Citation Nr: 0001350 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 94-18 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to an increased evaluation for chronic lumbar syndrome, currently evaluated as 40 percent disabling. 3. Entitlement to an increased evaluation for a whiplash injury of the cervical spine with possible radiculopathy to the right arm, currently evaluated as 10 percent disabling. 4. Entitlement to an increased evaluation for status post right nephrectomy, currently evaluated as 30 percent disabling. 5. Entitlement to a compensable evaluation for status post hemorrhoidectomy. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from March 1975 to May 1993. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a September 1993 rating decision of the Montgomery, Alabama Regional Office (hereinafter "the RO") which, in pertinent part, denied service connection for migraine headaches. Service connection was granted for chronic lumbar strain with a 30 percent disability evaluation and for a whiplash injury of the cervical spine with possible radiculopathy to the right arm with a noncompensable disability evaluation. Service connection was also granted for status post right nephrectomy with a 10 percent disability evaluation and for status post hemorrhoidectomy with a noncompensable disability evaluation. In October 1997, the Board remanded this appeal to the RO to obtain private, military, and/or Department of Veterans Affairs (hereinafter "VA") treatment records and to afford the veteran VA examinations. A June 1999 rating decision, in pertinent part increased the disability evaluation assigned for the veteran's service-connected chronic lumbar syndrome to 40 percent effective June 1, 1993. The disability evaluation assigned for the veteran's service-connected whiplash injury of the cervical spine with possible radiculopathy to the right arm was increased to 10 percent effective June 1, 1993. The veteran has been represented throughout this appeal by the Alabama Department of Veterans Affairs. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's lumbar spine disorder is productive of no more than severe intervertebral disc syndrome with severe limitation of motion. 3. The veteran's cervical spine disorder has been reasonably shown to be productive of moderate limitation of motion, but no more. 4. The veteran's status post right nephrectomy is productive of no more than albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling. 5. The veteran's hemorrhoid disorder is productive of no more than mild or moderate external or internal hemorrhoids. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 40 percent for lumbar syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. Part 4, including §§ 4.3, 4.7, 4.40, 4.45, 4.59 and Diagnostic Codes 5286, 5289, 5292, 5295 (1999). 2. The schedular criteria for a 20 percent evaluation for a whiplash injury of the cervical spine with possible radiculopathy to the right arm, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. Part 4, including §§ 4.3, 4.7, 4.40, 4.45, 4.59 and Diagnostic Codes 5286, 5287, 5290, 5293 (1999). 3. The schedular criteria for an evaluation in excess of 30 percent for status post right nephrectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. Part 4, including §§ 4.3, 4.7, 4.115(a) and Diagnostic Codes 7101, 7500 (1999). 4. The schedular criteria for a compensable evaluation for status post hemorrhoidectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. Part 4, including §§ 4.3, 4.7 and Diagnostic Codes 7336 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), and if so, whether the VA has properly assisted him in the development of his claims. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claims for increased evaluations for his service- connected chronic lumbar syndrome, whiplash injury of the cervical spine with possible radiculopathy to the right arm, status post right nephrectomy and status post hemorrhoidectomy are plausible and that all relevant facts have been properly developed. Accordingly, an additional remand, in order to allow for further development of the record is not appropriate. I. Increased Evaluation for Chronic Lumbar Syndrome The Board notes that according to a recent decision of the United States Court of Appeals for Veterans Claims (hereinafter "the Court"), because this appeal ensues from the veteran's disagreement with the rating assigned in connection with his original claim, the potential for the assignment of separate, or "staged," ratings for separate periods of time, based on the facts found, must be considered. Fenderson v. West, 12 Vet.App. 119 (1999). In this case, the RO has not assigned separate staged ratings for the disability at issue. The Board observes that the veteran has not been prejudiced by the RO's referring to his claim, as to this matter, as an "increased [evaluation]" although the appeal has been developed from his original claim. In reaching the determination below, the Board has considered whether staged ratings should be assigned. The Board concludes that the disability has not significantly changed and a uniform evaluation is appropriate in this case. A. Historical Review The veteran's service medical records indicate that he was seen in February 1976 with complaints including low back pain. No assessment was given. A February 1984 entry noted that the veteran complained of right leg pain. The assessment was probable sciatica. An April 1985 entry reported that the veteran complained of back pain for one day where he could not stand it. The assessment was musculoskeletal pain. A June 1986 entry indicated an assessment of low back syndrome and a February 1993 entry related an assessment of lumbar sprain. The December 1992 separation examination indicated that the veteran's spine and other musculoskeletal systems were normal. The veteran underwent a VA general medical examination in June 1993. The impression included history of low back pain. The veteran also underwent a VA spine examination in June 1993. The veteran reported that he had a chronic-type low back pain which varied in severity. It was noted that aggravating factors included prolonged periods of standing as well as bending, lifting or pulling. The veteran described pain radiation out of the back and into the left leg and down to the foot. He also described episodes of the tingling of the left leg and foot. The examiner noted that there was no spasm or tenderness. As to range of motion of the lumbar spine, the veteran had 75 degrees of flexion and 20 degrees of extension. The examiner noted that the veteran had complaints of pain on motion of the back. Reflexes and sensation were intact in the lower extremities. The impression included chronic lumbar syndrome with history of lifting injury. A June 1993 radiological report, as to the lumbar spine, indicated that there was no significant abnormality. In September 1993, service connection was granted for chronic lumbar syndrome. A 10 percent disability evaluation was assigned effective June 1, 1993. B. Increased Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). A 40 percent evaluation is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293 (1999). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4, Diagnostic Code 5003 (1999). Severe limitation of motion of the lumbar spine warrants a 40 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5292 (1999). Ankylosis of the lumbar spine at a favorable angle warrants a 10 percent evaluation. A 50 percent evaluation requires fixation at an unfavorable angle. 38 C.F.R. Part 4, Diagnostic Code 5289 (1999). Complete bony fixation of the spine (ankylosis) at a favorable angle warrants a 60 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5286 (1999). A 40 percent evaluation is warranted for severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. This is the maximum evaluation assignable under this code. 38 C.F.R. Part 4, Diagnostic Code 5295 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Treatment records from the Fox Army Community Hospital dated from February 1994 to June 1994 indicated that the veteran was treated for several disorders. A February 1994 entry noted that the veteran complained of back pain. The assessment was lower back pain with lower extremity possible radiculopathy. A February 1994 report of a computerized tomography scan of the lumbar spine, indicated conclusions of no evidence of a herniated disc, but a bulging disc at L5-S1. The veteran underwent a VA spine examination in July 1994. His complaints included pain in the lumbosacral region of the back. The examiner reported that there were no postural abnormalities or fixed deformities of the back. The examiner indicated that the musculature of the veteran's back was normal. As to range of motion, forward flexion was 90 degrees, backward extension was 35 degrees, left lateral flexion was 40 degrees, right lateral flexion was 40 degrees and rotation to the right and left was 35 degrees. The examiner indicated that pain was experienced in all ranges of motion tested. The diagnosis was lumbosacral strain, chronic. VA treatment records dated from July 1994 to December 1995 referred to treatment for other disorders. Treatment records from the Fox Army Community Hospital dated from August 1995 to September 1996 referred to continued treatment. The veteran underwent a VA spine examination in March 1998. He reported that he had pain in his lumbar spine. The examiner reported that the veteran's motion stopped when the pain began. There were no postural abnormalities or fixed deformities and the musculature of the back was noted to be good. As to range of motion of the lumbar spine, the examiner indicated that forward flexion was 28 degrees, backward extension was 20 degrees, flexion to the right was 36 degrees and flexion to the left was 18 degrees. The diagnoses included degenerative joint disease of the lumbosacral spine with loss of function due to pain. A June 1999 rating decision increased the disability evaluation assigned for the veteran's service-connected chronic lumbar syndrome to 40 percent effective June 1, 1993. The 40 percent disability evaluation has remained in effect. The Board has made a careful longitudinal review of the record. It is observed that the clinical and other probative evidence of record fails to indicate that the veteran suffers from symptomatology productive of more than severe intervertebral disc syndrome with recurring attacks and intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293 (1999). The most recent March 1998 VA spine examination report noted that the veteran reported that he had pain in the lumbar spine. The examiner indicated that there were no postural abnormalities or fixed deformities and that the musculature of the veteran's back was good. The diagnoses included degenerative joint disease of the lumbosacral spine with loss of function due to pain. Additionally, the Board notes that a July 1994 VA spine examination report noted that the veteran complained of pain in the lumbosacral region of the back. There was no postural abnormalities or fixed deformities of the back. The examiner indicated that the musculature of the veteran's back was normal and that pain was experienced in all ranges of motion tested. The diagnosis, at that time, was lumbosacral strain, chronic. Further, the Board notes that a June 1993 spine examination report noted that the veteran described pain radiation out of the back and into the left leg and down to the foot. He also described episodes of tingling of the left leg and foot. The examiner noted that there was no spasm or tenderness and that reflexes and sensation were intact in the lower extremities. The impression included chronic lumbar syndrome with history of lifting injury. Therefore, the Board notes that the medical evidence clearly fails to indicate what could reasonably be considered to be pronounced intervertebral disc syndrome 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 as required for a 60 percent evaluation pursuant to the appropriate schedular criteria noted above. Symptomatology such as demonstrable muscle spasm and absent ankle jerk are simply not shown. The Board also observes that the March 1998 VA spine examination report noted that, as to range of motion of the lumbar spine, that forward flexion was 28 degrees, backward extension was 20 degrees, flexion to the right was 36 degrees and flexion to the left was 18 degrees. As noted above, the examiner indicated that there was loss of function due to pain. The July 1994 VA spine examination report noted that forward flexion was 90 degrees, backward extension was 35 degrees, left lateral flexion was 40 degrees, right lateral flexion was 40 degrees and rotation to the right and left was 35 degrees. The examiner indicated that pain was experienced in all ranges of motion tested. Further, the June 1993 VA spine examination report noted that flexion was 75 degrees and extension was 20 degrees and that the veteran had complaints of pain on motion. The Board observes that the veteran's present 40 percent evaluation reflects severe limitation of motion. He is not entitled to a higher evaluation under the appropriate schedular criteria. 38 C.F.R. Part 4, Diagnostic Code 5292 (1996). Additionally, as indicated above, ankylosis of the lumbar spine has not been shown. 38 C.F.R. Part 4, Diagnostic Codes 5286, 5289 (1996). The Board also observes that severe lumbosacral strain is also reflected in the present 40 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5295 (1996). The veteran is in receipt of the maximum allowable disability evaluation under such schedular criteria. Therefore, the Board concludes that the 40 percent disability evaluation sufficiently provides for the veteran's present level of disability. The Board also finds that the veteran's present disability evaluation encompasses his objectively ascertainable functional impairment due to pain. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1998). As discussed above, the examiner, pursuant to the March 1998 VA spine examination report, did indicate that the veteran had loss of function due to pain. Also, the June 1993 and July 1994 VA spine examination report did refer to pain on motion. The Board observes that the 40 percent disability evaluation encompasses such functional loss. Moreover, there is no clinically identifiable pathology warranting extended discussion as to whether a separately assignable compensable rating is appropriate. Accordingly, an increased evaluation for chronic lumbar syndrome is not warranted. Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Veterans Appeals (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). II. Increased Evaluation for a Whiplash Injury of the Cervical Spine with Possible Radiculopathy to the Right Arm The Board observes that, as to this issue, the RO has not assigned separate staged ratings. In reaching the determination below, the Board has considered whether staged ratings should be assigned. The Board concludes that the veteran's cervical spine disability has not significantly changed and that a uniform evaluation is appropriate in this case. See Fenderson. A. Historical Review The veteran's service medical records indicate that he was seen for complaints including pain in the cervical spine in October 1982. An October 1982 treatment entry noted that the veteran complained of pain in the back of the head, neck and upper back. He had been involved in a motor vehicle accident two days earlier. The diagnosis was acute cervical sprain. An October 1982 consultation report indicated an assessment of mild cervical spine strain, acute. The December 1992 separation examination report included notations that the veteran's spine and other musculoskeletal systems were normal. The veteran underwent a VA general medical examination in June 1993. The impression included history of whiplash injury to the neck. A June 1993 VA spine examination report noted that the veteran reported that he had neck pain on a recurrent basis. He indicated that the pain radiated from the neck into the right arm as far as the hand. The veteran also reported occasional tingling in the right hand. As to range of motion, the veteran had 40 degrees of flexion and 40 degrees of extension. Right and left lateral turning was to 75 degrees. The examiner noted that the veteran had no significant pain in the neck on motion and that there was no significant tenderness to palpation. The examiner reported that the veteran had 5/5 strength in the upper extremities and that reflexes and sensation were intact. The impression included whiplash injury of the cervical spine with possible radiculopathy of the right arm. A June 1993 radiological report, as to the cervical spine, indicated that there was no significant abnormality. In September 1993, service connection was granted for a whiplash injury of the cervical spine with possible radiculopathy to the right arm. A noncompensable disability evaluation was assigned effective June 1, 1993. B. Increased Evaluation Slight limitation of motion of the cervical spine warrants a 10 percent evaluation. A 20 percent evaluation requires moderate limitation of motion. A 30 percent evaluation requires severe limitation of motion. 38 C.F.R. Part 4, Diagnostic Code 5290 (1999). Ankylosis of the cervical spine at a favorable ankle warrants a 30 percent evaluation. A 40 percent evaluation requires fixation at an unfavorable angle. 38 C.F.R. Part 4, Diagnostic Code 5287 (1999). Treatment records from the Fox Army Community Hospital dated from February 1994 to June 1994 indicated that the veteran was treated for several disorders. The veteran underwent a VA spine examination in July 1994. He complained of chronic pain in the right side of the neck with radiation into the upper extremity and associated with a numb feeling in the ulnar distribution of the right hand. The examiner noted that motor function and muscular development were normal and symmetrical in both upper extremities. Deep tendon reflexes were symmetrical and present in the upper extremities. The examiner noted that the veteran complained of numbness or paresthesia primarily in the ulnar distribution of the right upper extremity, but that sensory testing indicated that there was greater sensation to pain in the ulnar distribution as compared to the radial distribution (i.e. hyperesthesia). The diagnoses included possible neural disorder of the cervical spine. A July 1994 radiological report, as to the cervical spine, noted that there was no fracture or subluxation. VA treatment records dated from July 1994 to December 1995 referred to treatment for other disorders. Treatment records from the Fox Army Community Hospital dated from August 1995 to September 1996 referred to continued treatment. The veteran underwent a VA spine examination in March 1998. He reported that he had pain in his cervical spine. The examiner noted that the veteran's motion stopped when the pain began. As to range of motion of the cervical spine, forward flexion was 40 degrees, backward extension was 18 degrees, flexion to the right was 32 degrees and flexion to the left was 30 degrees. The diagnoses included degenerative joint disease of the cervical spine with loss of function due to pain. A June 1999 rating decision increased the disability evaluation assigned for the veteran's service-connected whiplash injury of the cervical spine with possible radiculopathy to the right arm to 10 percent effective June 1, 1993. The 10 percent disability evaluation has remained in effect. The Board has weighed the evidence of record. It is observed that the clinical and other probative evidence of record indicates that the veteran suffers from symptomatology reasonably shown to be productive of moderate limitation of motion of the cervical spine. 38 C.F.R. Part 4, Diagnostic Codes 5003, 5290 (1999). The most recent March 1998 VA spine examination report noted that the veteran reported that he had pain in his cervical spine. The examiner noted that the veteran's motion stopped when the pain began. As to range of motion of the cervical spine, forward flexion was 40 degrees, backward extension was 18 degrees, flexion to the right was 32 degrees and flexion to the left was 30 degrees. The diagnoses included degenerative joint disease of the cervical spine with loss of function due to pain. Additionally, the July 1994 VA spine examination noted that the veteran complained of chronic pain in the right side of the neck with radiation into the upper extremity and associated with a numb feeling in the ulnar distribution of the right hand. The diagnoses included possible neural disorder of the cervical spine. A June 1993 VA spine examination report noted that, as to range of motion of the cervical spine, the veteran had 40 degrees of flexion and 40 degrees of extension. Right and left lateral turning was to 75 degrees. The examiner noted that the veteran had no significant pain in the neck on motion and that there was no significant tenderness to palpation. The impression included whiplash injury of the cervical spine with possible radiculopathy of the right arm. The Board is of the view that the evidence is sufficiently in equipoise as to whether a 20 percent evaluation, reflecting moderate limitation of motion of the cervical spine, is more nearly indicative of the veteran's disability picture under the facts of this case. Severe limitation of motion as required for an evaluation in excess of 20 percent under the appropriate schedular criteria noted above has not been shown. Further, ankylosis of the cervical spine has not been shown. 38 C.F.R. Part 4, Diagnostic Code 5286, 5287 (1999). Additionally, the evidence of record does not indicate that the veteran suffers from clinically substantiated symptomatology reasonably productive of more than moderate intervertebral disc syndrome with recurring attacks and intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293 (1999). The July 1994 VA spine examination report noted that motor function and muscular development were normal and symmetrical in both upper extremities. The examiner noted that the veteran complained of numbness or paresthesia primarily in the ulnar distribution of the right upper extremity, but that sensory testing indicated that there was greater sensation to pain in the ulnar distribution as compared to the radial distribution (i.e. hyperesthesia). The June 1993 VA spine examination report noted that the veteran indicated that he had pain radiating from his the neck and into the right arm as far as the hand. He also reported occasional tingling in the right hand. The examiner reported that the veteran had 5/5 strength in the upper extremities and that reflexes and sensation were intact. Therefore, the Board observes that the medical evidence of record clearly fails to indicate what could reasonably be considered to be severe intervertebral disc syndrome with recurring attacks and intermittent relief as required for a 40 percent evaluation pursuant to the appropriate schedular criteria noted above. The Board also finds that the 20 percent disability evaluation encompasses the veteran's functional impairment due to pain. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1998). As discussed above, the examiner, pursuant to the March 1998 VA spine examination report, did indicate that the veteran had loss of function due to pain. The Board observes that the 20 percent disability evaluation encompasses such functional loss. Moreover, there is no clinically identifiable pathology warranting extended discussion as to whether a separately assignable compensable rating is appropriate. Accordingly, the Board concludes that the evidence is sufficiently in equipoise to warrant a 20 percent evaluation for the veteran's service-connected whiplash injury of the cervical spine with possible radiculopathy to the right arm. Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Veterans Appeals (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). III. Increased Evaluation for Status Post Right Nephrectomy The Board observes that, as to this issue, the RO has not assigned separate staged ratings. The Board has considered whether staged ratings should be assigned and has concluded that the veteran's service-connected status post right nephrectomy has not significantly changed and that a uniform evaluation is appropriate in this case. See Fenderson. A. Historical Review The veteran's service medical records indicate that the veteran was hospitalized in October 1974. The diagnoses included ureteropelvic obstruction, right, with hydronephrosis. A December 1974 hospital report noted that the veteran had a history of a right pyeloplasty for ureteropelvic junction obstruction in July 1973. It was noted that since that time the veteran had episodes of urinary tract infections and recurrent episodes of right flank pain. The veteran underwent a right nephrectomy. The final diagnosis was right hydronephrosis. The December 1992 separation examination noted that the veteran had a right kidney removal in October 1974. There was a notation that the veteran's genitourinary system was normal. The veteran underwent a VA general medical examination in June 1993. It was noted that the veteran had a history of a right nephrectomy. The veteran reported that such was secondary to severe pyelonephritis. It was also observed that the veteran had recurrent urinary tract infections. The examiner reported that the genitourinary examination was deferred at the veteran's request. The diagnoses included status post right nephrectomy with recurrent urinary tract infections. A June 1993 laboratory report noted that the veteran's creatinine was 1.0 mg/dl and his albumin was 3.9 g/dl. In September 1993, service connection was granted for status post right nephrectomy. A 30 percent disability evaluation was assigned effective June 1, 1993. The 30 percent disability evaluation has remained in effect. B. Increased Evaluation Removal of one kidney warrants a minimum evaluation of 30 percent; or rate as renal dysfunction if there is nephritis, infection, or pathology of the other. 38 C.F.R. Part 4, Diagnostic Code 7500 (1999). A 30 percent evaluation is warranted for renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A 60 percent evaluation requires constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under diagnostic code 7101. 38 C.F.R. § 4.115 (1999). The Board notes that the regulations governing the evaluations of cardiovascular disorders were amended as of January 12, 1998. See 62 FEDERAL REGISTER 65207 (1997) (to be codified at 38 C.F.R. §§ 4.100-4.102). The Board observes that the regulations applicable as of January 12, 1998, are more favorable to the pending claim. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) (when there has been a change in an applicable regulation after a claim has been filed, but before final resolution, the regulation most favorable to the claimant must be applied). Under the regulations in effect as of January 12, 1998, a 10 evaluation is warranted for hypertensive vascular disease (hypertension and isolated systolic hypertension) where diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more, or; a minimum 10 percent evaluation is assigned for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation requires diastolic pressure of predominantly 110 or more, or; systolic pressure of 200 or more. A 40 percent evaluation requires diastolic pressure predominantly 120 or more. 38 C.F.R. Part 4, Diagnostic Code 7101 (1999). Under the regulations in effect prior to January 12, 1998, a 10 percent evaluation is warranted for hypertensive vascular disease (essential arterial hypertension) where the diastolic pressure is predominantly 100 or more. A minimum 10 percent evaluation is also assigned when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. A 20 percent evaluation requires diastolic pressure of predominantly 110 or more with definite symptoms. A 40 percent evaluation requires diastolic pressure predominantly 120 or more and moderately severe symptoms. 38 C.F.R. Part 4, Diagnostic Code 7101 (1997). Treatment record from the Fox Army Community Hospital dated from February 1994 to June 1994 indicated that the veteran was treated for several disorders. A March 1994 entry noted that the veteran's blood pressure was 153/87. The diagnosis was epididymitis, right. An April 1994 entry noted a blood pressure reading of 145/77. The veteran underwent a VA genitourinary examination in July 1994. The examiner noted that the veteran's blood pressure was labile and varied from 118/78 to 144/88. The diagnosis was history of right nephrectomy for pyelonephritis. A July 1994 laboratory report noted creatinine of 1.1 mg/dl and albumin of 3.9 g/dl. A July 1994 VA hypertension examination report noted blood pressure readings of 144/88 sitting, 118/78 lying, 110/88 standing and a previous blood pressure reading of 138/86. The diagnosis was borderline blood pressure readings. VA treatment records dated from July 1994 to December 1995 referred to continued treatment. A September 1994 entry noted a blood pressure reading of 166/100. The veteran was noted to be status post a nephrectomy. A December 1995 VA laboratory report noted that creatinine was 1.1 mg/dl and albumin was 3.9 g/dl. Treatment records from the Fox Army Community Hospital dated from August 1995 to September 1996 indicated that the veteran was treated for multiple disorders. An August 1995 laboratory report noted creatinine of 1.1 mg/dl and albumin of 3.9 g/dl. An August 1995 blood pressure record noted readings ranging from 119 to 158 systolic and from 89 to 97 diastolic. A September 1995 entry noted a blood pressure reading of 120/84. The assessment included mild hypertension. A February 1996 entry noted a blood pressure reading of 129/77 and an April 1996 entry noted a blood pressure reading of 135/88. A September 1996 entry noted blood pressure readings ranging from 138 to 148 systolic and from 75 to 84 diastolic. The veteran underwent a VA genitourinary examination March 1998. He reported that he had pain in his left kidney since his surgery. The examiner noted that the veteran had no lethargy, anorexia, or weight loss. The examiner also reported that the veteran had no urinary frequency, but that he had nocturia three times and had questionable hesitancy. It was observed that the veteran had diminution in the stream sometimes and no dysuria, impotence or incontinence. It was noted that the veteran had a urinary tract infection about a year earlier. The veteran had not had recurrent urinary tract infections, renal colic or bladder stones, acute nephritis, or treatment for malignancy and had not required catheterization, dilations, drainage procedures or diet therapy. The blood pressure reading was 132/88 in the right arm. The examiner noted that the veteran's penis and testicles were normal and that his prostate was enlarged 1+. The diagnosis was right nephrectomy, two years, remote. A March 1998 laboratory report noted creatinine of 1.0 mg/dl and albumin of 4.0 g/dl. The Board has made a careful longitudinal review of the record. It is observed that the clinical and other probative evidence of record fails to indicate that the veteran suffers from symptomatology productive of more than removal of one kidney with renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. 38 C.F.R. Part 4, including § 4.115(a) and Diagnostic Code 7500 (1999). The most recent March 1998 VA genitourinary examination report noted that the veteran reported that he had pain in his left kidney since his surgery. The examiner reported that the veteran had no lethargy, anorexia or weight loss. It was noted that the veteran had no urinary frequency, but that he had nocturia three times and questionable hesitancy.. The examiner noted that the veteran had diminution in the stream sometimes and no dysuria, impotence or incontinence. It was observed that the veteran had a urinary tract infection about a year earlier. The examiner noted that the veteran had not had recurrent urinary tract infections, renal colic or bladder stones, acute nephritis, treatment for malignancy, catheritizations, dilations, drainage procedures or diet therapy. The blood pressure reading was 132/88. The diagnosis was right nephrectomy, two years, remote. A March 1998 laboratory report noted creatinine of 1.0 mg/dl and albumin of 4.0 g/dl. A December 1995 VA laboratory report noted that creatinine was 1.1 mg/dl and albumin was 3.9 g/dl. An August 1995 laboratory report indicated similar findings. Additionally, the Board notes that a July 1994 VA genitourinary examination report noted that the veteran's blood pressure was labile and varied from 118/78 to 144/88. The diagnosis was history of right pyelonephritis. A July 1994 laboratory report noted creatinine of 1.1 mg/dl and albumin of 3.9 g/dl. A July 1994 VA hypertension examination report noted a diagnosis of borderline blood pressure readings. The Board notes that the medical evidence of record clearly fails to indicate that the veteran suffers from constant albuminuria with some edema or a definite decrease in kidney function or hypertension at least 40 percent disabling under diagnostic code 7101, as required for a 60 percent evaluation pursuant to the appropriate schedular criteria noted above. There is no indication of constant albuminuria, edema or decrease in kidney function. Also, the blood pressure readings of record which range from 118 to 166 systolic and 77 to 100 diastolic fail to indicate that the veteran suffers from hypertension which is 40 percent disabling pursuant to either the old or new regulations. A 40 percent evaluation requires diastolic pressure predominantly 120 or more under the new regulations or diastolic pressure predominantly 120 or more and moderately severe symptoms under the old regulations. 38 C.F.R. Part 4, Diagnostic Code 7101 (1999). Such symptomatology simply has not been shown. Therefore, the Board concludes that the 30 percent disability evaluation provides for the veteran's present level of disability. Accordingly an increased evaluation for status post right nephrectomy is not warranted. Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Veterans Appeals (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). IV. Compensable Evaluation for Status Post Hemorrhoidectomy The Board observes that, as to this issue, the RO has not assigned separate staged ratings. The Board has considered whether staged ratings should be assigned. The Board concludes that the veteran's cervical spine disability has not significantly changed and that a uniform evaluation is appropriate in this case. See Fenderson. A. Historical Review The veteran's service medical records indicate that he was treated for hemorrhoids during service. An August 1982 report noted that the veteran had internal and external hemorrhoids with some thrombosis. An October 1985 consultation sheet noted that the had a history of external hemorrhoids. The impression was chronic constipation and external hemorrhoids. An August 1987 operation report noted that the veteran underwent a proctosigmoidoscopy and hemorrhoidectomy. The December 1992 separation examination report noted that the veteran had a hemorrhoid removal in October 1987. It was noted that the veteran had a normal digital rectal examination with stool guaiac negative. The veteran underwent a VA general medical examination in June 1993. It was noted that the veteran was status post a hemorrhoidectomy with still occasional bleeding on toilet paper and in his stool. The examiner reported that the rectal examination was deferred at the veteran's request. The diagnoses included hemorrhoids, status post hemorrhoidectomy with occasional recurrent bleeding. In September 1993, service connection was granted for status post hemorrhoidectomy. A noncompensable disability evaluation was assigned effective June 1, 1993. The noncompensable disability evaluation has remained in effect. B. Increased Evaluation A noncompensable evaluation is warranted for mild or moderate external or internal hemorrhoids. A 10 percent evaluation requires large or thrombotic, irreducible external or internal hemorrhoids with excessive redundant tissue evidencing frequent recurrences. 38 C.F.R. Part 4, Diagnostic Code 7336 (1999). Treatment records from the Fox Army Community Hospital dated from February 1994 to June 1994 indicated that the veteran was treated for several disorders. The veteran underwent a VA rectal examination in July 1994. He reported that he had occasional tiny blood with hard stools. The diagnosis was status post-operative hemorrhoidectomy with history of mild recurrent bleeding. VA treatment records dated from July 1994 to December 1995 referred to continued treatment. Treatment records from the Fox Army Community Hospital dated from August 1995 to September 1996 indicated that the veteran was treated for multiple disorders. The veteran underwent a VA rectal examination in March 1998. The veteran reported that he only had occasional problems and that his hemorrhoids would only come out occasionally. He stated that they did not bleed anymore like they used to. The examiner noted that there was no fecal leakage and no scarring or sign of a previous hemorrhoidectomy. The examiner noted that there were no signs of hemorrhoids and no bleeding at the time of the examination. There was no anemia and no fissures. The diagnosis was hemorrhoidectomy, post- operative in 1986, with no sequelae. The Board has weighed the evidence of record. It is observed that the clinical and other probative evidence of record fails to indicate that the veteran suffers from symptomatology productive of more than mild or moderate external or internal hemorrhoids. 38 C.F.R. Part 4, Diagnostic Code 7336 (1999). The most recent March 1998 rectal examination report noted that the veteran reported that he only had occasional problems and that this hemorrhoids would only come out occasionally. The veteran stated that his hemorrhoids did not bleed anymore like they used to. The examiner noted that there were no signs of hemorrhoids and no bleeding at the time of the examination. The examiner reported that there was no anemia, no fissures and no scarring or sign of the previous hemorrhoidectomy. The diagnosis was hemorrhoidectomy, post-operative in 1986, with no sequelae. Additionally, the Board notes that a July 1994 rectal examination report indicated that the veteran reported that he had occasional tiny blood with hard stools. The diagnosis was status post-operative hemorrhoidectomy with history of mild recurrent bleeding. The Board observes that the medical evidence of record fails to indicate that the veteran suffers from large or thrombotic, irreducible external or internal hemorrhoids with excessive redundant tissue evidencing frequent recurrences as required for a 10 percent disability evaluation pursuant to the appropriate schedular criteria noted above. The July 1994 VA rectal examination did indicate that the veteran had mild recurrent bleeding. However, the more recent March 1998 VA rectal examination report did not indicate such symptomatology. Further, the diagnosis pursuant to such examination report, noted that there were no sequelae. The evidence simply fails to indicate that the veteran presently suffers from large or thrombotic irreducible external or internal hemorrhoids. Therefore, the Board concludes that the noncompensable disability evaluation sufficiently provides for the veteran's present level of disability. Accordingly, an increased evaluation for status post hemorrhoidectomy is not warranted. ORDER An increased evaluation for chronic lumbar syndrome is denied. A 20 percent evaluation for a whiplash injury of the cervical spine with possible radiculopathy to the right arm is granted, subject to the laws and regulations governing the award of monetary benefits. An increased evaluation for status post right nephrectomy is denied. A compensable evaluation for status post hemorrhoidectomy is denied. REMAND The veteran asserts on appeal that he is entitled to service connection for migraine headaches. In reviewing the record, the Board notes that the RO did not fully comply with the October 1997 remand instructions. The October 1997 remand requested, in part, that the veteran be afforded a VA examination for an opinion regarding the etiology and date of onset of the veteran's claimed migraine headaches. The examiner was requested to review the veteran's service medical records or copies of such records along with copies of all treatment records and examinations reports dated after service. The examiner was specifically requested to provided an opinion as to the etiology and date of onset of any current migraine headache disorder and an opinion as to any relationship between such disorder and the veteran's service- connected disabilities, especially his service-connected cervical spine disorder. The Board observes that the veteran was afforded a VA neurological examination in March 1998. There is no indication that the examiner reviewed the claims folder prior to the examination. The diagnoses included chronic daily headaches with no significant interference of daily activities and rare migraine headaches. The examiner noted that it was stated in the remand that the migraine type headaches occurred after the veteran's discharge from active duty. It was noted that the veteran stated that the migraine headaches had their onset in 1970 to 1980 and that he had been treated in more than one military treatment facility with a shot for migraine type headaches. The examiner stated that "it would be incumbent upon the reviewing officer to review all medical records around that time period both at Fox Army Hospital and Frankfort, Germany, for possible treatments of migraine headache". The Board observes that the Court has held that the Board is prohibited from reaching its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Further, when the medical evidence is inadequate, the VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Halstead v. Derwinski, 3 Vet.App. 213 (1992). Additionally, the Court has also held that the RO must comply with the Board's remand instructions or explain its failure to complete the requested action. Talley v. Brown, 6 Vet.App. 72, 74 (1993). Also, the Court recently issued a decision vacating and remanding a Board decision on the ground that the RO failed to follow the directives contained in the Board remand. In concluding that a further remand was required, the Court noted the following regarding the VA 's failure to comply with the terms of the prior Board remand: [A] remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by the Court or the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, No. 97-78 (U.S. Vet.App. June 26, 1998). Given the nature of the veteran's contentions, the failure of the examiner, pursuant to the March 1998 VA neurological examination, to review the veteran's claims folder and provide the requested etiological opinions and in consideration of the Court's holdings in the cases noted above, specifically Talley and Stegall, the Board concludes that an additional VA neurological examination should be scheduled prior to completion of appellate review. In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the United States Court of Veterans Appeals (hereinafter "the Court") in Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the following action: 1. The RO should notify the veteran that he may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should schedule the veteran for a VA neurological examination in order to determine the present nature and severity of his claimed migraine headache disorder. The examiner should review the veteran's service medical records or copies of such records along with copies of all treatment records and examination reports dated after service in order to obtain an accurate history of the veteran's complaints and diagnoses in service. The examiner should then provide an opinion as to the etiology and date of onset of any current migraine headache disorder and an opinion as to any relationship between such disorder and the veteran's service-connected disabilities, especially his service- connected cervical spine disability. A complete rationale for any opinion expressed should be provided. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the examination reports do not include fully detailed descriptions of pathology or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1995) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 4. Following completion of the above and following any additional development deemed necessary, the RO, in a rating decision, should reconsider the remaining issue on appeal giving consideration to any additional evidence obtained. A supplemental statement of the case should also be prepared and issued. 5. 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 Veterans Appeals 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. 1996) (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. When the requested action has been completed, and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record. No inference should be drawn from it regarding the final disposition of the veteran's claim. While regretting the delay involved in again remanding this case, it is felt that to proceed with a decision on the merits at this time would not withstand Court scrutiny. JEFF MARTIN Member, Board of Veterans' Appeals