Citation Nr: 0813557 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-33 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an increased rating for a lumbothoracic strain with degenerative disc disease, rated as 10 percent disabling, prior to December 8, 2006. 2. Entitlement to an increased rating for a lumbothoracic strain with degenerative disc disease, rated as 20 percent disabling effective December 8, 2006. 3. Entitlement to an increased rating for a cervical strain, currently rated as 20 percent disabling. 4. Whether new and material evidence has been received to reopen a claim for service connection for asthma. 5. Whether new and material evidence has been received to reopen a claim for service connection for sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, H.T. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The veteran served on active duty from October 1990 to October 1993; and from May 1994 to December 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2006, a statement of the case was issued in August 2006, and a substantive appeal was received in October 2006. The Board notes that the December 2005 RO rating decision denied a rating in excess of 10 percent for the veteran's service connected lumbothoracic strain. However, by way of an April 2007 rating decision, the RO increased the rating to 20 percent effective December 8, 2006 (the date of a VA examination). Since the increased rating did not date back to the date of the claim; the issue is broken into the two distinct time periods enumerated above. The Board notes that the RO, in its December 2005 rating decision found that new and material evidence had been received to reopen claims for service connection for asthma and sinusitis. It then proceeded to deny the claims on the merits. Although the RO may have determined that new and material evidence was received to reopen the claims, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The veteran presented testimony at a Board hearing in October 2007. A transcript of the hearing is associated with the veteran's claims folder. Finally, the Board notes that at the veteran's Board hearing, she indicated that she wished to withdraw the issue of entitlement to service connection for bronchitis. The asthma and sinusitis service connection issues under a merits analysis are being remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on the appellant's part. FINDINGS OF FACT 1. Prior to December 8, 2006, the veteran's lumbothoracic strain with degenerative disc disease was not manifested by forward flexion of the thoracolumbar spine limited to greater than 30 degrees but not greater than 60 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months 2. From December 8, 2006, the veteran's lumbothoracic strain with degenerative disc disease is manifested by mild degenerative disk disease; osteoarthritis; and limitation of motion. It is not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. 3. The veteran's cervical strain is not manifested by forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 4. By rating decision in May 2003, the RO denied the veteran's claim for service connection for asthma; the veteran did not initiate an appeal by filing a notice of disagreement. 5. Evidence received since the May 2003 rating decision raises a reasonable possibility of substantiating the asthma claim. 6. By rating decision in August 2001, the RO denied the veteran's claim for service connection for sinusitis; the veteran did not initiate an appeal by filing a notice of disagreement. 7. Evidence received since the August 2001 rating decision raises a reasonable possibility of substantiating the sinusitis claim. CONCLUSIONS OF LAW 1. Prior to December 8, 2006, the criteria for entitlement to a disability evaluation in excess of 10 percent for the veteran's service-connected lumbothoracic strain with degenerative disc disease were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243 (2007). 2. From December 8, 2006, the criteria for entitlement to a disability evaluation in excess of 20 percent for the veteran's service-connected lumbothoracic strain with degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243 (2007). 3. The criteria for entitlement to a disability evaluation in excess of 20 percent for the veteran's service-connected cervical strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243 (2007). 4. The May 2003 rating decision that denied a service connection claim for asthma is final. 38 U.S.C.A. § 7105 (West 2002). 5. Evidence received since the May 2003 rating decision is new and material; accordingly, the asthma claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 6. The August 2001 rating decision that denied a service connection claim for sinusitis is final. 38 U.S.C.A. § 7105 (West 2002). 7. Evidence received since the August 2001 rating decision is new and material; accordingly, the sinusitis claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant a pre-adjudication notice letter dated May 2005. At this point the Board acknowledges that for an increased- compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores. In this case there has clearly been no compliance with Vazquez since that judicial decision was just rendered in January 2008. However, after reviewing the claims file the Board finds no resulting prejudice to the veteran in connection with the issues addressed on the merits in the following decision. It appears clear to the Board that a reasonable person under the facts of this case could be expected to know and understand the types of evidence necessary to show a worsening or increase in the severity of the lumbothoracic and cervical strains and the effect of that worsening on employment and daily life. In fact, the veteran's hearing testimony includes assertions by her as to the effect of her disabilities on her life. Moreover, the veteran in this case has been represented in the appeal by The American Legion, and the Board believes it reasonable to assume that this service organization's trained representatives conveyed the particulars of what is necessary for a higher rating to the veteran during the appeal process which has been ongoing since January 2005. The Board finds that the veteran has had actual knowledge of the elements outlined in Vazquez and that no useful purpose would be served by remanding the issues to the RO to furnish notice as to elements of her claims which the veteran has already effectively been made aware of. Such action would not benefit the veteran with regard to the lumbothoracic and cervical strain issues. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. While the notification did not advise the appellant of the laws regarding degrees of disability or effective dates for any grant of service connection, the Board notes that the RO provided the veteran with correspondences dated September 2006 and November 2006 that fully complied with Dingess. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA has obtained service medical records, assisted the appellant in obtaining evidence, afforded the veteran physical examinations in September 2005, December 2006, and January 2007, obtained medical opinions as to the severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the appellant has not contended otherwise. In Kent v. Nicholson, No. 04-181 (U.S. Vet. App. March 31, 2006), the Court addressed directives consistent with VCAA with regard to new and material evidence. The Court stated that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. In addition, VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. In the present case, the Board observes that the RO furnished the appellant with an adequate notice letter in May 2005. It set forth the criteria for entitlement to the benefit sought by the appellant, and included discussion of new and material evidence so as to comply with the Kent requirements. The Board believes that the May 2005 notice, constituted adequate notice to the appellant. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Ratings The present appeal involves the veteran's claim that the severity of her service-connected lumbothoracic and cervical strains warrants higher disability ratings. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran's claims for an increased ratings for low back and cervical spine disabilities was received in January 2005, and the present appeal is therefore governed by the current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The new criteria also includes the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome Pursuant to Diagnostic Code 5243 (regarding intervertebral disc syndrome), a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Pursuant to Diagnostic Code 5010, degenerative joint disease is to be rated as analogous to degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, 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. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. NOTE (2): The 20 percent and 10 percent ratings based on X-ray findings will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet.App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Factual Background The veteran underwent a VA examination in September 2005. She complained of pain in her cervical spine that flares up to 7 on a scale of 1 to 10. The pain in her lumbar spine flares up to 10 on a scale of 1 to 10. Pain in her neck lasts "five to six seconds." She claimed constant pain in her lumbar spine. She takes 50 mg. of Ultram as needed. Precipitating factors include standing for more than 15-20 minutes, and walking more than 30 minutes. Alleviating factors include resting, stretching, and taking medication. She estimates that during a flare-up, she has 50 percent additional limitation of movement in the neck, and 100 percent limitation of motion in her lumbar spine. She walks unaided and does not use any assistive devices. She does not use a back brace; but she does wear an extended bra that works like a corset. She reported that her walking limitation is 1.5 miles. She has not had any surgery on her spine. She stated that her functional limitations are in walking and overall mobility. She is not limited in driving. Upon physical examination, the veteran's spine had normal curvature. Posture and gait were intact. The position of the head was midline; curvature of the spine was normal. She had symmetry and rhythm of spinal motion. She had the following range of motion in her cervical spine: forward flexion was 0-42 degrees; extension was 0-40 degrees; left and right lateral flexion was 0-42 degrees; and right and left lateral rotation was 0-72 degrees. There was no pain on range of motion. There was no loss of motion on repetitive use. She had posterior muscle spasms; but no tenderness or weakness. There was no abnormal posture or fixed deformity or abnormality of the musculature of the cervical spine. The veteran had the following range of motion in her thoracolumbar spine: forward flexion was 0-90 degrees; extension was 0-30 degrees; left and right lateral flexion was 0-30 degrees; and left and right lateral rotation was 0- 30 degrees. There was no pain on motion. There was no loss of motion on repetitive use. She had paralumbar muscle spasm. There was no guarding or localized tenderness. She had preserved spinal contour and normal gait. There was no abnormal spinal contour, such as scoliosis, reverse lordosis or abnormal kyphosis. She did not have abnormal posture or fixed deformity or abnormality of the musculature of the back. A neurological examination showed no sensory deficit in sacral segments; and no deficit was shown on motor examination. Bicep muscles, thighs, and calves were symmetrical. Tone was normal. Strength was 3.0 - 3.5+. Reflexes of the deep tendon and cutaneous were intact. There was no pathological reflex. Lasegue's sign was negative bilaterally. There were no vertebral fractures. Waddell's test was negative. There was no intervertebral disc syndrome. X-rays of the cervical spine showed straightening of usual lordosis which may relate to muscle spasm. Cervical disc spaces appeared reasonably well maintained in height. There were multilevel endplate degenerative changes with osteophytosis. No definite abnormal prevertebral soft tissue swelling was seen. X-rays of the lumbosacral spine showed very mild scoliosis. Lumbar lordosis was present; and there was the appearance of very slight anterolisthesis of L4 on L5. There was multilevel mild endplate degenerative change. Lumbar vertebral bodies and disc spaces appeared reasonably well maintained in height. There was a suggestion of old post traumatic change in the distal sacral region. No definite pedicle destruction of the lumbar spine was seen. The veteran submitted a March 2006 examination report from Dr. A.C.P. The veteran ambulated with a slow cautious gait; and she was able to toe walk without significant difficulty. To palpation, she had tenderness along the left PSIS and buttock region as well as some mild left trochanteric tenderness. She was able to forward flex (her lumbothoracic spine) to where she could touch her toes associated with mild left-sided paraspinal discomfort. Extension was to 30 degrees, also associated with mild discomfort. She also had a sharp twinge of pain associated with left lateral flexion combined with extension. X-rays showed facet arthropathy at L4-5 with a hint of anterolisthesis of L4 on L5 without any significant dynamic instability. An MRI of the lumbar spine also showed a slight anterolisthesis of L4 on L5 with a disk bulge at this level that causes some mild to moderate subarticular stenosis. The veteran underwent another VA examination on December 8, 2006. She stated the pain in her lower back (which has existed for 16 years) escalated within the past month, and radiates into her lower left extremity. She also complained that her neck continues to cause stiffness; that it is painful and tender with movement; and that there is radiating pain into her left arm into her fingertips. When the conditions are stable, pain is a 3 on a scale of 1 to 10. The average pain level is a 5; and over the past month it has intensified to a 9. When her symptoms escalate, she stated that she is confined to bed. This has occurred seven times a month; and each instance lasted approximately one hour. She is taking Tylenol and is receiving physical therapy. She stated that in the past year, she has had three or four flare-ups (similar to what she was experiencing at the time of the examination). She reported that her condition spontaneously accelerated. Alleviating factors include rest and medication. When she experiences a flare up, she said that her functional abilities are significantly diminished. She has difficulty with bending and stooping; and she cannot run or jump. She had no associated symptoms due to her back or neck condition. She walked with a cane because she feels unsteady in her gait due to pain and weakness in her lower limb. She reported using back orthosis, especially when she tries to increase her activities such as doing light housework. With her cane, the veteran is able to walk for approximately 100 feet before having to rest for a few minutes. Then she can continue. She reported that she can drive locally; but that her recreational activities have diminished. During the past month, she has been sedentary. Upon examination, her spine was straight. There were no postural abnormalities or excessive curves of the neck, thoracic, or lumbar area. The spine was symmetric. Motion of the spine was a little course due to guarding and pain (especially during forward flexion). Range of motion of the cervical spine was: forward flexion 0-45 degrees; extension 0-45 degrees; right and left lateral flexion 0-45 degrees; and right and left lateral rotation 0-80 degrees. The veteran reported increasing tightness and discomfort at the end arch of all movements. Palpatory tenderness of a very mild nature was present diffusely through the paracervical area. There were no significant muscle spasms or guarding. There was no torticollis or postural abnormalities. Range of motion of the thoracic spine was: forward flexion 0- 75 degrees (pain at 0-50 degrees); extension 0-30 degrees; right and left lateral flexion 0-30 degrees; left lateral rotation 0-20 degrees; and right lateral rotation 0-30 degrees. Due to the veteran's condition, repetitive exercises were not tolerable. However, the examiner anticipated an additional loss of 20 degrees of forward flexion after repetitive use. The function is additionally limited by pain and fatigue following repetitive use. This pain and fatigue cause major functional impact. After the examiner had the veteran move from a chair to the examining table, and then back to the floor (for gait analysis) the veteran indicated an increasing escalation of symptoms; and her gait pattern changed, with an increase in the degree of her limp. Muscle spasm and guarding were not severe enough to result in an abnormal spinal contour. There were no fixed deformities or ankylosis. The veteran also went a neurological examination. The sensory examination to cutaneous light touch showed diminished sensory perception along the lateral aspect of the left thigh, left calf and at the left great toe. Motor examination showed no significant atrophy. Motor tone was satisfactory; however, motor strength was noticed to be diminished on the left compared to the right side. The left hip flexor and quadriceps knee extensor had diminished slightly at a +4-5. Deep tendon reflexes at the Achilles level indicated an absent reflex on the left side. Patellar level was equal bilaterally +2. Straight leg raise in the sitting and lying positions caused complaints of mild lower back pain and was suggestive of a radiculitis. The examination revealed no vertebral fractures or nonorganic physical signs. There was questionable radiculitis along the left side, although the veteran indicated more pain on the right side on radiation. There was decreased motor strength on the left side involving the major muscle groups of the lower extremity; however, this was not neurological in etiology, but was probably due to pain reflex from the lower back. December 2006 x-rays indicated mild degenerative disk disease and osteoarthritis with narrowing from C5 to C7. There was also mild decrease in height of C4 and C5. Lumbosacral x- rays showed narrowing at L5-S1 with minimal degenerative disk disease and osteoarthritis. The veteran was diagnosed with degenerative disc disease and osteoarthritis of the cervical spine with residuals, and degenerative disc disease of the thoracolumbar spine with radiculitis and residuals. The veteran underwent another VA examination in January 2007. The report showed decreased range of motion of the lumbar spine with flexion at 75 degrees; extension at 10 degrees; and bilateral rotation at 15 degrees. There was normal curvature with mild to moderate tenderness over the L4-5 and L5-S1 facet joints. There was moderate lumbar paraspinal muscle spasm. Straight leg raising was negative on the right; equivocal on the left at 6 degrees. Patrick's test was negative bilaterally for sacroiliitis. Lumbothoracic spine (prior to December 8, 2006) The Board notes that in order to warrant a rating in excess of 10 percent for the veteran's lumbothoracic spine disability, prior to December 8, 2006, the disability must be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. The Board notes that her range of motion has not been shown to be limited to that degree. At her September 2005 VA examination, she had forward flexion to 90 degrees. A March 2006 examination report by a private physician (Dr. A.C.P.) showed enough forward flexion for the veteran to be able to touch her toes. Additionally, the September 2005 VA examiner specifically stated that although she had paralumbar muscle spasm; there was no guarding or localized tenderness; she had preserved spinal contour and normal gait; there was no abnormal spinal contour, such as scoliosis, reverse lordosis or abnormal kyphosis; and she did not have abnormal posture or fixed deformity or abnormality of the musculature of the back. Moreover, the medical evidence fails to show incapacitating episodes, prescribed by a physician and treatment by a physician, having a total duration of at least two weeks, but less than four weeks during the past 12 months. Finally, in regards to DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion of the lumbothoracic spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent prior to December 8, 2006. Lumbothoracic strain (December 8, 2006 - present) The Board notes that in order to warrant a rating in excess of 20 percent for the veteran's lumbothoracic spine disability, the disability must be manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. The Board notes that her range of motion has not been shown to be limited to that degree. At her December 2006 and January 2007 VA examinations, she had forward flexion to 75 degrees respectively. Moreover, the medical evidence fails to show incapacitating episodes, prescribed by a physician and treatment by a physician, having a total duration of at least four weeks, but less than six weeks during the past 12 months. Finally, in regards to DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion of the lumbothoracic spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 20 percent. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that her service connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Cervical spine In order to warrant a rating in excess of 20 percent for a cervical strain, the disability must be manifested by forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. The Board notes that her range of motion has not been shown to be limited to that degree. At her September 2005 and December 2006 VA examinations, she had forward flexion to 42 degrees and 45 degrees respectively. In regards to DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion of the cervical spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 20 percent. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that her service connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. New and Material Evidence Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") provides as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Asthma The RO denied the veteran's claim for service connection for asthma in April 1994, August 2001, and May 2003. The veteran failed to file a notice of disagreement within one year of the May 2003 rating decision. Consequently, this decision became the most recent final denial. When the RO denied the claim in May 2003, the evidence consisted of the veteran's service medical records; VA examination reports dated December 1993, May 2001, and April 2003; and post service VA treatment records. The RO denied the claim on the basis that there was no competent medical opinion that provided a nexus between the veteran's asthma and service. Evidence submitted since the May 2003 decision includes treatment records from Dr. W.B.G. (dated July 1988 to July 2005); and a July 2005 statement from Dr. W.B.G. in which he states that the heat and humidity incurred during the veteran's military service aggravated her asthma. This is new and material evidence in that the veteran has provided a competent medical opinion that links her asthma to service. As such, the Board finds that the veteran's claim for service connection for asthma is reopened. Sinusitis The RO denied the veteran's claim for service connection for sinusitis in August 2001; and the veteran failed to file a timely notice of disagreement. As such, the decision became final. When the RO denied the claim in August 2001, the evidence consisted of the veteran's service medical records; and a VA examination report dated May 2001. The RO denied the claim on the basis that sinusitis was not shown at her May 2001 VA examination. (The Board notes that she was diagnosed with rhinitis and a probable retention cyst in the right maxillary sinus). Evidence submitted since the August 2001 decision includes treatment records from Dr. W.B.G. (dated July 1988 to July 2005); and a July 2005 statement from Dr. W.B.G. in which he states that the veteran was using Afrin for sinusitis while in service; and that her sinusitis remains acute and controlled with Flunisalide. This is new and material evidence in that the claim was originally denied because the veteran did not have sinusitis at the time of her May 2001 VA examination; whereas the new evidence reflects that she has been diagnosed with sinusitis. As such, the Board finds that the veteran's claim for service connection for sinusitis is reopened. ORDER Prior to December 8, 2006, entitlement to a disability rating in excess of 10 percent for the veteran's lumbothoracic strain with degenerative disc disease was not warranted. Entitlement to a disability rating in excess of 20 percent for the veteran's lumbothoracic strain with degenerative disc disease from December 8, 2006 is not warranted. To this extent, the appeal is denied. New and material evidence has been received to reopen service connection claims for asthma and sinusitis. To this extent, the appeal is granted, subject to the remand directions set forth below. REMAND The Board has found that new and material evidence has been received to reopen the veteran's claims for service connection for asthma and sinusitis. However, the new and material evidence is not enough to make a decision on the claim. The medical opinion of Dr. W.B.G. was not rendered with the benefit of having reviewed the veteran's claims file. Moreover, the treatment records are only dated through July 2005. As such, the Board finds that the veteran is entitled to a VA examination for the purpose of determining the nature and etiology of the veteran's current disabilities. In October 2007, additional documentation was received from the appellant. These documents included several VA Forms 21- 4142 which had been completed and signed by the appellant identifying medical care providers who have treated her for asthma and authorizing VA to obtain pertinent records from these providers. Appropriate action to ensure that all such records are associated with the claims file is also necessary. Accordingly, the case is REMANDED for the following actions 1. The RO should take appropriate action to ensure that all pertinent records are associated with the claims file from those medical care providers identified by the veteran in the VA Forms 21-4142 received in October 2007. 2. The veteran should be afforded a VA examination for the purpose of determining the etiology of the veteran's respiratory disabilities (to include asthma and sinusitis). The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service medical records and post-service medical records; the medical history obtained from the veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should be asked whether it is at least as likely as not (a 50 percent or more likelihood) that that the veteran's respiratory disabilities (to include asthma and sinusitis) are causally linked to service. The clinician is advised that an opinion of "more likely" or "as likely" would support the veteran's claim of a causal relationship, whereas "less likely" would weigh against the claim. The clinician is also requested to provide a rationale for any opinion expressed. 3. After completion of the above, the RO should review the expanded record and determine (under a merits analysis) if service connection is warranted for any respiratory disabilities (to include asthma and sinusitis). The veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs