Citation Nr: 1417163 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 09-40 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a mental health disability, other than PTSD and major depressive disorder, to include bipolar disorder as due to an undiagnosed illness. 2. Entitlement to service connection for a headache disability, to include as due to an undiagnosed illness. 3. Entitlement to service connection for bursitis and lumbar strain, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a gastrointestinal disability, to include gastritis as due to an undiagnosed illness. 5. Entitlement to a rating in excess of 10 percent for hallux flexus of the great toe, right foot. 6. Entitlement to a total rating based upon individual unemployability for compensation purposes (TDIU). REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran, the Veteran's spouse ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to November 1980 and from September 1990 to May 1991. The Veteran also served in the Reserves and the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in February 2009 and May 2012 of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2014, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The Board notes that the Veteran, as a lay person, filed her claims as service connection for bipolar disorder, migraine headaches, and gastritis. Multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in his application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Because the evidence indicates that the Veteran may have different conditions or diagnoses relating to her claims, the Board has therefore stated the issues as set forth on the first page of this decision. In a rating decision in June 2013, the RO denied the claim for an increased rating for service connected PTSD and major depressive disorder. As the Veteran has not initiated an appeal of the claim, the claim has not been developed for appellate review by the Board. The Veteran does have the remainder of the one-year period from the June 2013 notification to file a notice of disagreement to initiate an appeal of the claim. The issues of service connection for a mental health disability, service connection for a gastrointestinal disability, service connection for bursitis and lumbar strain, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The most probative evidence of record demonstrates that the Veteran's headaches disability was incurred during active service. 2. Hallux flexus of the right great toe encompasses prior corrective surgery during service and involves complaints of pain swelling and functional loss, but without objective evidence of moderate or severe impairment or ankylosis. CONCLUSION OF LAW 1. The criteria for service connection for headaches are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for the assignment of a rating in excess of 10 percent for hallux valgus of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the issue of service connection for headaches is resolved in the Veteran's favor, further discussion here of compliance with the VCAA with regard to that claim is not necessary. As to a higher rating for hallux flexus of the right great toe, under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- adjudication VCAA notice by letter, dated in July 2008 and May 2009. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran VA examinations in July 2008 and October 2012, and a hearing before the undersigned in January 2014. The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As to the Board hearing in January 2014, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in January 2014, the Veteran was assisted at the hearing by an accredited representative from the American Legion. The representative asked questions to ascertain the etiology, and the nature and severity of symptoms of the hallux flexus disability of the right great toe, such as whether her physicians ever discussed amputation. The Veteran's law judge asked questions to clarify when treatment occurred, that is whether it was in service or whether there was post-service private treatment. The service representative asked the Veteran about the difficulty she has in performing certain tasks. There was no pertinent evidence identified by the Veteran or her representative that might have been overlooked and that might substantiate the claim. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate his claim for an increased rating for his skin disability. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Service Connection for a Headache Disability Service connection may be established for a disability resulting from diseases or injuries, which are clearly present in service, or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Veteran contends that she acquired her headaches disability during service. She testified that she started having migraines while serving in the Persian Gulf. Currently, the headaches occur two times a week and she has to go into a dark room and use heat until the attack stops. Her husband testified that the Veteran had headaches when they were both working for the same employer. After a review of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the criteria for service connection for a headache disability are met. Both private and VA records reference frequent reports of headaches starting in a VA Persian Gulf War examination in May 1994. Further, her private physician diagnosed headaches, including a diagnosis of migraine headaches in June and July 2006. Thus, there is evidence of a current headache disability. As such, Shedden element (1) has been demonstrated. As noted, the Veteran testified that her headaches started while she was serving in the Persian Gulf and the attacks have never stopped. The service treatment records reference headache complaints and treatment even in her first period of active duty in August and September 1979. Therefore, Shedden element (2) has been satisfied. Finally, the Board finds that Veteran's testimony as to the onset of her migraine disability in service, which has remained until the present, and her attribution of her headaches to service satisfies Shedden element (3). Headache symptoms are certainly symptoms for which lay persons are uniquely qualified to report. Charles v. Principi, 16 Vet. App 370, 374-75 (2002). The Board finds that the Veteran's lay statements are credible, and therefore finds that not only is there evidence of in-service incurrence of headaches, but that the headaches have recurred from separation to the present. While there is no medical opinion in the file linking the current headache disability to service, this is a case in which the Veteran's lay opinion is sufficient. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)(Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)(explaining in a footnote, sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). The Veteran is competent and credible to report that she began experiencing headaches in service and has experienced headaches ever since service. A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."(emphasis added)); see 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). Resolving doubt in favor of the Veteran, service connection for a headaches disability is warranted. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b)); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating for Hallux Flexus of the Right Great Toe General Rating Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). The Veteran is service connected for hallux flexus of the great toe, right foot (hallux flexus), currently rated at 10 percent. At all relevant times, the Veteran asserts her hallux flexus disability warrants a higher rating. 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). Hallux flexus is currently rated by analogy under Diagnostic Code 5280, hallux valgus. When an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. See 38 C.F.R. § 4.20. In this instance, the Board finds that Diagnostic Code 5280 is the appropriate Diagnostic Code for rating the Veteran's hallux flexus disability. Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Also with any form of arthritis, painful motion is factor to be considered. 38 C.F.R. § 4.59. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; See also Burton v. Shinseki, 25 Vet. App. 1 (2011). Facts In a VA examination July 2008, the Veteran reported that after a fracture in the great right toe, she underwent surgical repair while in service. Since separation, she has not had any significant treatment of the right great toe. She has seen her primary care provider intermittently for the toe and he had requested in writing that her employer give her a waiver from the requirement that she wear steel toe boots. She does not wear any special shoes, but certain shoes and footwear, such as the steel toe boots, give her problems. She has tried inserts but they have not provided any relief. She reported sharp, continuous pain, 7-8/10. The pain is particularly worse with standing. Flare-ups, either due to standing or walking, can cause the pain to rise to 10/10. She alleviated the pain with over the counter medication, rest, and occasionally removing her shoes. She also had to periodically sit down at work. She cannot run, jump, or walk more than an eighth of a mile. The Veteran reported associated weakness, stiffness, swelling, heat, redness, and lack of endurance The physical examination demonstrated a 3 cm midline scar over the first MTP joint that was mildly tender. The Veteran had moderate swelling of the great right toe. There was no warmth or redness. She was tender on the plantar surface under the first MTP head and the plantar surface of the great toe. The extension was 5 degrees and flexion was to 10 degrees. There was an increase in pain with repetition, but no decrease in the range of motion. There was weakness, lack of endurance, and mild incoordination with repetition. The examiner also elicited decreased sensation particularly the great toe and right foot. X-rays did not reveal any abnormalities. The examiner diagnosed right first metatarsophalangeal joint hallux flexus. In August 2008, the Veteran complained of pain in her right great toe. The complaints continued into September 2008 but the Veteran reported she was told she had fungus and ingrown toenails. She was diagnosed by VA podiatry providers with onychomycosis and keratosis. In February 2009, she returned for treatment of onychomycosis and keratosis. In May 2012, the Veteran underwent a general VA examination, which included her right great toe disability. The Veteran reported that she last worked in January 2009 when the plant closed. Before then, steel toe shoes were a problem. She experienced pain in the plantar surface of the right great toe and it was worse with walking. The examination did not reveal any edema or erythema. The toe was tender to palpitation and the examiner noted stiffness with movement. The scar from the surgery was minor and well healed. There was a callous of the plantar surface distal to the metatarsal head of the great toe that was also tender. X-rays did not reveal any abnormalities. In an October 2012 VA foot examination, the examiner found the hallux flexus disability equivalent to hallux rigidus with mild or moderate symptoms. The symptoms were not severe, that is, equivalent to the amputation of the great toe. No abnormal findings were noted on the X-rays and the disability had no effect on the Veteran's ability to work. The diagnosis was status post hallux flexus with residuals of stiffness and pain. The examiner noted the right great toe disability did not prevent the Veteran from working. She was limited from physical work that required standing and walking, but sedentary employment would not be affected. Analysis The Board notes that the evidence establishes that the Veteran has other non-service connected diagnoses involving the right great toe, namely bilateral fungus (onychomycosis) and bilateral ingrown toenails (keratosis). The Board understands the Veteran, and the evidence does not suggest, that the hallux flexus disability has caused or aggravated these diagnoses. See 38 C.F.R. § 3.310. The Board has taken care to not distinguish between manifestations of service-connected and nonservice-connected foot (toe) disabilities in the absence of medical evidence which clearly does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Under 38 C.F.R. § 4.71a, Diagnostic Code 5280, unilateral hallux valgus warrants a 10 percent evaluation if it is severe and equivalent to amputation of the great toe, or if it has been subject to surgical treatment with resection of the metatarsal head. The 10 percent rating is the maximum evaluation available under Diagnostic Code 5280. The maximum rating of 10 percent under Diagnostic Code 5280 has already been assigned by the RO from the date of its receipt of the Veteran's claim for increase in June 2008. Review of the record shows that corrective surgery for hallux rigidus of the great toe of the right foot was undertaken in service. It does not appear to involve resection of the metatarsal head. When examined in 2008 and 2012, the main complaints and findings were pain, tenderness, and stiffness. The 2008 VA examination, in comparison of the right great toe to the left great toe, suggested a lesser range of motion in the right great toe. Consideration of pain and functional loss, however, is required only with respect to those Diagnostic Codes where the basis for rating is limitation of motion, and Diagnostic Code 5280 is not so based. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Moreover, the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra, cannot support a higher rating in this case because the Court has held that there is no basis for a rating higher than the maximum schedular rating for additional limitation of motion due to pain or functional loss under those provisions. See VAOPGCPREC 36-97, 63 Fed. Reg. 31262 (1998); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The other Diagnostic Codes do not afford a basis for the assignment of a rating in excess of 10 percent. There is no indication that the disability in question entails or is otherwise analogous to acquired flatfoot, which is covered by Diagnostic Code 5276. A 10 percent evaluation is the highest rating allowed under Diagnostic Code 5277 for bilateral weak foot, Diagnostic Code 5279 for anterior metatarsalgia, Diagnostic Code 5281 for hallux rigidus, or Diagnostic Code 5282 for hammer toe. Symptoms and findings of acquired claw foot are absent in this instance that might warrant the assignment of a rating more than 10 percent under Diagnostic Code 5278. There is no showing of moderately severe malunion or nonunion of tarsal or metatarsal bones, or severe malunion or nonunion of tarsal or metatarsal bones, for which 20 and 30 percent ratings, respectively, might be for assignment under Diagnostic Code 5283. There is also no indication of actual loss of the foot in association with malunion or non-union of the tarsal or metatarsal bones. Diagnostic Code 5284 provides ratings for residuals of other foot injuries, with moderate residuals warranting a 10 percent rating, moderately severe residuals warranting a 20 percent rating, and severe residuals warranting a 30 percent evaluation. A note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. Therefore, to receive a disability rating in excess of 10 percent, the Veteran's foot disability must be moderately severe. Here, the record fails establish the existence of more than a moderate foot injury, given that only the right great toe is affected and there main findings are pain and stiffness. Except for complaint of pain, there is no other impairment of the overall function of the right foot that more nearly approximates or equates to a moderately severe foot impairment under Diagnostic Code 5284 as there is no instability, weakness, or fatigue after rest or walking. For this reason, the criterion for the next higher rating under Diagnostic Code 5284 for the hallux flexus disability has not been met at any time during the appeal period. The Board must also consider entitlement to a separate rating for scar of the right great toe. The Board notes that the regulations related to the rating of scars were revised effective October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003); see also VAOPGCPREC 7-2003. As set forth in the Federal Register, however, the revised criteria apply to all applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008) unless the claimant specifically requests otherwise, which she did not in this case. Accordingly, because the Veteran's claim was received prior to October 23, 2008 and she did not specifically request consideration under the revised criteria, the revised criteria are not for application in this case. Under the applicable (earlier) regulations, to receive a disability rating for scars of the right foot, the scar must be deep or cause limitation of motion and cover an area exceeding 6 square inches, superficial without limitation of motion and cover an area of at least 144 square inches, superficial and unstable, or superficial and painful on examination. 38 C.F.R. §§ 4.118, Diagnostic Codes 7801, 7802, 7803, 7804 (2007). In 2008, the examiner noted a 3 cm scar that was tender. In October 2012, the examiner noted well healed surgical healed scar. There is no evidence of swelling or inflammation. As the evidence does not show deep or nonlinear scars, scars causing limitation of motion, unstable scars, painful scars, or scars covering more than 144 square inches, the Veteran is not entitled to a separate compensable disability rating for scar of the right great toe. 38 C.F.R. §§ 4.118, Diagnostic Codes 7801, 7802, 7803. The Board recognizes that the evidence supporting the Veteran's claim for a higher rating for the right great toe includes her statements regarding the severity of her disability particularly pain and how it affects her ability to wear certain types of shoes. The Board has also considered the Veteran's lay statements that her disability is worse than currently evaluated. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). She is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. That involves specialized knowledge or training in identifying injuries and diseases of the foot. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Such competent evidence concerning the nature and extent of the Veteran's right great toe disability have been provided by the medical personnel who have examined her during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. As the preponderance of the evidence is against a higher rating for hallux flexus of the right great toe, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is contemplated by the Rating Schedule and the assigned schedule ratings are, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, which are limitation of toe movement, stiffness, and pain, and are contemplated by the Rating Schedule under Diagnostic Code 5280, and the Veteran does not have any symptomatology not already contemplated by the Rating Schedule. Here, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected right great toe is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule for the musculoskeletal system shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." In this regard, there is no evidence that the symptomatology has necessitated frequent periods of hospitalization or marked interference with employability. The records in the claims file do not reflect frequent periods of hospitalization. The Veteran testified the condition prevented her from wearing steel toed boots at work. She also testified that her employer accommodated her for a while by allowing her to wear tennis shoes after her doctor wrote a letter stating she should not wear steel toe boots. She was required to return to steel toe boots after an accident. In the Board's view, the fact she was limited in her shoe wear does not place her disability outside the "governing norms" and the level of disability prescribed by the scheduler criteria. In short, The Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. ORDER Entitlement to service connection for a migraine headache disability is granted. Entitlement to a rating in excess of 10 percent for hallux flexus of the great toe, right foot is denied. REMAND VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). As to the claims for service connection for a gastrointestinal disability and bursitis/lumbar strain, the Veteran has submitted evidence that service was the initial onset of continuing pain and other symptoms for these disabilities. Lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Further, there is evidence that the Veteran has treated for gastrointestinal symptoms at various times in 1979 and 1980 (with a diagnosis of gastritis in July 1979) as well as low back pain in February 1980 and March of 1980. As to the Veteran's claim for bipolar disorder, the Veteran asserts that she has a bipolar disorder that is attributable to an undiagnosed illness. Her private physician noted in October 2005 that she had a history of bipolar disorder and listed it as one of her diagnosis. Although she is already service connected for PTSD and major depressive disorder, the Veteran is not precluded from asserting that another metal health disability is also attributable to service. There is no prohibition against a veteran being service-connected for more than one diagnosed psychiatric disorder. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (noting that different psychiatric diagnoses may have symptoms that are not overlapping). A VA examination is necessary to determine whether the Veteran has bipolar disorder and whether it is related to service. The Board can then determine the rating for all service-connected mental health disorders based on all psychological symptoms and impairments, without differentiation, but without assigning evaluations for the same symptoms under more than one code. See 38 C.F.R, §§ 4.14, 4.125. The Board has therefore determined that VA should provide the Veteran with a VA examination as there is evidence in the medical records of the claims for service connection for a gastrointestinal disability, a musculoskeletal disability, and bipolar disorder. As the record is insufficient to decide these claims, a VA examination and medical opinion is needed under the duty to assist. Finally, the Veteran has filed a separate claim for total disability based upon individual unemployability (TDIU). The Veteran has also filed claims of service connection that are still pending before the Board that as noted above, are subject to the remand and the Board finds that the Veteran's claim for entitlement to TDIU is inextricably intertwined with these issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, the issue of entitlement to TDIU must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a VA orthopedic examination for the joints and the back to include whether the Veteran has bursitis and lumbar strain. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner is asked to determine the diagnosis of the Veteran's joints and for the back, including bursitis and lumbar strain, and then, for any diagnosed disability, is requested to offer an opinion as to whether it is at least as likely as not (probability of 50 percent or more), that the Veteran's diagnosed joints disability and low back disability are related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. If any joint or back disability is not attributable to a known diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's complaints constitute undiagnosed illness consistent with the Veteran's Southwest Asia service during the Persian Gulf War from November 1990 to April 1991. The examiner is asked to specifically comment on whether the Veteran's duties as a cook and laundry specialist could cause or contribute to any diagnosed disability of the joints or back. A complete rationale must be provided for any opinion offered. 2. Schedule the Veteran a VA gastrointestinal examination to include whether the Veteran has a diagnosis of gastritis. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has any current gastrointestinal disability, including gastritis, and, if so, whether it is at least as likely as not (50 percent probability) that any gastrointestinal disability had its onset during service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. If any gastrointestinal disorder is not attributable to a known diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's gastrointestinal complaints constitute undiagnosed illness consistent with the Veteran's Southwest Asia service during the Persian Gulf War from November 1990 to April 1991. The examiner is asked to specifically comment on whether the Veteran's duties as a cook and laundry specialist could cause or contribute to any diagnosed disability of the gastrointestinal system. A complete rationale must be provided for any opinion offered. 3. Schedule the Veteran a VA psychiatric examination to determine whether the Veteran has bipolar disorder or any other mental health disability besides the service-connected PTSD and major depressive disorder and the Veteran's ability to obtain and maintain gainful employment solely on the basis of her service connected disabilities. The claims file must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner is asked to determine if the Veteran has bipolar disorder or any other diagnosis other than and separate from PTSD and major depressive disorder and if so, then the examiner should determine whether it is at least as likely as not (50 percent probability or more) the additional mental health disorder had its onset during service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. If the additional mental health disability is not related to service, then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) the additional mental health disability is caused or aggravated by her service-connected PTSD and major depressive disorder. The examiner is further advised that aggravation for legal purposes is defined as a permanent worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. The examiner is also asked to assess the Veteran's ability to obtain and maintain gainful employment on the basis of PTSD, major depressive disorder, hallux flexus of the right great toe and any other service-connected disabilities and provide 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 prevent him from securing or following a substantially gainful occupation. When offering the opinion, the examiner is instructed to ignore the effects of age or any non-service connected disabilities. A complete rationale for any opinion offered must be provided. 4. After the development requested is completed, readjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board 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). 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. 2013). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs