (38 C.F.R. § 4.71a) specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. First, this decision grants service connection for right tibial neuropathy consistent with mild tarsal tunnel syndrome. In addition, a March 2006 rating decision granted service connection for impotency and entitlement to special monthly compensation based on loss of use as secondary to the Veteran's service-connected back disability. As such, these disabilities are not for consideration. In addition, the Board finds the evidence does not demonstrate any other objective neurologic abnormalities associated with the Veteran's T12 compression fracture with thoracic spine degenerative disc disease. In July 2004 and December 2005, the Veteran did not have concerns in bladder or bowel habits or any new neurological changes. Likewise, in January 2006 the Veteran denied any bladder or bowel problems secondary to his back disability, and examination in March 2012 did not reveal any neurologic abnormalities related to a back condition. Therefore, the Board finds the evidence does not establish entitlement to a separate evaluation for any objective neurologic abnormalities associated with the Veteran's service-connected back disability. The Veteran's back disability is currently rated as 40 percent disabling under Diagnostic Code 5235 throughout the pendency of the appeal. For a 50 percent rating under Diagnostic Code 5235, the evidence must show functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine, and for a 100 percent rating, there must be functional impairment comparable to unfavorable ankylosis of the entire spine. In addition, an increased rating of 60 percent is provided for under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Here, the medical evidence of record does not demonstrate functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine or the entire spine at any time prior to March 5, 2012. Although the Veteran declined to forward flex and extend in May 2004, in January 2006 he was able to flex at the waist from 20 to 80 degrees and extend from negative 20 to zero degrees. Furthermore, the record does not show that a VA physician or private physician prescribed bed rest at any time during the pendency of the appeal. Therefore, an evaluation in excess of 40 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the Board has considered whether the Veteran's back disability resulted in a level of functional loss greater than that already contemplated by the assigned rating at any point during the appeal period. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Prior to March 5, 2012, physical examination did not reveal spasm, atrophy, or guarding. In May 2004, the VA examiner found the DeLuca issue was primarily pain, and in November 2004 the Veteran was independent in his activities of daily living. In January 2006, there was pain but no fatigue, and in February 2006, the SSA physician found that the evidence did not demonstrate severe physical impairment. Therefore, the Board does not find that the Veteran's service-connected back disability resulted in a level of functional loss greater than that already contemplated by the assigned rating of 40 percent prior to March 5, 2012. However, on March 5, 2012 the VA examiner reported that there were functional limitations, including additional loss of range of motion and strength during flare-ups and repetitive use of this body part, due to painful motion, weakness, excessive fatigability, lack of endurance, and incoordination. The Veteran's posture was forward flexed between 20 and 30 degrees, and flexion was from 10 to 60 degrees. In addition, the February 2013 VA treatment record shows the Veteran was mostly confined to his wheelchair and his recliner. The record shows the VA physician also suggested that the Veteran have someone come in and help him with showers, home nursing, and home occupational and physical therapy. Furthermore, based on the March 5, 2012 VA examination, the July 2013 VA examiner found the Veteran's physical impairment due to his thoracolumbar spine condition included permanent flexure deformity at waist level, pain on every range of motion of the spine, inability to stand for prolonged periods, inability to walk, and inability to reach. Moreover, the Board has considered the lay statements of record attesting to the Veteran's symptoms of constant pain and the effects of that pain on his daily life. The Board notes that lay persons can attest to observable symptomatology, and the statements made by the Veteran describing his symptoms are considered to be competent evidence. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Upon review, the Board finds that the Veteran's service-connected T12 compression fracture with thoracic spine degenerative disc disease resulted in functional loss greater than that contemplated by the assigned rating of 40 percent, and comparable to unfavorable ankylosis of the entire thoracolumbar spine, on and after March 5, 2012. Therefore, a 50 percent evaluation is warranted for the period on and after March 5, 2012 under Diagnostic Code 5235. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Extraschedular consideration The Board has also considered whether the Veteran is entitled to consideration of an extraschedular rating. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a veteran's disability picture that 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, there is no demonstration in the lay or clinical evidence in this case that the Veteran's symptoms present an exceptional disability picture which renders the available respective schedular evaluations inadequate. The Veteran's service-connected T12 compression fracture with thoracic spine degenerative disc disease is evaluated as a dysfunction of the musculoskeletal system, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.115(b), Diagnostic Codes 7522, 7528 (2013). Prior to March 5, 2012, the Veteran's T12 compression fracture with thoracic spine degenerative disc disease was manifested by pain and limited range of motion. On and after March 5, 2012, the Veteran's service-connected back disability was manifested by pain, weakness, excess fatigability, lack of endurance, and incoordination and produced functional loss in the form of an inability to walk or stand for prolonged periods, for which the Board has assigned an increased evaluation of 50 percent. In addition, the record does not show that the Veteran required frequent hospitalization for problems associated with his back disability based on surgical or other treatment necessitating convalescence. Further, the evidence shows the Veteran has been unemployed since November 2003, and therefore consideration of marked interference with employment is not applicable. Here, the Veteran's complaints of pain and functional impairment are contemplated in the diagnostic code criteria for assignment of a schedular rating and the DeLuca considerations. Therefore, the Board finds the Veteran is not entitled to a referral for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board finds the criteria for an evaluation of 50 percent, but no more, for T12 compression fracture with thoracic spine degenerative disc disease have been met on and after March 5, 2012. 38 C.F.R. § 4.17a, Diagnostic Code 5235. However, because the preponderance of the evidence is against an evaluation in excess of that already assigned for the period prior to March 5, 2012, the doctrine of reasonable doubt in not for application. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right tibial neuropathy consistent with mild tarsal tunnel syndrome is granted. Entitlement to an evaluation in excess of 40 percent for T12 compression fracture with thoracic spine degenerative disc disease prior to March 5, 2012 is denied. Entitlement to an evaluation of 50 percent, but no more, for T12 compression fracture with thoracic spine degenerative disc disease on and after March 5, 2012 is granted. REMAND In February 2010, the Veteran's representative asserted that the evaluation for employability was never completed. The March 2012 VA examiner stated that the Veteran's back condition impacted his ability to work in that current deconditioning limited physical activity. The evidence also indicates that in February 2013, the Veteran was mostly confined to a recliner and his wheelchair. Additionally, the July 2013 VA examiner reported that the Veteran was unable to stand for prolonged periods, unable to walk, and unable to reach. Therefore, the Board finds the issue of entitlement to a TDIU has been reasonably raised by the evidence of record and should be adjudicated as part of the claim on appeal. Id.; see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). Here, the Board finds additional development is necessary to determine entitlement to a TDIU. Accordingly, the case is REMANDED for the following actions: 1. Issue the Veteran VCAA notice as to the issue of entitlement to a TDIU, and provide a VA Form 21-8940, "Veteran's Application for Increased Compensation Based on Unemployability," for completion and return to VA. 2. The AMC should schedule the Veteran for an evaluation by an appropriate physician to determine the effect of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation. The physician is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities, alone or in combination, prevent him from securing or following a substantially gainful occupation. When offering this opinion, the physician should not consider the effects of age or any nonservice-connected disability. The physician should also note that the Veteran is currently service-connected for T12 compression fracture with thoracic spine degenerative disc disease; peripheral entrapment neuropathy, digital branches, left fifth toe; impotency; and right tibial neuropathy consistent with mild tarsal tunnel syndrome. In formulating the opinion, the physician is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the evidence both for and against the claim is so evenly divided that it is as sound to find in favor of the claim as it is to find against it. A complete rationale for any opinion expressed must be provided. 3. When the development requested has been completed, adjudicate the claim of entitlement to a TDIU. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs