Citation Nr: 0005064 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 96-21 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for service-connected degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1 and radiculopathy, currently rated as 20 percent disabling. 2. Whether or not the veteran has submitted new and material evidence to reopen a claim of entitlement to service connection for bilateral fallen arches and pes planus. 3. Entitlement to service connection for left hand, wrist, and finger disabilities (other than radiculopathy). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from September 1967 to September 1973 and from February 1979 to January 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision by the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO denied the veteran's claim of entitlement to a disability rating over 10 percent for service-connected degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1 and radiculopathy; denied the veteran's claims of entitlement to service connection for right and left hand, wrist and finger numbness as secondary to his service-connected cervical spine disability and for Meniere's disease, and found that new and material evidence to reopen the veteran's claim of entitlement to service connection for fallen arches with a history of pes planus had not been submitted. In a rating decision issued in November 1996, the RO granted the veteran's claim of entitlement to service connection for Meniere's disease (characterized as "Labyrinthitis"), increased the disability rating assigned for the veteran's degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1 and radiculopathy from 10 to 20 percent disabling, and granted the veteran's claim of entitlement to service connection for right hand, wrist and finger numbness. Accordingly, the issues of service connection for Meniere's disease and for right hand, wrist and finger numbness are no longer in appellate status. However, the 20 percent disability rating for the veteran's degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1 and radiculopathy does not represent a full grant of the benefit sought on appeal, so this issue is still in appellate status. AB v. Brown, 6 Vet.App. 35 (1993). Service connection for fallen arches with a history of pes planus was denied by a December 1993 rating decision. This was the last final decision regarding such issue. See 38 U.S.C.A. § 7105 (West 1991). The veteran's claim was initially before the Board in March 1998, at which time it was remanded for additional development. In its March 1998 remand, the Board referred the matters of whether the veteran was entitled to nonservice-connected disability pension benefits and/or a total disability rating based on unemployability for compensation purposes. As these issues have yet to be developed, they are again referred to the RO for proper adjudication. In September 1997, the veteran was afforded a hearing before a member of the Board. As the Board member who conducted such hearing is no longer at the Board, in keeping with applicable regulations, the Board wrote the veteran in November 1999 asking if he wanted another Board hearing. The letter indicated that if the veteran did not reply within 30 days of the letter, it would be assumed that the veteran did not want an additional hearing and proceed accordingly. On January 10, 2000, it was noted that the veteran had not replied to the letter. As noted above, the veteran's claim of service connection for left hand, wrist, and finger numbness as secondary to his service-connected cervical spine disability (cervical spondylosis with spasm and right shoulder pain) is already in appellate status. However, to the degree that the veteran is claiming he has radiculopathy in his left hand, wrist, and fingers from his cervical spine, such contention is in effect a claim for an increased rating for his cervical spine disability. Accordingly, the claim of an increased rating for cervical spondylosis with spasm and right shoulder pain is referred to the RO for proper adjudication, and the claim of service connection for left hand, wrist, and finger numbness as secondary to the veteran's service-connected cervical spine disability (cervical spondylosis with spasm and right shoulder pain) is recharacterized as a claim for service connection for left hand, wrist, and finger disabilities (other than radiculopathy). FINDINGS OF FACT 1. The RO denied the veteran's claim for service connection for fallen arches with pes planus in December 1993. This decision is final. 2. Even with painful motion and pain with flare-ups considered, the veteran's degenerative disc disease of the lumbar spine is moderate rather than severe; he has recurring attacks, but he has relief from such attacks which is more than just intermittent. 3. The veteran has moderate limitation of motion of the lumbar spine; however, even with painful motion and pain with flare-ups considered, his limitation of motion is not severe. 4. The veteran does not have severe lumbosacral strain, and his lumbosacral spine is not ankylosed. 5. Evidence submitted subsequent to the December 1993 RO denial of service connection for fallen arches bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for bilateral fallen arches with pes planus. 6. The veteran's claim of service connection for bilateral fallen arches and pes planus is plausible. 