Citation Nr: 0005950 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 98-09 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches. 2. Entitlement to an increased rating for status post fracture of the right femur with shortening of the right lower extremity and post-traumatic arthritis of the hip, currently evaluated as 40 percent disabling. 3. Entitlement to an increased rating for chronic lumbosacral strain, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for right (minor) hand disability with distal ulnar neuropathy, currently evaluated as 20 percent disabling. 5. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU). 6. Entitlement to service connection for dyspepsia with reflux. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Daniel R. McGarry INTRODUCTION The veteran had active service from September 1977 to December 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in which the regional office (RO) determined that the veteran had not submitted new and material evidence to reopen the claim for service connection for headaches, and denied increased ratings for status post fracture of the right femur with shortening of the right lower extremity and post-traumatic arthritis of the right hip, chronic lumbosacral strain, and distal ulnar neuropathy of the right hand. In September 1996, the veteran was awarded an increased rating of 20 percent for chronic lumbosacral strain, effective from August 6, 1996, and an increased rating for distal ulnar neuropathy of the right hand, effective from April 7, 1995. These issues remain before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In a statement attached to a VA Form 9 received by the RO in October 1996, the veteran appeared to be claiming service connection for a neuropsychiatric disorder as being proximately due to or the result of his service-connected disabilities. In a statement dated in April 1998, a private physician reported that the veteran had anxiety and depression secondary to chronic back pain and limitation of ambulation. The physician expressed his opinion that the veteran was totally disabled. The claim for service connection for a neuropsychiatric disorder has not been developed and is referred to the RO for appropriate action. The issue of entitlement to secondary service connection for dyspepsia with reflux and entitlement to TDIU are the subjects of the Remand part of this decision. In Floyd v. Brown, 9 Vet. App. 88 (1996), the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter referred to as the Court) held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the appellant's claim and the appellant had full opportunity to present the increased-rating claim before the RO. Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. FINDINGS OF FACT 1. In a December 1989 rating decision which the veteran did not appeal, the RO denied entitlement to service connection for headaches. 2. Since the December 1989 rating decision, the veteran has not submitted evidence which was not previously considered by agency decisionmakers which bears directly and substantially on the question of whether he has current disability from headaches which is related to a disease or injury he incurred during his active military service. 3. The veteran's disability from residuals of fracture of the right femur with shortening of the right lower extremity and traumatic arthritis of the right hip is manifested by right hip and leg pain with prolonged standing or walking, limitation of flexion to 40 degrees with pain, and limitation of extension to five degrees, with pain. 4. The veteran's disability from chronic lumbosacral strain is manifested by limitation of motion of the lumbosacral spine and chronic muscle spasm, without clinical findings of listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position or abnormal mobility on forced motion. 5. The veteran is left-handed. 6. The veteran's right hand disability with distal ulnar neuropathy is manifested by reduced grip strength and partial loss of sensation in the fingers of his hand with mild muscle atrophy, without deformity or compromise of active range of motion or fine motor skills, and by a tender scar. CONCLUSIONS OF LAW 1. The RO's December 1989 rating decision, which denied service connection for headaches is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. The veteran has not submitted new and material evidence to reopen his claim of entitlement to service connection for headaches. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The criteria for a rating in excess of 40 percent for residuals of fracture of the right femur with shortening of the right lower extremity and traumatic arthritis of the right hip are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.25, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5251, 5252 (1999). 4. The criteria for a rating in excess of 20 percent for chronic lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.3231, 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5295 (1999). 5. The criteria for a rating of 30 percent for right hand disability with distal ulnar neuropathy have been met. 38 U.S.C.A. §§ 1155, 5107 (1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.25, 24.40, 4.41, 4.45, 4.59, 4.123, 4.124a, Diagnostic Codes 7804, 8516 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Headaches Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In a December 1989 rating decision, the veteran's claim of entitlement to service connection for headaches was denied. The veteran did not file a notice of disagreement or perfect an appeal of that decision. The decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302, 20.1103 (1999). The claim can be reopened only with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 1991). As defined by regulation, new and material evidence means evidence not previously submitted to the agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). In considering whether a claim may be reopened, a two-step analysis must be performed. First, the Board must determine whether the evidence submitted in support of reopening the claim since the last final disallowance of the claim is new and material. If the Board determines that the veteran has produced new and material evidence, the claim is deemed to be reopened and the case must then be evaluated on the basis of all the evidence. Manio v. Derwinski, 1 Vet. App. 140 (1991). See also Glynn v. Brown, 6 Vet. App. 523 (1994). For the limited purpose of determining whether to reopen a claim, the Board must generally accept new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet. App. 510 (1992). The new and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis, rather than since the time that the claim was last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996) (a decision by an RO refusing, because of a lack of new and material evidence, to reopen a previously and finally disallowed claim, after having considered newly presented evidence, is a "disallowance" of a claim). If new and material evidence has not been submitted, the Board does not need to address the merits of the claims. Sanchez v. Derwinski, 2 Vet. App. 330 (1992). When service connection for headaches was denied in December 1989, the evidence in the record consisted of service medical records and a report of a Department of Veterans Affairs (VA) examination. Service medical records indicated that the veteran had occasional complaints of headache. Treatment notes dated in July 1978 show that the veteran's complaints, including headache, were diagnosed as viral syndrome and rule out "strep." In September 1985, symptoms of headache, vomiting, chills, and diarrhea were diagnosed viral gastroenteritis. During treatment several days later, the veteran told an examiner that he had headache and fever which had lasted a year. The examiner noted an impression of rule out pneumonia. During a periodic medical examination in December 1986, the veteran reported a history of frequent headaches. No associated abnormal clinical findings, defects, or diagnoses were reported. The veteran also reported a history of frequent headaches when he was examined for a medical review board in April 1988. No related abnormal clinical findings, defects, or diagnoses were reported. Subsequently dated service medical records do not show any further complaints, diagnoses, or treatment of a disorder associated with headaches. During a VA general medical examination in April 1989, the veteran's current complaints included headaches "off [and] on." On neurological examination, cranial nerves II through XII were intact. The examiner remarked that the veteran reported that he had headaches while exposed to heat and sun approximately five to ten times per year. The headaches were relieved several minutes after taking Tylenol. No pertinent diagnosis was reported. In denying service connection for chronic headaches in the December 1989 rating decision, a rating Board reasoned that service medical records, the report of the service separation examination, and the report of the VA medical examination were "negative for any chronic headaches." The evidence submitted since the December 1989 rating decision consisted of copies of some service medical records, reports of VA examinations, a statement from a private physician, lay statements, and the veteran's written assertions and testimony. Except for the copies of the service medical records, which had previously been considered, all of such evidence is new in the sense that such evidence had not been considered by agency decisionmakers at the time of the December 1989 rating decision. The veteran testified in January 1997 that he did not have headaches prior to his entry into active duty service but began to have headaches as often as three times per week during such service. The headaches started when he was stationed at Fort Bliss, Texas, in 1984. He stated that such headaches caused him to have to take breaks from his work. He did not recall seeking medical treatment in service for his headaches. He attributed the headaches to stress associated with his job. His wife testified that she would give the veteran Tylenol for morning headaches during his service. She stated that he has continued to have headaches since his separation from service. The earliest dated VA outpatient treatment records contained in the claims folder indicate that the veteran has sought treatment for headaches on several occasions since his separation from service. A treatment note dated in November 1993 shows that the veteran gave a past history of headaches. His current complaint was of forehead and occiput pain lasting two to three days, worse at night, and partially relieved with Tylenol. An examiner noted an impression of tension headache and prescribed Fiorinal. During treatment in January 1994, an examiner noted that the veteran had had headaches "for years." The veteran described the pain as dull and aching, located in the back of his head. A neurological examination was nonfocal. There was no scalp tenderness. There was no decrease in visual acuity. The diagnostic impression was chronic, recurrent headache. During treatment in August 1995, the veteran gave a history of splitting, throbbing headache, primarily occipital, which sometimes became frontal. The headaches occurred about three times per week and lasted 10 to 15 minutes. An examination revealed no clinical findings pertinent to the veteran's complaints. The noted impression was stable headache disorder, but still poorly controlled. The veteran had similar complaints during VA neurology outpatient treatment in February 1996. In addition, he reported symptoms of photophobia, phonophobia, and nausea. The symptoms were not relieved by analgesics. A neurological examination was normal. The examiner reported an impression of chronic headache, unchanged. A VA outpatient treatment record dated in February 1997 shows that the veteran gave a history of occipital and frontal headaches with photophobia and "sonophobia" occurring two to three times per week since 1984. The record contains a notation that a computed tomography (CT) scan in 1992 had been normal. An examination revealed no abnormal clinical findings. The examiner prescribed Inderal. The veteran has undergone several VA examinations since the December 1989 disallowance of the claim for service connection for headaches. None of the reports of such examinations contain clinical findings of a disorder associated with headaches. None of such reports show a nexus between his current subjective complaints of headaches and any disease or injury he incurred during his active military service. In a letter dated in April 1994, a private physician reported that he had examined the veteran for several "medical problems and disabilities" including headaches. The veteran reported a past medical history of headaches since 1984. The physician noted that a CT scan had been negative. The letter lists chronic headaches among the veteran's disabilities. The lay statements submitted by the veteran pertain to his attempts to secure employment and do not address the etiology or onset of his headaches. The applicable rating criteria provide that purely subjective complaints such as headaches, when they are recognized as symptomatic of brain damage or other organic disorder may be service connected and considered for compensation benefits. In this case, the medical evidence does not reflect that an organic cause for the veteran's headaches has been established. They appear to be symptomatic of transitory emotional states, as headaches often are, rather than representative of a distinct organic entity. The Board has reviewed the entire record and finds that the new evidence submitted since the December 1989 rating decision which denied service connection for headaches is not material, as such evidence does not bear directly and substantially on the question of whether the veteran's headaches are the result of disease or injury he incurred during his active military service. The veteran is competent to testify that he had symptoms of headache pain during his active military service. Further, he is competent to testify that his current symptoms of headache pain are similar to the symptoms he had during such service. However, in the absence of evidence that the veteran or his wife has the expertise to render opinions about the etiology of his current symptoms, their assertions that he has current disability from a disorder manifested by headaches which is related to a disease or injury he incurred during his active military service are afforded no probative weight. See Espiritu v. Derwinski, 2Vet. App. 492 (1992). Such assertions are not afforded the presumption of credibility for the purpose of determining if new and material evidence has been submitted. See Robinette v. Brown, 8 Vet. App. 69 (1995). The recitations of the history of headaches beginning during his active service, as provided by the veteran and contained in the various reports in the claims folder, without further medical comment by the examiners, do not constitute the necessary medical evidence that the headaches are manifestations of inservice disease or injury of in-service onset or nexus which would constitute new and material evidence. See LeShore v. Brown, 8 Vet. App. 406 (1995). The Board concludes that the veteran has not submitted evidence since the December 1989 rating decision which is both new and material. VA has a duty under 38 U.S.C.A. § 5103(a) to advise a claimant of the new and material evidence needed to complete his claim. Graves v. Brown, 8 Vet. App. 522, 525 (1995). This obligation depends on the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). Here, the RO fulfilled its obligation under section 5103(a) in its rating decision and statement of the case, which informed the veteran of the reasons his claim had been denied. Also, by this decision, the Board informs the appellant of the type of new and material evidence needed to reopen his claim. Specifically, the veteran should submit competent medical evidence that his headaches are the result of disease or injury he incurred during his active military service. I also note that, unlike Graves, the appellant in this case has not put VA on notice of the existence of specific evidence that may be both new and material, and sufficient to reopen his claim for service connection. II. Increased Ratings The veteran has presented a well-grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well-grounded claim for an increased rating). The Board is satisfied that all appropriate development has been accomplished and that VA has no further duty to assist the veteran in developing facts pertinent to his claim. The veteran has not advised VA of the existence of additional evidence which may be obtained. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Although VA must consider the entire record, the most pertinent evidence, because of effective date law and regulations, is created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991). VA utilizes a rating schedule which is used primarily as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (1999). A. Status Post Fracture Right Femur and Right Hip Arthritis Service medical records show that the veteran sustained a closed, comminuted fracture of the mid shaft of his right femur in a truck accident in August 1986. The fracture was treated first with traction, then with closed intramedullary nailing. After several weeks, he began therapy with knee and hip range of motion exercises and strengthening of the quadriceps and hamstrings. Radiographic examination showed normal progression of fracture healing without infection. The veteran's complaints of discomfort in the right hip over the site of the proximal end of the intramedullary nail resolved when the nail was removed in December 1987. He continued to have persistent dull pain in the right thigh at the site of the fracture and occasional sharp pain during cold, damp weather and after prolonged standing. It was reported in June 1988 that he continued to use a cane for ambulating. When examined in June 1988, he was observed to walked with a cane in his left hand. He had a mild right antalgic limp. Thigh girth was approximately equal, although slightly small on the right. There was tenderness to deep pressure over the mid-portion of the right femur. Range of motion of the right hip was zero extension to 120 degrees of flexion, 10 degrees internal rotation, 60 degrees external rotation, 65 degrees of abduction, and full adduction. There was one-half inch shortening of the right lower limb. Ranges of motion in both knees and ankles were full. There were no neurovascular impairments in the lower limbs. X-rays showed a well-healed fracture of the mid-shaft of the right femur. The fracture fragments were in nearly anatomic alignment. There was a small amount of heterotopic bone formation near the tip of the greater trochanter at the area where an intramedullary nail had been inserted in the proximal femur. The reported diagnosis was mild malunion of fracture of the mid-shaft right femur, manifested by one-half inch shortening of the right lower limb and persistent pain with weight bearing. During a VA examination in April 1989, the veteran had complaints of constant pain in the right hip area despite wearing a built up shoe for a shortened right leg. He reported that the pain in his right hip and right thigh area was much worse during cold, damp weather. On examination of the right hip, there was an 18-centimeter, vertical surgical scar which was well healed, freely moving, nontender to palpation, and without keloid formation. Range of motion in the right hip was: flexion, 105 degrees; extension, 10 degrees; abduction, 25 degrees; adduction, five degrees; internal rotation, 20 degrees, and; external rotation, 40 degrees. There was 3+ pain with internal and external rotation of the hip joint. The right lower extremity was 2.5 centimeters shorter that the left lower extremity. There was no atrophy or weakness of the glutei, quadriceps, or hamstring muscles. During a squatting maneuver, there was 3+ pain in the right thigh and right hip area. An X-ray of the right femur showed evidence of an old, well-consolidated fracture at the junction of the proximal third and middle third. There was no evidence of recent fracture. The examiner who conducted the clinical examination reported diagnoses of status post fracture of the right femur with shortened lower extremity and post-traumatic arthritis of the right hip (clinically suspected). In a December 1989 rating decision, the veteran was granted entitlement to service connection for status post fracture of the right femur with shortened lower extremity and post- traumatic arthritis of the right hip. The associated disability was rated at 40 percent, effective from time of the veteran's separation from service. The 40 percent rating has remained in effect since that time. The RO has utilized Diagnostic Codes 5010 and 5252 to evaluate the veteran's service-connected disability from fracture of the right femur. Under Diagnostic Code 5010, arthritis due to trauma and substantiated by X-ray findings is rated as degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion of the specific joint involved. Under Diagnostic Code 5252, limitation of flexion of the thigh to 10 degrees is rated 40 percent disabling, limitation of flexion of the thigh to 20 degrees is 30 percent disabling, limitation of flexion of the thigh to 30 degrees is 20 percent disabling, and limitation of flexion of the thigh to 45 degrees is 10 percent disabling. The most recent clinical findings pertaining to limitation of motion of the veteran's right thigh were made during an August 1996 VA examination. During that examination, the veteran reported that his right hip and leg pain had worsened in the recent past to point that the pain was constant as opposed to intermittent. He reported that his hip was getting "tighter," causing him to limp more. He was no longer using a cane, but continued to limp. On examination, with a shoe lift in place, there was still a one-quarter inch leg length discrepancy. There was a pelvic tilt. There was tenderness of the right trochanter, along the pelvic brim and over the lateral right thigh. Range of motion was: flexion, 40 degrees; extension, five degrees with pain; internal rotation, 15 degrees; external rotation, 10 degrees with pain. X-rays of the right hip revealed calcific densities in the soft tissue superior to the greater trochanter. A sclerotic line was seen in the proximal shaft of the right femur. There was deformity involving the right proximal femur. The physician who examined the veteran reported among his diagnoses status post right hip fracture with concomitant arthritis. The veteran testified in January 1997 that his disability from his right leg and hip disorders had worsened. He reported that he had limited, painful motion in his right hip and leg for which he took muscle relaxants and pain medicine. His wife testified that the veteran showed a marked decrease in activities such as walking and jogging after the in- service femur fracture. The veteran testified that he could not do activities which involved prolonged standing, walking, or stair climbing. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1998). Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology ; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. The clinical finding made during the most recent VA examination show that the veteran has limitation of extension of the right thigh to five degrees. This is 10 percent disabling under Diagnostic Code 5251. He also has limitation of flexion of the thigh to 45 degrees. This is 10 percent disabling under Diagnostic Code 5251. He also has arthritis with pain on motion, entitling him to an additional 10 percent rating under 38 C.F.R. § 4.45. When these ratings are combined according to 38 C.F.R. § 4.25, the combined ratings table, the combined rating for the right femur disability does not exceed the currently assigned 40 percent. The Board has considered the veteran's disability from fracture of the right femur with shortening of the leg and arthritis of the right hip in the context of other diagnostic codes. Under diagnostic code 5250, higher ratings are assignable for disability from ankylosis of the hip. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, [or] surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 86 (28th ed. 1994). The clinica1 findings contained in the claims folder do not show that the veteran had right hip ankylosis. Under Diagnostic Code 5254, an 80 percent rating is assignable for flail joint at the hip. There is no showing that the veteran's right hip is manifested by flail joint. Diagnostic Code 5255 provides for higher levels of disability associated with impairment of the femur. A 60 percent rating is assigned for fracture of the cervical neck with false joint, and fracture of the shaft with nonunion without loose motion. An 80 percent rating is assigned for fracture of the femur with nonunion an loose motion. Such ratings are not for application in this case, as the manifestations required to support such ratings are not shown. The veteran has asserted that the disability associated with his right lower extremity should be separately rated based on the impact of the arthritis in his hip. As discussed above, the associated disabilities have been rated based on limitation of motion due to arthritis. Aside from such limitation of motion, with associated painful motion, the veteran does not appear to have compensable disability from his right lower extremity disorders. The Board has noted that a private physician has reported that the shortening of the veteran's right lower extremity is 5.6 centimeters. That degree of shortening does not require additional compensation pursuant to 38 C.F.R. § 4.63(a), as it is less than the shortening (8.9 centimeters) which is deemed to constitute loss of use of a foot. As the veteran's disabilities from his femur and hip disorders remain 40 percent disabling, the claim is denied. B. Chronic Lumbosacral Strain During the April 1989 VA examination, the veteran reported that he had intermittent low back pain. On examination, there was 1+ scoliosis to the right. Percussion of the posterior spinous processes induced 2+ paraspinal muscle spasm without radiculopathy. Range of motion of the lumbosacral spine in a standing position was: forward flexion, 85 degrees; backward extension, 25 degrees; right and left lateral flexion, 30 degrees, and; right and left rotation, 25 degrees. Straight leg and flexed knee raising tests were positive bilaterally. During a squatting maneuver, the veteran experienced 1+ pain in the low back area. Deep tendon reflexes were within normal limits. X- rays of the lumbar spine showed no bony abnormality. Intervertebral spaces, foramina, and pedicles were intact. There was no evidence of spondylolisthesis or spondylolysis. The physician who examined the veteran reported a diagnosis of clinically suspected chronic lumbosacral strain. In the December 1989 rating decision, the veteran was granted entitlement to service connection for chronic lumbosacral strain and awarded a 10 percent rating, effective from the date of the day following his separation from service. An increased rating was awarded in September 1996, effective from August 6, 1996, based on the findings reported during an August 1996 VA examination. During that examination, the veteran complained of constant low back pain. On examination, posture showed a shift with pelvic tilt. There was muscle tightness in the lumbar area with some evidence of chronic spasm. There was tenderness at the right sacroiliac joint. X-rays showed anterior osteophyte formation on the first lumbar vertebra (L1) and anterior wedging. No fractures or dislocations were seen. The physician who examined the veteran reported an impression of lumbosacral strain secondary to original injury and continued problems with right hip and leg length discrepancy. VA outpatient treatment records dated from 1995 to 1997 show decreased range of motion of the lumbar spine. X-rays showed slight disc space narrowing of the lumbar spine. Under Diagnostic Code 5295, a 40 percent evaluation is granted for severe symptoms of lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the foregoing with abnormal mobility on forced motion. A 20 percent evaluation is for assignment where there is muscle spasm on extreme forward bending or unilateral loss of lateral spine motion in a standing position. Based on a review of the entire record, the Board finds that the veteran's disability from chronic lumbosacral strain is manifested by limitation of motion and chronic muscle spasm, with X-ray evidence of osteo-arthritic changes and joint space narrowing. There are no clinical findings of listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, or of abnormal mobility on forced motion. Therefore, the Board concludes that the criteria for a schedular rating in excess of 20 percent are not met under Diagnostic Code 5295. Nor is a rating in excess of 20 percent assignable utilizing other diagnostic codes pertinent to the evaluation of disability associated with back disorder. As there is no evidence of vertebral fracture, ankylosis, or degenerative disc disease, Diagnostic Codes 5285, 5289, and 5293 are not applicable. A higher rating is not assignable pursuant to Diagnostic Code 5292, as the limitation of the motion in the lumbar spine is not shown to be severe. The Board also concludes that the veteran's disability picture from residuals of injury to the lumbar spine does not more closely approximate the criteria for the next higher schedular rating of 40 percent. 38 C.F.R. § 4.7 (1999) C. Right Hand Disability with Distal Ulnar Neuropathy Service medical records show that the veteran sustained a laceration on his right palm in September 1984 when he reached for a falling rifle and was cut by the bayonet which was affixed to it. He was admitted to a hospital where exploratory surgery revealed lacerations of flexor tendons and the common digital nerve and artery to the ring and little fingers. Primary repair was performed. Notes of outpatient treatment dated in January 1985 show findings of increased range of motion in the joints of the ring finger and small finger. However, grip strength in the right hand was 15 pounds compared with 90 pounds in the left hand. During follow-up treatment in November 1985, the veteran had complaints of pain and numbness. On examination, the ring finger had improved range of motion in all its joints. Motor strength was 4/5. There was decreased strength in the little finger. Tinel's sign was positive from the mid palm to the ring finger and little finger. The assessment was status post laceration of ring finger with regenerating ulnar nerve. When seen in April 1986, the veteran had complaints of pain over the area distal to the middle palmar crease and over the fourth metacarpal head. On examination, there was tenderness under the scar with positive Tinel's sign. The ring finger had full range of motion in the metacarpophalangeal and proximal interphalangeal joints. Flexion in the distal interphalangeal joint was to 30 degrees. When seen in May 1987, the veteran's main complaint concerning his hand was pain when doing push-ups. The examiner noted that the veteran was otherwise able to do his job. The veteran was able to flex the distal interphalangeal joint with the proximal interphalangeal joint fixed in extension. He was able to flex the proximal interphalangeal joint with the metacarpophalangeal joint fixed in extension. A treatment note dated in December 1987 documented an examiner's impression of slow improvement of the neurological status of the ulnar digits. The report of a medical examination dated in April 1988 contains a diagnosis of right hand ulnar nerve damage and weakness. An examination reported dated in June 1988 indicated that the veteran had regained normal active motion of the right ring finger. He continued to have complaints of decreased sensation and cold intolerance on the ulnar half of the right finger and the radial half of the small finger. On examination, his upper extremities had full range of motion in all joints and normal strength in the biceps, triceps, and extrinsic and intrinsic muscles of the hand. There was normal active range of motion in all fingers except for the right ring finger distal interphalangeal joint, which lacked the final five degrees of full flexion. Two point sensation discrimination was 4 millimeters in all fingers except the radial half of the small finger and the ulnar half of the ring finger, where two pint discrimination was greater than 10 millimeters. Sensation to heat and cold stimuli was normal. The pertinent diagnosis was neuropathy, incomplete, sensory only, common digital nerve of the right hand, manifested by impairment of fine sensation in the ring and small fingers, late effect of laceration. During the April 1989 VA examination, the veteran reported that his right hand was numb all the time. On examination, there was reduced sensation to pin prick in the palm of the hand and in the fifth finger, and in the lateral part of the fourth finger. The examiner remarked that the veteran's right hand strength had improved after the tendon repair, but numbness, although improved, persisted. The reported diagnosis was traumatic distal ulnar neuropathy with reduced sensation. In a December 1989 rating decision, the veteran was granted service connection for distal ulnar neuropathy of the right (minor) hand and was awarded a 10 percent rating, effective from the date of the day following his separation from service. In September 1996, the rating was increased to 20 percent, effective from April 7, 1995-the day of a VA peripheral nerve examination during which findings of weakness in muscle strength in some of the muscles in his right hand, and minimal decreased in muscle bulk of the right hand compared to the left. There was tenderness to palpation of the scar extending from the base of the middle finger to the wrist on the palmar side. Hyperflexion and hyperextension of the wrist also cause discomfort that radiated into the fingers. There were no fasciculations. Sensory examination revealed the absence of pain and temperature perception in the distribution of the ulnar nerve of the right hand. The examiner reported that the veteran had "significant" residuals from an ulnar nerve injury with both sensory and motor components. The examiner suggested that the veteran may have mild to moderate carpal tunnel syndrome on the right, as the median nerve could have been somewhat compromised by the surgical exploration of the hand. The examiner reported that the right hand was not stable, and needed further follow-up on a yearly or bi-yearly basis. The most recent neurological assessment of the veteran's right hand was conducted in July 1996. The veteran reported that he had loss of feeling in his entire right hand, mostly in the fourth and fifth digits, but to a lesser degree in the first, second, and third digits, with normal sensation only in the area proximal to the thumb on the dorsal aspect. He complained that the scar was sensitive. He described a feeling of electricity running up and down from his hand to his elbow and out into the fingertips. The examiner noted that the veteran was left handed. On examination, there was mild, generalized, nonfocal muscle atrophy of all of the muscles of the right hand compared to the left. Muscle strength was 3.5/5 in the ulnar innervated muscles, and 4/5 in the median innervated muscles, both groups being "significantly" weak. The scar which ran the entire length of the palm was somewhat tender to deep pressure. The pressure, according to the veteran, caused tingling in his fingertips. A sensory examination showed decreased perception of pain and temperature over the entire right hand to the wrist. With the exception of the radial innervation portion of the back of the wrist. The sensory decrease was complete in the ulnar innervated area and was partial, but definite, in the median innervated area. The examiner reported that the veteran had significant motor and sensory residuals of damage to the ulnar nerve with superimposed median nerve difficulty. The examiner suggested the possibility that he also had carpal tunnel syndrome or compression of the median nerve from the surgical scar. The veteran testified in January 1997 that he had difficulty keeping a grip on objects such as tools. He reported that he had numbness in his right fingers and palm. He stated that his right hand had no sensation to temperature. He asserted that his right hand disability had worsened over time but was about the same as when it was last examined by a doctor five months earlier. In a handwritten statement filed with the RO in September 1998, the veteran reported similar symptoms of numbness, tingling, weakness, and a sensation of electricity. The RO has evaluated the disability associated with the veteran's right hand disorder utilizing Diagnostic Code 8516. Under Diagnostic Code 8516, for the ulnar nerve, mild incomplete paralysis is rated 10 percent, and moderate incomplete paralysis is rated 30 percent on the major side and 20 percent on the minor side. Severe incomplete paralysis is rated 40 percent disabling on the major side and 30 percent disabling on the minor side. The term "incomplete paralysis", with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (1999). The rating regulations provide that neuritis of a peripheral nerve characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is rated on the scale provided for the appropriate nerve, with a maximum equal to severe, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (1999). Complete paralysis of the ulnar nerve is manifested by "griffin claw" deformity due to flexor contraction of the ring and little fingers, and marked atrophy in the dorsal interspace and the thenar and hypothenar eminences, or; loss of extension of the ring and little fingers, inability to spread the fingers or abduct the thumb, or; flexion of the wrist is weakened. In this case, the veteran's right hand ulnar neuropathy is manifested by both sensory and motor changes. In addition to decreased sensation to pinprick and temperature, the hand shows mild muscle atrophy and muscle weakness, with loss of grip strength, particularly in the ring and little fingers. However, the veteran has full or nearly full active range of motion in all the fingers of his right hand. During the August 1996 VA orthopedic examination, he was able to completely close his right hand. His sensation loss has not been described as total or near total. He does retain some motor strength in the right hand. The Board has considered the veteran's subjective complaints given both during examinations, in testimony, and in written statements. He has not asserted that the disability associated with right hand ulnar neuropathy is tantamount to loss of use of the hand. From a functional standpoint, his main complaint is decrease in grip strength and partial loss of sensation. As his assertions and the clinical findings indicate that he has residual sensation and motor strength, without deformity or compromise in active range of motion or fine motor skills, the Board finds that the incomplete paralysis of the ulnar nerve is not more than moderate. The Board concludes that the criteria for a schedular rating in excess of 20 percent under Diagnostic Code 8516 have not been met. In addition to the ulnar nerve disability, the veteran also has a scar on the palm of the hand which is secondary to the inservice laceration. The scar is objectively tender. With application of 38 C.F.R. § 4.7, the Board finds that the scar more nearly meets the criteria for the 10 percent rating assigned for an objectively tender and painful scar under Diagnostic Code 7804. Accordingly, the combined rating for residuals of the laceration more closely approximate the criteria for a schedular rating of 30 percent. 38 C.F.R. § 4.25. D. Extraschedular and Other Considerations In reaching its decision, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the effects the disabilities may have on the earning capacity of the veteran. 38 C. F. R. §§ 4.1, 4.2, 4.41 (1999). The original injuries have been reviewed and the functional impairments that can be attributed to pain and weakness has been taken into account. The Court has held that pursuant to 38 C.F.R. § 4.40 the Board must consider and discuss the impact of pain in making its rating determination. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997); DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). Section 4.40 provides in part that functional loss may be due to pain, as supported by adequate pathology, and as evidenced by the visible behavior of the claimant undertaking the motion. The section also provides that weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. Factors listed for consideration in 38 C.F.R. § 4.45 include less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. In this case, the veteran's disability from fracture of the right femur with arthritis of the right hip has been rated based on the associated limitation of motion, including limitation of motion due to pain. The veteran's disability from chronic lumbosacral strain has been rated based on limitation of motion and the "characteristic pain" associated with motion. The other factors to be considered are not clinically shown. The veteran's disability from distal ulnar neuropathy of the right hand is manifested by sensation loss, motor weakness, and muscle atrophy. Such manifestations are contemplated in the schedular ratings pertaining to degree of incomplete paralysis of the peripheral nerves. His right hand disorder is not manifested by symptoms not contemplated by the regulations pertaining to nerve injuries. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1) (1999). The governing norm in these exceptional cases is 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, as to render impractical the application of the regular schedular standards. Id. The Board first notes that the schedular evaluations in this case are not inadequate. There are higher schedular ratings assignable for disability associated with disorders of the lumbar spine and the right hip and femur. However, the manifestations required to support such higher ratings are not presented in this case. There are higher ratings assignable for incomplete paralysis of the ulnar nerve, but the medical evidence reflects that the which would warrant a higher rating are not present in this case. Second, the Board finds no evidence of an exceptional disability picture in this case. The veteran has not required hospitalization or frequent treatment for his service-connected disabilities, nor is it otherwise shown that such disabilities otherwise so markedly interfere with employment as to render impractical the application of regular schedular standards. Rather, for the reasons noted above, the Board concludes that extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted in this case. The RO's failure to discuss extraschedular consideration and to refer the claim for assignment of such a rating as provided in the regulation was not prejudicial to the appellant in light of the Board's findings on that issue. ORDER The claim for service connection for headaches is not reopened. An increased rating for residuals of fracture of the right femur with shortening of the right lower extremity and traumatic arthritis of the right hip is denied. An increased ratings for chronic lumbosacral strain is denied. An increased rating for the right hand disability is granted, subject to the criteria that govern the payment of monetary awards. REMAND The veteran has filed a NOD with the RO's June 1998 rating decision in which it denied service connection for dyspepsia with reflux, claimed as secondary to the veteran's service- connected disabilities. Therefore, the RO is required to provide him a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999) (When an NOD is filed, the Board should remand, rather than refer, the issue to the RO for the issuance of a SOC). The veteran has claimed service connection for a neuropsychiatric disorder and has submitted medical evidence which suggests that such a disorder is secondary to his service-connected disabilities. The same evidence suggests that the claimed neuropsychiatric disorder, in combination with other disorders, including those that are service connected, result in total disability. The issues of entitlement to service connection for a gastrointestinal disorder and a neuropsychiatric disorder, and the ratings assigned thereto if such disorders are determined to be service connected, are inextricably intertwined with the issue of entitlement to TDIU. See Harris v. Derwinski, 1 Vet. App. 280 (1991). To ensure full compliance with due process requirements and the duty to assist the claimant in developing the evidence, the case is REMANDED to the RO for the following action: 1. The RO should provide the veteran and his representative a SOC that conforms with the requirements of 38 U.S.C.A. § 7105(d)(1) (West 1991), in particular, one that provides the veteran the law and regulations pertaining to its June 1998 rating decision denying service connection for dyspepsia with reflux; a discussion of how such laws and regulations affect the RO's decision; and a summary of the reasons for such decision. The veteran and his representative must be given an opportunity to respond to the SOC. 2. The RO should undertake appropriate development to determine if the veteran has disability from a neuropsychiatric disorder which is secondary to his service-connected disabilities. The RO should adjudicate that claim. 3. The veteran should be afforded a VA social and industrial survey to assess his employment history and day-to-day functioning, as well as his prospects for gainful employment, as such prospects would be impacted upon by his service connected disabilities. A written copy of the report should be inserted into the claims folder. 4. After undertaking such further development as the RO deems appropriate, including, if necessary, re-examination of the veteran's service-connected disabilities, the RO should readjudciate the claim of entitlement to TDIU. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond. Thereafter, the case should be returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. The Board notes, however, that an appeal consists of a timely filed NOD in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (1999). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. 38 C.F.R. § 20.202 (1999). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. NANCY I. PHILLIPS Member, Board of Veterans' Appeals