Citation Nr: 0007038 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 93-16 858 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a cervical spine disability (other than left thoracic outlet syndrome (TOS)). 3. The propriety of the initial noncompensable rating for postoperative residuals of a right knee laceration with chondromalacia. 4. The propriety of the initial 20 percent rating for left TOS. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Associate Counsel INTRODUCTION The veteran served on active duty from June 1984 to August 1992. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 1992 rating decision which, in pertinent part, granted service connection and assigned a noncompensable rating for ulnar compression of the left (minor) wrist from August 6, 1992; granted service connection and assigned a noncompensable rating for postoperative residuals of a right knee laceration; and denied service connection for cervical spine and right ankle disabilities. The veteran gave testimony at a hearing on appeal before a Member of the Board at the RO on June 21, 1993. By decision of January 1994, the Board remanded this case to the RO for additional development. In an August 1995 rating decision, the RO, in pertinent part, changed the description of the service-connected "ulnar compression of the left wrist" to "C-8 radiculopathy," and granted an increased rating to 20 percent for that disorder from August 6, 1992. By decision of July 1996, the Board remanded the issues of service connection for cervical spine (other than C-8 radiculopathy) and right ankle disabilities, an increased evaluation for C-8 radiculopathy, and a compensable evaluation for postoperative residuals of a right knee laceration to the RO. In addition, the Board specifically instructed the RO to issue the veteran a Statement of the Case (SOC) regarding the issue of eligibility for vocational rehabilitation training under the provisions of Chapter 31, Title 38, U.S. Code. By rating action of November 1997, the RO again changed the description of the service-connected "C-8 radiculopathy" to "left TOS," and denied a rating in excess of 20 percent. The RO also expanded the grant of service connection for postoperative residuals of a right knee laceration to include chondromalacia, and denied a compensable rating. The issues of service connection for a right ankle disability and an increased rating for left TOS are the subject of the REMAND portion of this decision, below. FINDINGS OF FACT 1. The record contains no competent medical evidence linking any chronic disability of the cervical spine (other than left TOS) to military service or any incident thereof (to include trauma experienced therein), or to any service- connected disability, and the claim for service connection for such additional disability of the cervical spine is thus not plausible. 2. Since August 1992, the veteran's postoperative residuals of a right knee laceration with chondromalacia have been manifested by a painful scar with associated numbness, without objective evidence of any limitation of motion or function of the right knee. CONCLUSIONS OF LAW 1. The claim for service connection for a cervical spine disability (other than left TOS) is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The schedular criteria for an initial 10 percent rating for a painful scar as a postoperative residual of a right knee laceration with chondromalacia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261, 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Service Connection for a Cervical Spine Disability (Other Than Left TOS) The veteran has alleged that he has developed a cervical spine disorder (other than left TOS) as a result of the inservice injury he sustained to his neck. Under the applicable criteria, service connection may be granted for disability due to an injury or a disease that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Certain conditions, including degenerative joint disease/osteoarthritis, will be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period of time after service, which is one year for arthritis. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Regarding the veteran's appeal, the threshold question to be answered in this case is whether he has presented a well- grounded claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If he has not, the claim must fail, and there is no further duty to assist him in its development. Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been reaffirmed by the U.S. Court of Appeals for the Federal Circuit in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). That decision upheld the earlier decision of the U.S. Court of Appeals for Veterans Claims (Court) that it would be error for the Board to proceed to the merits of a claim that is not well-grounded. Epps v. Brown, 9 Vet. App. 341 (1996). See also Morton v. West, 12 Vet. App. 477, 480 (1999). The Court has also held that, in order to establish a well- grounded claim for service connection, there must be competent evidence of: (1) a current disability (a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus (that is, a link or connection) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third element. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). See Elkins v. West, 12 Vet. App. 209 (1999). "Although the claim need not be conclusive, the statute [38 U.S.C.A. § 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well-grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim for service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service, or to an already service-connected disability. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Montgomery v. Brown, 4 Vet. App. 343 (1993). Evidence submitted in support of a claim is presumed to be true for purpose of determining whether it is well-grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). Lay assertions of medical diagnosis or causation, however, do not constitute competent evidence sufficient to render a claim well- grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Evidence showing that a chronic condition subject to presumptive service connection, such as arthritis, became manifest to a compensable degree within a prescribed period after service (one year for arthritis) may satisfy the nexus requirement. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or within the presumptive period after service, and that he still has such condition. See also 38 C.F.R. § 3.303(d). However, such evidence must be medical evidence, unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well-grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable post-service presumptive period, provided that continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In the instant case, a review of the veteran's service medical records dated prior to 1991 reveals no complaints or findings indicative of a cervical spine problem. The records indicate that the veteran was involved in a motorcycle accident during service in September 1991, and that injuries sustained included a probable cervical ligament strain and possible C-8 radiculopathy. While a December 1991 record noted possible spur formation at C4-5 and a plus or minus kyphosis at C4-5, the impression on a subsequent December 1991 X-ray report was that the cervical spine was normal, except for straightening secondary to spasm or positioning. The impression on a December 1991 neurological examination included possible C-8 radiculopathy bilaterally, and incidental ulnar compression at the left wrist. A March 1992 Physical Evaluation Board report noted diagnoses of probable cervical ligament sprain, and possible C8 radiculopathy bilaterally. The records contain no examination report of the veteran prior to separation from service in August 1992. Post service, the veteran reported ongoing complaints of neck problems with some mild loss of feeling and touch sensation in the left hand, without definite neurological deficits noted on September 1992 VA examination. Based on this examination and the veteran's service medical records, the RO in October 1992 granted service connection for ulnar compression of the left wrist (claimed as possible C-8 radiculopathy with loss of feeling in the left hand). By this decision, the RO also denied service connection for cervical sprain, noting that this disorder was not found on VA examination. The veteran appealed, asserting that he had a disorder of the cervical spine separate from the service- connected left wrist ulnar compression (which service- connected disease entity was subsequently recharacterized by the RO as C-8 radiculopathy and left TOS). At the June 1993 Board hearing on appeal, the veteran's complaints included popping, grinding, and tightness on the right side of the neck, discomfort around the shoulder, and neurological problems in the left upper extremity. The Board remanded this issue to the RO in January 1994 in an effort to determine whether or not the veteran had a separate cervical spine disorder due to service. Private records from CIGNA Healthcare of Arizona dated from November 1993 through May 1994 show that the veteran was treated for ongoing complaints of neck pain and neurological symptoms in the left upper extremity. Subsequent medical records showed findings including well-preserved cervical vertebral bodies and intervertebral disc spaces, with no gross evidence of fractures or other bone pathology noted on VA X-rays of December 1993; residuals of an injury to the cervical spine with chronic cervical strain on August 1994 VA neurological examination, with a normal cervical spine by X- ray; cervical arthropathy productive of radiculopathy of the 8th cervical nerve root on the left side with muscular weakness on August 1994 VA orthopedic examination; residuals of cervical strain with evidence for C-8 radiculopathy based on decreased strength of C-8 innervated hand muscles on VA neurological examination of April 1995; and left C-8 radiculopathy possibly caused by a traction injury on the nerve root as a result of an inservice motorcycle accident, with no significant cervical disc disease on VA neurological examination of June 1995. On VA orthopedic examination of March 1997, there was no tenderness to palpation about the veteran's neck or shoulder girdle regions, and no muscle spasm. The examiner commented that, while the veteran had subjective symptomatology in the neck and hands, physical examination of the cervical spine was essentially within normal limits. There was no evidence on any of the radiographic tests of any spur at C4-5; similarly, magnetic resonance imaging (MRI) was reported to be completely normal. The physician concluded that the veteran had subjective symptomatology, but physical examination and thorough objective tests including MRI and several electrical studies showed no objective abnormalities. X-rays of the cervical spine showed a straightening to minimal reversal of the cervical lordosis from C-2 to C-7. Vertebral body heights, disk space heights, pedicles, and intermediate and posterior elements, were intact, without fracture, destructive lesion, or instability. On VA neurological examination of April 1997, the veteran's cervical spine was tender at the C-5 and C-6 processes. While range of motion was found to be normal, rotation to the right with extension reportedly produced some tingling pain radiating from the cervical area to the right temporal, probably the result of occipital nerve stretch. The examiner concluded that the veteran showed no definite evidence of cervical disease, and that he might have a TOS of a non- neurogenic nature, without any atrophy of the thenar eminence. Subsequent medical assessments have included cervical trapezius myositis in April, June, and July 1997; TOS in September 1997; C-7 ruptured disc with secondary TOS in October 1997; possible herniated nucleus pulposus at C-7 in November 1997; mild degenerative change at C3-C4 with no cord flattening or compression or asymmetric disc protrusion in December 1997 (VA MRI of the cervical spine); and possible TOS in May 1998 (vascular clinic report and follow-up records through June 1998). After review of all the medical evidence on file, the Board finds that the veteran has a service-connected cervical disorder, most recently classified as TOS, which produces pain and numbness in the left upper extremity. With respect to his claim that he has a separate disorder of the cervical spine, the Board notes the recent diagnoses of disc problems at C-7 and degenerative changes at C3-C4. Hence, there is sufficient evidence of "current disability" to satisfy the first requirement of a well-grounded claim, and this point is not in dispute. Additionally, the Board notes that a plausible argument could be made that the second requirement of a well-grounded claim, i.e., evidence of an in-service injury, has been satisfied by the service medical records showing treatment for neck pain following the 1991 motorcycle accident. However, the Board finds that the third element required to show a well-grounded claim for service connection for a separate disorder of the cervical spine has not been met, inasmuch as the record contains no competent medical evidence of a nexus between any current cervical spine disability (other than the already-service-connected TOS) and the in-service neck injury. Thus, the Board finds that the veteran has not submitted a well-grounded claim for service connection for additional disability of the cervical spine, and the appeal must be denied. The Board notes the service medical records showing the veteran's inservice complaints including cervical strain and possible C-8 radiculopathy following the 1991 motorcycle accident. Aside from radiculopathy, which has been included as part and parcel of the service-connected TOS disease entity, the record does not show the presence of a separate, chronic cervical spine disorder until years after separation from service. Specifically, the Board notes that inservice X-rays revealed a normal cervical spine in December 1991. Additionally, post-service medical records from the years immediately after separation from service failed to document a separate disorder of the cervical spine. In this regard, the Board points to VA X-rays of December 1993 which indicated that the cervical vertebral bodies and intervertebral disc spaces were well-preserved, with no gross evidence of fractures or other bone pathology; subsequent X- rays as late as August 1994 which showed a normal cervical spine; and the reports of VA examinations performed in March and April 1997 which failed to identify any separate disorder involving the cervical spine. The earliest findings of disc problems and degenerative changes of the cervical spine were not shown by objective testing until the last few months of 1997. While the veteran has had recent assessments of disc problems and degenerative changes, there is no medical evidence in the record linking any of these current cervical disorders to service or any incident thereof, such as trauma from the motorcycle accident, or to the service-connected TOS. Although the veteran has contended that these newly-diagnosed disorders of the cervical spine are due to service, he, as a layman, does not have the medical expertise and training to provide a medical diagnosis or to give a competent opinion as to medical etiology, as a result of which the Board accords no probative value to his opinions in this regard. See Espiritu. The Board emphasizes that a well-grounded claim for service connection requires medical evidence, and not just allegations. See Tirpak, 2 Vet. App. at 610; Grottveit, 5 Vet. App. at 93. The record contains no such evidence in this case. Since the veteran has not satisfied his initial burden of submitting evidence sufficient to show that his claim for service connection for a cervical spine disorder (other than left TOS) is well-grounded, the VA is under no "duty to assist" him in developing the evidence pertinent to his claim. 38 U.S.C.A. § 5107(a); See Epps. Moreover, the Board is aware of no circumstances in this case that would put VA on notice that any additional relevant evidence may exist that, if obtained, would make his claim well-grounded. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). B. The Propriety of the Initial Noncompensable Rating for Postoperative Residuals of a Right Knee Laceration with Chondromalacia. At the outset, the Board notes that the veteran's claim for a higher rating is "well-grounded," in that it is at least "plausible...or capable of substantiation." See 38 U.S.C.A. § 5107(a); see also Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The Board further notes that, as a result of remanding the case to the RO in 1994 and 1996, all evidence relevant to this claim has been fully developed, and the VA's "duty to assist" the veteran has been satisfied. See Murphy. Disability evaluations are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When making determinations as to the appropriate rating to be assigned, the VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). His current level of disability, however, is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Before proceeding with analysis of the veteran's claim, the Board finds that discussion of the Court's holding in Fenderson v. West, 12 Vet. App. 119 (1999), is warranted. In that case, the Court emphasized the distinction between a new claim for an increased rating for a service-connected disability, and a case in which the veteran expresses dissatisfaction with the assignment of an initial rating for a disability when service connection has just been granted. In the former situation, the Court held that the Francisco rule applies, and that the current level of disability is of primary importance when assessing the increased rating claim. In the latter situation, however - where, as here, the veteran has expressed dissatisfaction with the assignment of his initial disability rating - the Francisco rule does not apply; rather, the VA must assess the level of disability from the date of the veteran's initial application for service connection, and determine whether the level of disability warranted assignment of different disability ratings at different times over the life of the claim - a practice known as "staged rating." In this case, the RO has issued an SOC and Supplemental SOCs (SSOCs) that do not explicitly reflect consideration of the propriety of the initial rating, or include discussion of whether "staged ratings" would be appropriate in this case. However, the Board finds it unnecessary to remand this claim to the RO for issuance of an SOC on such matter, inasmuch as the October 1992 rating action which initially granted service connection was based on consideration of all of the evidence then of record, and all applicable rating criteria at that time, which information was set forth in the January 1993 SOC, and the RO subsequently issued SSOCs in August 1995, November 1997, and August 1998 which reflect consideration under the applicable rating criteria of all additional evidence received from 1993 to the present time. Thus, the Board finds that the RO effectively considered the propriety of its initial evaluations under the applicable rating criteria in conjunction with the submission of additional evidence during the pendency of the appeal. The Board considers this to be tantamount to a determination regarding the propriety of "staged ratings," and thus finds that remanding this case to the RO for further development on this matter would not produce a markedly different analysis on the RO's part, or give rise to markedly different arguments on the veteran's part. Under the circumstances, the Board will proceed with adjudication of the veteran's claim on the merits. The Board also notes that, where the disability at issue is of a musculoskeletal nature or origin, the VA may, in addition to applying the regular schedular criteria, consider granting a higher rating with consideration of functional impairment caused by pain, limited or excess movement, weakness, excess fatigability, or incoordination, assuming these factors are not already contemplated by the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). In the instant case, the service medical records reveal that the injuries the veteran incurred as a result of a motorcycle accident in September 1991 included a laceration to the right knee that was severe enough to require exploration, irrigation and debridement, and surgical closure. A March 1992 Physical Evaluation Board report noted a diagnosis of right knee pain. The record contains no separation examination report. Post-service, on VA examination of September 1992, the findings including well-healed laceration scars on the right knee which did not inhibit the veteran's full range of motion of that joint. In October 1992, the RO granted service connection for postoperative residuals of a right knee laceration, and assigned a noncompensable rating from August 6, 1992 under 38 C.F.R. Part 4, Diagnostic Code 7805. Since the initial grant of service connection, the veteran has asserted that the right knee disorder warrants a compensable rating. At the June 1993 Board hearing on appeal, the veteran testified that the right knee laceration resulted in pain, weakness, popping, grinding, and giving-way of the knee. Additionally, he stated that the there was no feeling on one side of the knee. A November 1993 record from CIGNA Healthcare of Arizona revealed that the veteran reported subjective complaints of weakness and an area of numbness on the right knee. Objective findings included full range of motion of both knees and gross stability of the joints, with a little bit of patellar laxity noted bilaterally. On VA examination of August 1994, there was a well-healed scar along the anteromedial aspect of the right knee, which had a normal range of motion, with crepitus and pain on both flexion and extension. The impression was chondromalacia of both knees. X-rays revealed no joint deformity, no signs of instability, normal mineralization, and no visible abnormalities in the femoral trochlear groove. On VA examination of June 1995, the examiner noted that the veteran had numbness in the scars on his knee, and he opined that the numbness was secondary to laceration of the small sensory skin nerves in the area of the wound. On VA examination of July 1995, the veteran reported a popping and grinding sensation in the right knee along with swelling, pain with squatting, and occasional giving-way while negotiating steps. Current examination of the right knee revealed no effusion. There were an anteromedial traumatic scar, stable collateral cruciate ligaments, negative Drawer, McMurray, and Lachman tests, and positive chondromalacia on the right. Range of motion of the right knee was from 0 to 140 degrees. X-rays of the right knee revealed intact osseous structures, no evidence of fracture or dislocation, smooth and adequately maintained articular surfaces in the joint spaces, and unremarkable soft tissue densities. The impression was right knee chondromalacia patellae (patellofemoral syndrome). On VA examination of March 1997, the veteran reported complaints of a limp and pain of the right lower extremity that was not seen daily, swelling about once a week, popping in the right knee, pain, a numb area at the top of the right knee cap region, and an occasional feeling of giving-way. Current examination revealed healed incisions from surgery and lacerations, a negative McMurray test, stable cruciate and collateral ligaments, normal gait, no tenderness to palpation about the right knee, no effusion, and no pain on passive motion of the patella There was slight rubbing palpable below the patella on active flexion and extension of the knee, without any grinding or crepitation. There was a small area of numbness about the anterior patellar region on the right, measuring about 1 to 1.5 inch in the widest diameter. Active range of motion of the right knee was from 0 degrees extension to 130-135 degrees flexion. The examiner concluded that, aside from the healed lacerations and the small area of numbness, the physical examination of the right knee was essentially normal. July 1998 VA X-rays of the veteran's right knee joint, tibia, and fibula demonstrated slightly prominent tibial spines. No evidence of fracture or other localizing signs of bone or soft tissue abnormality were observed. The radiologist's impression was that the right knee joint, tibia and fibula appeared to be intact. In written argument dated in August 1999, the veteran's representative reported that the veteran's right knee scar was painful and tender, and that the normal act of walking caused the pant leg to rub on the scar, resulting in pain and discomfort. As noted above, the veteran's service-connected status postoperative laceration of the right knee is currently assigned a noncompensable rating under Diagnostic Code 7805. Under this provision, a scar may be rated based on the limitation of function of the body part affected. Review of the entire record reveals that the veteran has been diagnosed with right knee chondromalacia, and he has reported problems such as popping and grinding, pain on motion, and giving-way, but there is no objective evidence indicating that his service-connected postoperative residuals of a right knee laceration have ever caused instability, arthritic changes, or limitation of motion or function of that joint. To the contrary, objective findings on examinations since service have essentially been normal except for findings of chondromalacia, a painful scar, and an area of numbness near the laceration scar. Since the veteran's postoperative residuals of a right knee laceration have not been shown to limit the function of the veteran's right knee, the Board finds that a compensable rating under Diagnostic Code 7805 is not warranted at any time since service connection was granted in 1992. The Board notes, however, that the veteran's service- connected postoperative residuals of a right knee laceration may also be rated under Diagnostic Code 7804. This provision allows for a 10 percent disability rating when the veteran's scar is superficial, tender, and painful on objective demonstration. Review of the record shows that the veteran has consistently reported pain and numbness at the location of his laceration since the original rating action which granted service connection in October 1992. As the objective evidence on file documents complaints of painful scarring about the right knee, the Board finds that the evidence supports the grant of a 10 percent rating for a painful scar as a postoperative residual of a right knee laceration under Diagnostic Code 7804, and the appeal is granted to this extent. The Board has also considered rating the veteran's service- connected right knee disorder under provisions that pertain to musculoskeletal problems, orthopedic impairment, and/or functional limitation of the right knee (as described in DeLuca). Since his service-connected disorder has not been shown to produce any of these problems, consideration of his claim under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a and Diagnostic Codes 5260 and 5261 would not entitle him to a rating in excess of 10 percent. In the absence of more significant clinical findings, to include objective evidence of greater functional loss of the right knee due to pain, the Board finds no basis for assignment of a rating in excess of 10 percent under any potentially applicable Diagnostic Code. Since a 10 percent rating represents the maximum percentage disability rating available for a scar under Diagnostic Code 7804 since the grant of service connection in 1992, there is no basis for "staged rating" pursuant to Fenderson. As the degree of severity of the veteran's painful scar as a residual of a right knee laceration is most commensurate with a 10 percent rating, this is the rating that must be assigned. See 38 C.F.R. § 4.7. ORDER Service connection for a cervical spine disability (other than left TOS) is denied. An initial 10 percent rating for a painful scar as a postoperative residual of a right knee laceration with chondromalacia is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND A. Service Connection for a Right Ankle Disability. Service medical records document treatment for right ankle injuries in 1984 and in 1986, and that additional right ankle problems were noted in December 1991. The veteran has asserted that he has a disorder of the right ankle due to these inservice sprains in the 1980's and additional injury from a motorcycle crash in 1991. The Board notes that VA examinations since service have reported inconsistent findings regarding the veteran's right ankle. In September 1992, a VA examiner reported that the veteran had a right ankle sprain in September 1986 with residual popping and grinding, but went on to say that he had full range of motion with no significant residual problems. On VA examination in August 1994, findings regarding the right ankle included pain and crepitus on flexion and extension, and the impression was residuals of right ankle sprain. While these examinations appear to indicate that the veteran had some problems with his right ankle that could possibly be related to his inservice ankle injury, the conclusion on the most recent VA examination in March 1997 was that the right ankle was within normal limits. Closer appellate scrutiny of the March 1997 VA examination report discloses that the medical findings included range of motion test results showing that the veteran could only move his right ankle to 5 degrees on plantar flexion and to 35 degrees on dorsiflexion. Since full range of motion of the ankle is to 20 degrees on plantar flexion and to 45 degrees on dorsiflexion (See 38 C.F.R. § 4.71, Plate II (1999)), it appears that the objective findings in March 1997 depict limitation of right ankle motion reflecting some ankle abnormality. With this conflicting medical evidence on file, the Board is unable to ascertain whether or not the veteran currently has right ankle disability as residuals of his inservice ankle injuries. The Board thus finds that this case must be remanded to the RO to afford the veteran a VA examination to reconcile the conflicting medical evidence and to furnish a medical opinion as to the etiology of any current right ankle disorder. The Court has stated that the VA is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Further medical evaluation of the veteran, one which takes into account the records of the veteran's prior medical history, is required in order to clarify the etiology of any current right ankle disability before an appellate decision can be made. See Pond v. West, 12 Vet. App. 341, 346 (1999). B. The Propriety of the Initial 20 Percent Rating for Left TOS. At the outset, the Board notes that the veteran's claim for a higher rating is "well-grounded," meaning that the claim is at least "plausible...or capable of substantiation." See 38 U.S.C.A. § 5107(a); see also Proscelle, supra. As will be explained below, the Board finds that all evidence that is relevant to this claim has not been fully developed, and that the VA's "duty to assist" is still not satisfied. See Murphy, supra. Historically, the Board notes that the veteran's 1991 inservice motorcycle accident resulted in injuries including a probable cervical ligament strain, possible C-8 radiculopathy bilaterally, and incidental ulnar compression at the left (minor) wrist. Following a September 1992 VA examination that found a mild loss of feeling and touch sensation in the left hand, the RO in October 1992 granted service connection for ulnar compression of the left wrist (claimed as possible C-8 radiculopathy with loss of feeling in the left hand). The disability was rated under Diagnostic Code 8516 (for incomplete paralysis of the ulnar nerve) and a noncompensable evaluation was assigned from August 6, 1992. At the June 1993 Board hearing on appeal, the veteran testified that his symptoms included popping, grinding, and tightness on the right side of the neck when he looked to the left. He further noted that he experienced a neck cramp occasionally, and that he sometimes had tingling, numbness, and a loss of touch sensation in the fingers, and cramping in the hand. The veteran also indicated a tingling sensation from the left shoulder down to the hand, and that he had areas of pain and discomfort from the neck to the left shoulder, and from the left wrist to the fingers. Private records from CIGNA Healthcare of Arizona reveal that in early 1994 the veteran had treatment, including physical therapy, for neck pain as well as for pain and numbness in the hand. The impressions included carpal tunnel syndrome (CTS) and neck pain with radiculopathy. On VA examination of August 1994, the veteran demonstrated the physical signs of cervical arthropathy which produced a radiculopathy of the 8th cervical root on the left side, with muscular weakness consisting of an inability to adduct, and some atrophy of the hypothenar eminence, as well as sensory complaints including tingling in the fingers. X-rays were negative for any cervical spine disorder. The examiner noted that the disability due to this disorder was mild to moderate. On VA examination of April 1995, the examiner noted that the prior diagnosis of arthropathy was not supported by X-rays. Current findings related to the cervical spine included limited range of motion that was productive of pain in the neck, as well as radicular pains to the left shoulder and arm, mild paravertebral muscle spasm, and tenderness to palpation. The veteran's strength and reflexes were intact throughout, except for some C-8 innervated muscles in the hand on the left. The impression was residuals of cervical strain, with evidence for C-8 radiculopathy based on decreased strength of C-8 innervated hand muscles. Neuromuscular electrodiagnostic studies performed in June 1995 found that the veteran had normal left median and ulnar nerve conduction velocities and wrist latencies, and normal left radial sensory latency, and the impression was that this was essentially normal electromyography, with no evidence of denervation or myopathy. On VA examination of June 1995, the veteran's symptoms included tingling in the hands, weakness in the left hand, and radicular symptoms in the left shoulder. The examiner concluded that the veteran had residuals of a C-8 radiculopathy which was demonstrated by some sensory findings in the hand, some weakness in the left hand, and polyphasics in the first dorsal interosseous, the abductor pollicis brevis, and the abductor digiti minimi. The examiner noted that, while MRI studies of the cervical spine showed no significant disc disease, it was possible that the C-8 injury could have been a traction injury on the nerve root which was reportedly very common in motorcycle accidents, as there tended to be traction on the shoulder in one way or another if someone is sliding across the pavement. On VA examination of July 1995, the impressions were left hand neuropathy by history, with no limitation of motion of the left wrist found on current examination. In an attempt to more accurately determine the nature and degree of severity of the veteran's service-connected disability manifested by symptoms of neck pain, left shoulder problems, and left hand neuropathy, the RO in August 1995 changed the description of the veteran's service-connected "ulnar compression of the left wrist" to "C-8 radiculopathy." In so doing, the disability was rated 20 percent disabling from August 6, 1992, the date of the initial grant of service connection under Diagnostic Code 8512 (for incomplete paralysis of the lower radicular group). By decision of July 1996, the Board remanded this issue to the RO and specifically requested that a VA examiner identify which nerve(s) was involved in the veteran's left wrist and hand problems, and state for the record whether there was incomplete paralysis of the involved nerve(s), and whether any incomplete paralysis was mild, moderate, or severe. Since the last Board Remand Order in 1996, the veteran has been afforded new VA examinations. In March 1997, a VA examiner noted that there was no tenderness to palpation about the neck or shoulder girdle regions, and no muscle spasm. Grip was normal in both hands, and sensory examination of the pin wheel was normal in the upper extremities. Deep tendon reflexes were active and symmetric. Measured active range of motion of the cervical spine was to 45 degrees on flexion, 70 degrees each on extension and on right/left lateral rotation, and 45 degrees on right/left lateral flexion. The examiner reported that, while the veteran had subjective symptomatology in the neck and hands, physical examination of the cervical spine was essentially within normal limits. Objective tests including MRI and several other electrical studies showed no objective abnormalities. On VA neurological examination of April 1997, the veteran reported numbness and tingling in the fingers of both hands which was not constant or related to position or effort. He also complained of some weakness bilaterally in both arms, but no loss of muscle bulk. He gave a history of radicular pain from the neck down the arms. On examination, grip strength was 41 kilos on the left and 40 kilos on the right. Stretch reflexes were quite brisk and graded 3+ symmetrically. No sensory loss was encountered in the hands or fingers. Adson's maneuver bilaterally in diverse positions with the arms extended and the neck backward produced paresthesias similar to the veteran's complaints after about 30 seconds. Range of motion of the cervical spine was normal actively and passively. Rotation to the right with extension produced some tingling pain radiating from the cervical area to the right temporal, probably the result of occipital nerve stretch. In summary, the veteran showed no definite evidence of cervical disease, but it was felt that he might have a TOS of non-neurogenic nature, although there was no atrophy of the thenar eminences. Confirmation of this possibility awaited nerve conduction studies. The final diagnosis included possible TOS bilaterally. Comments and impressions on neuromuscular testing of the upper extremities in January and April 1997 included normal bilateral median and ulnar nerve conduction velocities and wrist latencies, and normal bilateral radial sensory distal latencies, and the conclusion was normal electromyography. A subsequent April 1997 report of vascular lab studies performed for TOS indicated that the veteran had diminution of pulses when he was positioned, as compared to the baseline. It was noted that the symptoms were somewhat suggestive of bilateral TOS. Follow-up VA outpatient treatment records of April 1997 noted the veteran's complaints of severe neck pain and spasms, as well as numbness and paresthesias of both arms. The assessment included cervical trapezius myositis and muscle contraction cephalalgia. A July 1997 physical therapy record showed a diagnosis of cervical trapezius myositis. Suspected TOS was diagnosed in records dated from August to September 1997. In light of the new findings since the most recent VA examinations, the RO in November 1997 again changed the description of the "C-8 radiculopathy" to "TOS," with the 20 percent rating remaining in effect. After review of all the medical evidence on file, the Board finds that the veteran's service-connected disorder has been variously diagnosed as ulnar compression in the left wrist, C-8 radiculopathy, carpal tunnel syndrome, TOS, cervical trapezius myositis, and muscle contraction cephalalgia. While the diagnosis of the veteran's disorder has changed over the years, the disability and its symptoms have remained relatively constant. The veteran's service-connected disability has essentially been manifested by symptomatology including pain and tightness in the neck, pain radiating down the left shoulder, and pain, weakness, tingling and numbness in the left hand that causes a loss of feeling and a reduced range of motion in the fingers of the left hand. This symptomatology, currently identified as TOS, is now rated as 20 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8512 (1999) (as analogous to mild paralysis of the lower radicular group of the peripheral nerves in the minor extremity). Under this provision, severe incomplete paralysis of the lower radicular group of peripheral nerves will be rated as 40 percent disabling in the minor upper extremity. Moderate incomplete paralysis will be rated as 30 percent disabling in the minor upper extremity. Mild incomplete paralysis of either upper extremity will be rated as 20 percent disabling. In attempting to determine whether a rating in excess of 20 percent is warranted, the Board notes that the medical evidence of record does not include any characterization of the degree of severity of the veteran's disability. While the July 1996 Board Remand Order specifically requested a medical opinion as to whether the veteran's symptoms were mild, moderate, or severe, no such medical comments were made on subsequent medical examinations performed in April 1997. As such, the Board finds that a new VA examination is necessary in order to provide the VA with medical evidence that will allow for proper rating of the veteran's disorder. The Board notes that, at the time of the last Board Remand Order, the veteran's disorder was thought to be "C-8 radiculopathy" resulting in a problem with a nerve in the veteran's hand. Neuromuscular electrodiagnostic tests performed pursuant to the Remand Order, however, disclosed that the radial, ulnar, and medial nerves were essentially normal. While the veteran's disorder is currently identified as "TOS," it appears that his symptoms may most accurately be rated analogous to Diagnostic Code 8512. In order to so rate the service-connected disability, the Board finds that additional medical assessment of the degree of severity of the veteran's disorder is necessary prior to an appellate decision in this case. The Board finds that the RO should return the claims folder to the April 1997 VA examiner, if available, for a new examination and a supplemental opinion consistent with the Board's comments, above. If that examiner is unavailable, the veteran should be examined by another VA neurologist, who should furnish answers to the questions specifically posed by the Board in indented paragraph 3, pages 11 and 12, of the July 26, 1996 Board Remand Order, with consideration given to the points raised herein. In addition, the examiner should make an assessment of the current degree of severity of the veteran's service-connected TOS. The Court has specifically mandated that a Remand Order by the Board confers on the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the Remand Order. See Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the Remand Orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Accordingly, this case is REMANDED to the RO for the following action: 1. After obtaining authorization from the veteran with respect to non-VA medical records, the RO should obtain any relevant outstanding VA and non-VA treatment records pertaining to his right ankle and to the symptoms of his service-connected disorder currently identified as TOS. The aid of the veteran and his representative in securing such records should be enlisted, as needed. If any such records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims folder. 2. The RO should afford the veteran a VA orthopedic examination to determine the nature, degree of severity, and etiology of all orthopedic disorders affecting the right ankle. It is imperative that the physician designated to examine the veteran reviews the evidence in his claims folder, including findings noted on prior VA examinations, and that he be given a complete copy of this Remand Order. All necessary tests and clinical studies should be accomplished, and all clinical findings should be reported in detail. The examiner is further requested to review the service medical records and all pertinent post-service medical records, and render an opinion for the record as to whether it is at least as likely as not that any currently- diagnosed right ankle disability is etiologically related to the right ankle complaints and findings noted in service. In his examination report, the physician should set forth the complete rationale underlying any conclusions drawn and opinions expressed, to include, as appropriate, citation to specific evidence in the record. 3. The RO should afford the veteran a VA neurological examination by the same physician who examined him in April 1997, if available, to determine the current degree of severity of his service-connected TOS. It is imperative that the physician who is designated to examine the veteran review the evidence in his claims folder, including a complete copy of this Remand Order and a copy of pages 11 and 12 of the Board's July 26, 1996 Remand Order, and address the points raised herein, to include furnishing answers to the questions posed by the Board in indented paragraph 3 on pages 11 and 12 of the July 26, 1996 Remand Order. To the extent possible, the examiner should review the applicable rating criteria provided above and discuss the veteran's symptomatology in analogous terms, if applicable. The report of the examination should reflect consideration of the veteran's pertinent medical history. All indicated tests must be completed and the findings reported in detail. The examiner must set forth the complete rationale underlying any conclusions drawn and comments and opinions expressed, and should, if necessary, cite to specific evidence in the record. 4. Thereafter, the RO must review the above examination reports to determine if they are fully in compliance with this Remand Order. If deficient in any manner, they should be returned, along with the claims folder, for immediate corrective action. See 38 C.F.R. § 4.2. 5. After completion of the above development and undertaking any additional development deemed warranted by the record, the RO should adjudicate the veteran's claim for service connection for a right ankle disability and the issue of the propriety of the initial 20 percent rating for left TOS on the basis of all pertinent evidence of record, and all applicable laws, regulations, and Court case law. The RO should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that are noted in this Remand Order. 6. If the benefits sought by the veteran continue to be denied, he and his representative must be furnished an appropriate SSOC and given an opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. 7. The RO should issue the veteran an SOC pursuant to 38 U.S.C.A. § 7105 (West 1991) with respect to the issue of whether the veteran is eligible for vocational rehabilitation training under the provisions of Chapter 31, Title 38, U.S. Code, and afford him an opportunity to file a Substantive Appeal. The purpose of this REMAND is to ensure due process and to accomplish additional adjudication, and the Board intimates no opinion as to the ultimate disposition of the veteran's appeals. The veteran need take no action until otherwise notified; he may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court 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. THOMAS A. PLUTA Member, Board of Veterans' Appeals