7. The veteran's claim of service connection for left hand, wrist, and finger disabilities (other than radiculopathy) is plausible. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1, and radiculopathy have not been met. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5293, 5289, 5292, 5295 (1999). 2. Evidence submitted since the December 1993 RO decision, which denied the veteran's claim of entitlement to service connection for fallen arches with pes planus is new and material and, therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999), Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 3. The veteran has submitted evidence of a well-grounded claim of service connection for bilateral fallen arches and pes planus. 38 U.S.C.A. § 1110, 5107 (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). 4. The veteran has submitted evidence of a well-grounded claim of service connection for left hand, wrist, and finger disabilities (other than radiculopathy). 38 U.S.C.A. § 1110, 5107 (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The veteran completed a Social Security disability report in 1993. He described his disabling condition as bad discs in his low back and neck. The veteran underwent a VA general medical examination in May 1993. It was noted that x-rays showed that there was disc narrowing at L5, S1 of the lumbosacral spine. The veteran underwent a VA medical examination for his joints in May 1993. It was noted that x-rays showed that there was no evidence of bony abnormalities. Private treatment records show that the veteran was seen from June 1994 to September 1994 for chronic back pain. In a March 1995 statement, the veteran asserted that he had severe back pain to the point that he had difficulty sleeping at night, and could not even sit normally. He stated that he needed to shift his weight and extend his leg. He described pain that radiated down his legs, and indicated that frequently his feet went numb, creating a further danger that he might fall. By decision dated in June 1995, the Social Security Administration determined that the veteran had been disabled due to chronic low back pain since February 1993. An examination report from Dr. A. A. dated in October 1993 showed that the veteran complained of back pain on a daily basis. Examination showed that there was tenderness to the lower back, but no paravertebral muscle spasm. There was pain on straight leg raising, but he was not in obvious pain on getting on and off the examination table. There was decreased sensation to pin prick and light touch to the left arm and leg. Relevant impressions were chronic low back pain and lumbar disc disease. Under assessment, the examiner wrote that the veteran was permanently and totally disabled as result of his medical problems. In the veteran's October 1995 notice of disagreement, he stated that he was in pain, and could not sit in one position for too long. He asserted that the VA Medical Center never did an MRI. Copies of VA Medical Center treatment records were submitted from 1995 to 1996. They do not show treatment for the low back. In the veteran's May 1996 substantive appeal, he stated that he could not sit very long, and when he did sit, he was constantly shifting his position because of the pain. He stated that he could not afford to run to the doctor every day for his pain, so that the medical evidence did not show moderate recurrent attacks, but that the attacks were still taking place. The veteran underwent a VA examination for his spine in May 1996. Examination showed no postural abnormalities or fixed deformities. There was spasm of the paralumbar muscles on the left. There was no tenderness. Heel-toe walking was normal. He had a normal gait with normal weight bearing, propulsion, and balance. There was painless range of motion of the lumbar spine. Forward flexion was 65 degrees; backward extension was 35 degrees; left lateral flexion was 15 degrees; right lateral flexion was 20 degrees; and rotation bilaterally was 20 degrees. Deep tendon reflexes were normal. There was diminished sensation to pinprick in L4-5 and S1 on the left. X-ray of the lumbar spine showed slight intervertebral narrowing of the intervertebral disc L5 and S1. The examiner's diagnosis was narrowing of the intervertebral L5-S1 with radiculopathy from L4-5 and S1 on the left. The veteran was afforded a hearing before a member of the Board in September 1997, a transcript of which has been associated with the claims folder. The veteran stated that he was getting Social Security because of his back and neck. He stated that he stopped going to the VA a year prior. He stated that he was seeking treatment from a private neurologist in Winchester. He testified that he had not been working since he left service, because of physical and mental conditions. He described pain in his low back radiating down his left leg. He testified that he could hardly get out of a car because of his pain in his low back. He stated that he had pain when he got up in the morning. He stated that he had to lie down often. Copies of treatment records were submitted from the E. A. Haws Health Center from 1997. They do not show treatment for the low back. Dr. P. B. submitted copies of treatment records from 1995 to 1997. They do not show treatment for the low back. Copies of treatment records were submitted from Winchester Neurological from 1995 to 1997. They do not show treatment for the low back. Copies of treatment records were submitted from Winchester Orthopedic from 1997 to 1998. They do not show treatment for the low back. The veteran underwent a VA neurological examination in July 1998. The veteran complained of a numbness and tingling sensation originating in the left hip and radiating into the posterior aspect of the left thigh to the left leg. It was noted that at times he could poke himself in the dorsal aspect of the left foot without any sensation. Deep tendon reflexes were biceps 1, triceps trace, brachioradialis trace and symmetric, knee jerks 1+, and ankles jerks were trace. The sensory exam was symmetric to light touch and pinprick. Vibratory sense was symmetric to both ankles and knuckles of the thumbs bilaterally. Under diagnosis, the examiner wrote left lower lumbar radiculopathy which was mostly likely stable, with no objective findings on examination to suggest flare-up or acute recurrence of radiculopathy. The veteran underwent a VA examination for his spine in January 1999. The examiner stated that the C file was not available. The veteran stated that he continued to have constant back pain, sometimes extending toward the left leg. He denied weakness in his back, but described stiffness in the morning and difficulty standing up after getting out of bed. He indicated that he had to move gradually until stiffness and spasm subsided. He stated that because of because of pain he had lack of endurance. He stated that once every two months, sometimes after long driving, he had flare-ups that made him lay down, and that usually after 15- 20 minutes, the pain subsided. He indicated that he had been unemployed since February 1992. He described daily activities of staying around the house and watching TV. He indicated that he did not have difficulty taking care of himself, and was able to walk half a mile, and climb two flights of stairs. He stated that he did not use back braces, and did not take any medication for his back pain, and did not have history of previous surgery. Examination of the veteran showed that he did not appear to be in any acute distress. He was able to walk with tip toe and heel without difficulty. His posture and gait were normal. Sensories in the right leg were 4 over 5, with no evidence of radiculopathy noted. Sensories in the left leg were also 4 over 5, but there was obvious radiculopathy and absence of sensory along the L5/S1 dermatomes. The knee jerks on the right side were 3+ and on the left side were 1+. Ankle jerks were 3+ on both the right and left sides on a scale of 0 to 4. Muscle strength against gravity and force were bilaterally equal and good. Range of motion of the lumbar spine revealed painless forward flexion of 60 degrees, with pain from 60 to 70 degrees; painless backward extension of 20 degrees, with pain from 20 to 30 degrees; painless lateral rotation on the left of 15 degrees, with pain from 15 to 20 degrees; painless lateral rotation on the right of 20 degrees, with pain from 20 to 25 degrees; and painless rotation at 30 degrees, both right and left. The veteran was asked to do several minutes of forward flexion and backward extension which he did with some difficulty. After exercise, he had painless forward flexion of 50 degrees with pain from 50 to 60 degrees, and painless extension of 10 degrees, with pain 10 to 15 degrees. X-rays of the lumbosacral spine reported a normal lumbosacral spine. Diagnosis was chronic lumbosacral strain with left radiculopathy along L5/S1 and limitation of range of motion. Analysis Entitlement to an increased rating from 20 percent for service-connected degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1 and radiculopathy. The veteran's claim for increased compensation is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Court has also stated that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). Lumbosacral strain with muscle spasm on extreme forward bending or loss of lateral spine motion is assigned a 20 percent disability rating. Severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion is assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). Favorable ankylosis is assigned a 40 percent disability rating. Unfavorable ankylosis is assigned a 50 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5289 (1999). Slight limitation of motion of the lumbar spine is assigned a 10 percent disability rating; moderate limitation of motion of the lumbar spine is assigned a 20 percent disability rating; and severe limitation of motion of the lumbar spine is assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). When intervertebral disc syndrome is moderate with recurring attacks, a 20 percent disability rating is assigned. When intervertebral disc syndrome is severe with recurring attacks, with only intermittent relief, a 40 percent disability rating is assigned. When intervertebral disc syndrome is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief is assigned a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). The Court has held that VA must consider the applicability of regulations relating to pain. Quarles v. Derwinski, 3 Vet.App. 129, 139 (1992); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1993); Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that codes that provide a rating solely on the basis of loss of range of motion must consider 38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to functional loss of the joints due to pain, weakened movement, excess fatigability, or incoordination). Therefore, to the extent possible, the degree of additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination should be noted. Based on these decisions, in a December 1997 opinion, the General Counsel of the VA concluded that Diagnostic Code 5293 for intervertebral disc syndrome involves loss of range of motion, therefore, 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this Diagnostic Code if the veteran has received less than the maximum evaluation under that Code. VAOPGCPREC 36-97, (December 12, 1997). The veteran's disability has been evaluated by the RO under Diagnostic Code 5293 as 20 percent disabling, or moderate, meaning that the evidence shows recurring attacks of intervertebral disc syndrome. In order to get an increased rating to 40 percent, the evidence must show that the veteran's intervertebral disc syndrome is severe, meaning that there are recurring attacks, with relief which is intermittent. As will be described below, the evidence does not show such findings. There is no question that the veteran has degenerative disc disease of the lumbar spine at L5-S1 resulting in neurological symptoms. At his May 1996 VA examination, the veteran had spasm of the paralumbar muscles on the left, and diminished sensation to pinprick at L4-5 and S1 on the left. Also, at the veteran's January 1999 VA examination, the examiner noted that the veteran had obvious radiculopathy and absence of sensory along the L5/S1 dermatomes. It is also noted that the veteran has consistently described pain that radiates down his left leg. The question that must be resolved is whether such intervertebral disc syndrome with the neurological symptoms described above is best described as moderate, resulting in a 20 percent rating, or severe, resulting in a 40 percent rating. For the veteran's degenerative disc disease to be described as severe, the evidence would have to show that the veteran had recurring attacks of intervertebral disc syndrome, but that the attacks were of such frequency that there was only intermittent relief. At the veteran's July 1998 VA examination, the examiner described the veteran's left lower lumbar radiculopathy as being most likely stable, with no objective findings to suggest flare-ups or acute recurrence of radiculopathy. Also, while the veteran has described consistent pain radiating into his left leg, at his January 1999 VA examination, he specified that he had flare-ups that made him lay down only once every two months, and that after 15-20 minutes, the pain subsided. Thus, notwithstanding the evidence which shows that the veteran has neurological symptoms including radiculopathy from his degenerative disc disease, the evidence does not show that the veteran's intervertebral disc syndrome is severe. An examiner described the veteran's radiculopathy as most likely stable, and the veteran himsef stated that the flare-ups that made him lay down occurred only once every two months. In summary, the evidence shows that the veteran has recurring attacks of intervertebral disc syndrome, but his relief from such attacks is more than just intermittent. Accordingly, the evidence does not show that the veteran's intervetebral disc syndrome is severe. Even when the regulations in 38 C.F.R. § § 4.40 and 4.45 pertaining to functional loss of the joints due to pain, weakened movement, excess fatigability, or incoordination, even during flare-ups, are considered pursuant to the General Counsel opinion at VAOPGCPREC 36-97 (December 12, 1997), the veteran's disability is not such that it is the equivalent of severe intervertebral disc syndrome with recurring attacks and intermittent relief. Thus, the veteran is not entitled to an increased rating when his low back disability is considered pursuant to Diagnostic Code 5293. The veteran is not entitled to an increased rating when his disability is considered under Diagnostic Code 5292 for limitation of motion. Under Diagnostic Code 5292, a 20 percent rating is assigned for moderate limitation of motion. In order to get an increased rating to 40 percent, the evidence would have to show that the veteran has severe limitation of motion. At the veteran's May 1996 VA examination, range of motion testing of the lumbar spine showed forward flexion of 65 degrees; backward extension of 35 degrees; left lateral flexion of 15 degrees; right lateral flexion of 20 degrees; and rotation bilaterally of 20 degrees. All of such motion was painless. At the veteran's January 1999 VA examination, range of motion of the lumbar spine had decreased somewhat for forward flexion and backward extension, but had stayed the same for lateral rotation bilaterally, and had improved for bilateral rotation. Forward flexion was 60 degrees; backward extension was 20 degrees; and rotation bilaterally was 30 degrees. All of such motion was painless. It was also noted that after exercise of the back, the veteran had decreased forward flexion to 50 degrees and extension to 10 degrees. The veteran obviously has some limitation of motion of the low back. It is also conceded that during the flare-ups the veteran has described he has once every 2 months that make him lie down, he would have diminished range of motion. However, based on the evidence from the May 1996 and January 1999 VA examinations, his limitation of motion can not be classified as severe. In particular, he was always able to flex his low back at least 50 degrees without pain, even after exercising. While the veteran's extension at 10 degrees after exercising is not as good as his flexion, his lateral flexion (or lateral rotation) has been consistent and adequate, and his rotation of 30 degrees was close to normal. In summary, even when 38 C.F.R. §§ 4.40 and 4.45 are considered (the regulations pertaining to functional loss of the joints due to pain, weakened movement, excess fatigability, or incoordination) and even when functional loss during flare-ups is considered, the preponderance of the evidence does not show that the veteran's limitation of motion is more than moderate. Under Diagnostic Code 5295 for lumbosacral strain, in order to receive a 40 percent rating, the evidence has to show that the veteran has severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space. A 40 percent rating can also be assigned if there is some of the above with abnormal mobility on forced motion. The evidence does not show severe symptomatology enough to warrant a 40 percent rating. The evidence does not show that the veteran has listing of the whole spine to the opposite side (at his January 1999 VA examination, he had normal posture, and at his May 1996 VA examination, he had normal gait with normal weight bearing, propulsion, and balance). The evidence does not show that the veteran has positive Goldthwaite's sign. Also, the evidence does not show that the veteran has marked limitation of forward bending in standing position (at his January 1999 VA examination he could flex to 60 degrees, and to 50 degrees after exercise, and at his May 1996 VA examination, he could flex to 65 degrees). In the alternative, while the evidence shows that the veteran has met at least one of the criterion necessary to demonstrate severe lumbosacral strain (the May 1996 VA examination reported that the veteran had narrowing of the intervertebral disc at L5, S1, and the May 1996 and January 1999 VA examinations showed that he had loss of lateral motion), the evidence does not show that the veteran has abnormal mobility on forced motion. At his January 1999 VA examination, the veteran's muscle strength against gravity and force were bilaterally equal and good. Accordingly, the objective evidence does not more nearly approximate the criteria for an increased rating to 40 percent under Diagnostic Code 5295. As the veteran's spine is not ankylosed, he is not entitled to an increased rating to 40 percent under Diagnostic Code 5289. Accordingly, under the criteria of Diagnostic Codes 5293, 5292, 5295, and 5289 and the provisions of 38 C.F.R. § 4.7, a rating higher than 20 percent is not warranted. There is no indication in the record that the schedular evaluation is inadequate to evaluate the impairment of the veteran's earning capacity due to the disability at issue, and it does not present 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. Thus, the provisions of 38 C.F.R. § 3.321 relating to extraschedular evaluations are not applicable here. In reaching the determination, consideration has been given to the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Specifically, the RO ordered special VA examinations to determine the extent of the veteran's degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1, and radiculopathy. The Board did not base its decision solely on a single VA examination as one of the major factors for consideration in this case. Therefore, the RO and the Board have considered all the provisions of Parts 3 and 4 that would reasonably apply in this case. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the preponderance of the evidence is against the veteran's claim. Thus, his claim for an increased rating from 20 percent disabling for degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1, and radiculopathy must be denied. Whether the veteran has submitted new and material evidence in order to reopen his claim of service connection for bilateral fallen arches and pes planus. As noted above, in December 1993, the RO denied the veteran entitlement to service connection for fallen arches with pes planus. Under applicable law and VA regulations, that decision is final, and the veteran's claim may not be reopened and reviewed unless new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156 (1998). Under 38 C.F.R. § 3.156 (a) (1998), new and material evidence means evidence not previously submitted to 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. There is no requirement, however, that in order to reopen a claim, that the new evidence, when viewed in the context of all the evidence, both new and old, creates a reasonable possibility that the outcome of the case on the merits would be changed. Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998) (expressly rejecting the standard for determining whether new and material evidence had been submitting sufficient to reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). The United States Court of Appeals for Veterans Claims (Court) has held that the Board is required to review all of the evidence submitted by a claimant since the last final disallowance of a claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In light of Hodge, in Elkins v. West, 12 Vet. App. 209 (1999) (en banc), and in Winters v. West, 12 Vet. App. 203 (1999) (en banc), the Court set forth a three-part test for the adjudication of previously denied claims to which finality had attached. Under the new Elkins test, the Secretary must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally decided claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Elkins at 218-219; Winters at 206. New and material evidence has been submitted for the purpose of reopening the veteran's claim for entitlement to service connection for bilateral fallen arches and pes planus. The veteran was denied entitlement to service connection for fallen arches with pes planus in December 1993, because it was noted that no chronic foot condition was noted at his recent examination, and that pes planus was a developmental abnormality, and there was no showing of trauma or other disability or treatment during service. Since that time, the veteran has submitted private treatment records from Dr. P. B. from 1995 to 1997. Dr. P. B. noted that the veteran had pes planus and opined that the veteran's time in service exacerbated his condition. These private treatment records are new in that they are not merely cumulative of other evidence of record. There had not been an etiological opinion regarding whether the veteran's time in service had exacerbated his foot condition. The records are also material to the veteran's claim in that they address the reason for the RO's denial of the veteran's claim. The veteran's claim was denied in December 1993 because there was an absence of trauma in service; however, the new evidence addresses the absence of trauma in service. Dr. P. B. specifically opined that the long period of time that the veteran spent on his feet in service exacerbated his condition. Therefore, the private treatment records that the veteran has submitted from Dr. P. B. either by themselves or in connection with the evidence already assembled, are so significant that they must be considered in order to fairly decide the merits of the claim. Accordingly, the claim is reopened, and the veteran's claim must be considered in light of all the evidence, both old and new. Whether the veteran's claims of entitlement to service connection for bilateral fallen arches and pes planus, and for left hand, wrist, and finger disabilities (other than radiculopathy) are well-grounded. When a claim is reopened, under Elkins and Winters, it must be determined whether the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. The veteran's statements as to the flatness of his feet and accompanying pain since service is competent evidence for well-groundedness purposes regarding a claim for service connection for pes planus. Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995) The service medical records show that in February 1972, the veteran reported that he either currently had foot trouble or had had foot trouble at one time. In January 1988, a medical examiner noted that the veteran had foot pain with prolonged standing. Post-service medical records show that Dr. P. B. diagnosed the veteran with pes planus in August 1995, and that in December 1997, he opined that the veteran's long periods of time spent in service exacerbated his condition. In light of these facts, and the fact that the veteran has described pain from his pes planus since leaving service, the veteran's claim of entitlement to service connection for bilateral fallen arches and pes planus is plausible and, therefore, well-grounded. See 38 U.S.C.A. § 5107 (West 1991); Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995) Regarding the veteran's claim for service connection for left hand, wrist, and finger disabilities (other than radiculopathy), the service medical records show that the veteran was seen in March 1990 for left hand paresthesia. At a VA examination in May 1993 ( a little over 3 months after service), the veteran complained of arthralgia involving the left wrist, and was diagnosed with DeQuervain's disease on the left. He reported at the May 1993 examination that he had begun to notice paresthesia in the ulnar border of his hand during service. In light of the facts discussed above, the veteran's claim of entitlement to service connection for left hand, wrist, and finger disabilities (other than radiculopathy) is plausible and, therefore, well-grounded. See 38 U.S.C.A. § 5107 (West 1991); Savage, 10 Vet. App. at 497.. ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with history of disc protrusion, L5-S1, and radiculopathy is denied. New and material evidence having been submitted to reopen the claim of entitlement to service connection for bilateral fallen arches and pes planus, the claim is reopened and found to be well grounded. As the claim of service connection for service connection for left hand, wrist, and finger disabilities (other than radiculopathy) is well grounded, the appeal to this extent is allowed subject to further action as discussed here in below. REMAND The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. In light of the fact that the veteran's claims of service connection for bilateral fallen arches with pes planus, and left hand, wrist, and finger disabilities (other than radiculopathy) are well-grounded, the duty to assist is triggered. 38 U.S.C.A. § 5107 (b) (West 1991). The VA's duty to assist requires that the veteran be afforded a VA examination with respect to his disability, which should take into account the records of the veteran's prior medical history, and includes an opinion as to the etiology of his disability before a decision concerning his appeal can be made. See Pond v. West, 12 Vet. App. 341, 346 (1999); Moore v. Derwinski, 1 Vet. App. 401, 405 (1991). Regarding the veteran's claim for service connection for bilateral fallen arches and pes planus, Dr. P. B.'s discussion in August 1995 and December 1997 regarding the veteran's pes planus raises the possibility that the veteran's pes planus was aggravated in service. Accordingly, the veteran's claim must be remanded in order to afford the veteran an examination. The examiner should specifically determine the nature of all disorders of the veteran's feet and the relationship of those disorders to service. The examiner must answer all requested questions to the extent feasible. Regarding the veteran's claim for service connection for left hand, wrist, and finger disabilities (other than radiculopathy), in light of the finding of paresthesia in the left hand in service, and the diagnosis of DeQuervain's disease shortly after service, the veteran's claim should be remanded for an examination. The examiner should specifically determine the nature and etiology of all disorders of the veteran's left hand, wrist, and fingers. The examiner should specifically comment on the paresthesia that the veteran experienced in service, as well as the DeQuervain's disease that the veteran was diagnosed with shortly after service. For the reasons stated above, this case is REMANDED to the RO for the following actions: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The RO should take appropriate steps to obtain and associate with the claims file any copies of VA and private medical records regarding the veteran's feet and left hand, wrist, and fingers, that have not already been associated with the claims folder. 3. The veteran should be scheduled for a VA examination for his feet as well as for his left hand, wrist, and fingers. The claims folder, to include all evidence added to the record in accordance with the paragraphs above, and a copy of this REMAND should be made available to the examiner in conjunction with the examination. The veteran should be examined to determine the nature and etiology of all bilateral foot disorders that might be present. The examination report should include responses to the following medical questions: a. State as precisely as possible diagnoses of all disorders involving the veteran's feet, both right and left. b. What was the time of onset of all foot disorders diagnosed in question (a)? c. Please identify all diagnosed foot disorders identified in question (a) that are of developmental or congenital origin. d. For all foot disorders that began before September 1967, respond to each of the following questions: (1) did the veteran suffer manifestations of any foot disorders during his time in service (from September 1967 to September 1973, or from February 1979 to January 1993)?; (2) if there were manifestations of a foot disorder during service (from September 1967 to September 1973, or from February 1979 to January 1993), did such manifestations constitute an increase in the severity of the foot disorder?; and (3) if such manifestations of a foot disorder during service (from September 1967 to September 1973, or from February 1979 to January 1993), constituted an increase in the severity of the foot disorder, was the increase beyond the natural progress of the disorder? The veteran should also be examined to determine the nature and etiology of all left hand, wrist, and finger disorders that might be present. The examination report should include responses to the following medical questions: a. Describe all current disorders that the veteran has involving the left hand, wrist, and fingers (please list the diagnoses). The examiner should specifically comment on whether the veteran has DeQuervain's disease. b. Does the veteran have radiculopathy extending into his left hand, wrist, and fingers, from his service-connected cervical spine disability, separate and distinct from any disorders diagnosed in question (a)? c. Are any of the identified disorders in question (a) related to the veteran's paresthesia in his left hand he experienced in March 1990? If it is not feasible to answer any of these questions, this should be so stated. The claims folder and a copy of this remand must be made available to the examining physician in conjunction with the examination so that he/she may review pertinent aspects of the appellant's medical history. 4. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action should be taken. 5. The RO should readjudicate the appellant's claims of entitlement to service connection for bilateral fallen arches and pes planus, as well as for left hand, wrist, and finger disabilities (other than radiculopathy). In the event that the claims are not resolved to the satisfaction of the appellant, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the veteran and his representative have been given the applicable time to submit additional argument, the case should be returned to the Board for further review. 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. G. H. SHUFELT Member, Board of Veterans' Appeals