Citation Nr: 0814718 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 92-06 250 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for claimed joint problems. 2. Entitlement to an initial higher rating in excess of 10 percent for the service-connected sinusitis with headaches, beginning on October 25, 1999. 3. Entitlement to an initial compensable rating for the service-connected lumbosacral paraspinous strain, prior to October 25, 1999. 4. Entitlement to an initial higher rating in excess of 10 percent for the service-connected lumbosacral paraspinous strain, between October 25, 1999 and November 16, 2004. 5. Entitlement to an initial higher rating in excess of 20 percent for the service-connected lumbosacral paraspinous strain, beginning on November 16, 2004. 6. Entitlement to a higher initial rating in excess of 10 percent for the service-connected degenerative disc disease (DDD) of the cervical spine, prior to November 16, 2004. 7. Entitlement to a higher initial rating in excess of 20 percent for the service-connected DDD of the cervical spine, beginning on November 16, 2004. 8. Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had verified active service from August 1988 to March 1991 with prior active duty of 28 years and 24 days. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 1991 RO rating decision. As the claims on appeal involve a request for higher initial rating following the grant of service connection, the Board has characterized those issues in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing an initial rating claim from a claim for an increased rating for disability already service-connected). In a November 2003 Supplemental Statement of the Case (SSOC) the RO granted the veteran an initial 10 percent disability rating for his service-connected lumbosacral paraspinous strain, effective on October 25, 1999, and an initial 10 percent disability rating for his service-connected sinusitis with headaches, effective on October 25, 1999. In a July 2005 RO rating decision the RO granted the veteran a 20 percent disability rating for his service-connected lumbosacral paraspinous strain, effective on November 16, 2004, and a 20 percent disability rating for his service- connected DDD of the cervical spine, effective on November 16, 2004. The Board notes that inasmuch as higher ratings for the service-connected disabilities are available, and inasmuch as a claimant is presumed to be seeking maximum available benefit for a given disability, the claims for higher ratings, as reflected on the title page, remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). (The Board notes in this regard that the veteran recently requested that the claim for an increased rating for the service-connected sinusitis with headaches be withdrawn. However, to the extent that the action taken hereinbelow is favorable to the veteran, the Board will process with appellate handling of this matter.) (In addition, given the special circumstances of this case, the Board will address the now inferred issue of increased compensation in the form of a total rating based on individual unemployability due to service-connected disability.) In a subsequent rating action in December 2005, the RO also assigned a 60 percent rating for the service-connected arteriosclerotic heart disease. In November 1992, May 1997, May 2004, and December 2005 the Board remanded the issues on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In recently received private medical evidence, the veteran was noted to have undergone surgery for lumbar spine degenerative disc disease in March 2005. The veteran has also present recent assertions that he is precluded from working as the result of his heart disease, bladder cancer and back problems. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The veteran is not shown to have identified or otherwise manifested any joint disorder other than the already service connected for osteoarthritis of the left hand, osteoarthritis of the right hand, left knee arthritis, right elbow epicondylitis, and left elbow epicondylitis. 3. Beginning in November 2004, the service-connected sinusitis with headaches is shown to have been productive of a disability picture that more nearly approximates one manifested by three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment or more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 4. Beginning in April 1991, the service-connected lumbosacral paraspinous strain is not shown to have been productive of any limitation of motion or characteristic pain on motion of the low back. 5. From October 25, 1999 to November 16, 2004, the service- connected lumbosacral paraspinous strain is not shown to have been productive of disability picture reflective of more than slight limitation of motion or muscle spasm or forward flexion of the thoracolumbar spine greater than 30 degrees but not more than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 6. Beginning on November 16, 2004, the service-connected lumbosacral paraspinous strain is not shown to been productive of a disability picture reflective of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 7. Beginning in October 1999, the service-connected DDD of the cervical spine is shown to have been productive of a disability picture that more nearly approximated that of moderate limitation of motion or functional loss to pain. 8. The service-connected DDD of the cervical spine currently is not shown to cause limitation of forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. 9. The veteran currently is shown to be prevented from performing substantially gainful employment consistent with his educational and work background due to his multiple service-connected disabilities. CONCLUSIONS OF LAW 1. The veteran is not shown to have a joint disability other than that already service-connected due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2007). 2. The criteria for the assignment of an increased rating of 30 percent for the service-connected sinusitis with headaches are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, 4.97 including Diagnostic Code 6510 (2007). 3. The criteria for the assignment of an initial compensable rating for the service-connected lumbosacral paraspinous strain, prior to October 25, 1999, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a including Diagnostic Codes 5293, 5295 (2007). 4. The criteria for the assignment of a rating in excess of 10 percent for the service-connected lumbosacral paraspinous strain, beginning on October 25, 1999 to November 16, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a including Diagnostic Codes 5237, 5243, 5293, 5295 (2007). 5. The criteria for the assignment of a rating in excess of 20 percent for the service-connected lumbosacral paraspinous strain, on and after November 16, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a including Diagnostic Codes 5237 (2007). 6. The criteria for the assignment of an increased initial rating of 20 percent for the service-connected DDD of the cervical spine, beginning in October 1999, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a including Diagnostic Codes 5243, 5290 (2007). 7. The criteria for the assignment of a rating in excess of 20 percent for the service-connected DDD of the cervical spine on and after November 16, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a including Diagnostic Codes 5243 (2007). 8. The criteria for the assignment of a total rating based on individual unemployability due to the veteran's service- connected disabilities are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.16, 4.40, 4.45 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. In December 2002, after the rating decision on appeal, the RO sent the veteran a letter informing him that to establish entitlement to service-connected compensation benefits the evidence must show credible supporting evidence of a disease or injury that began in or was made worse during service, or that there was an event in service which caused injury or disease; a current physical or mental disability; and a relationship between the current disability and an injury, disease or event in service. In May 2004, after the rating decision on appeal, the RO sent the veteran a letter advising him that in order to support a claim for higher evaluation for a service-connected disability, the evidence must show that the disability had become worse; the veteran had an opportunity to respond prior to the issuance of the July 2005 SSOC. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claims for service connection and higher initial ratings and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the December 2002 letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). A May 2004 letter, a September 2004 letter, and a September 2007 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letters also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant 's possession that pertains to the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. The Board notes that the record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support his claims and of the evidence of record. The Board finds that he has accordingly been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that the lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, the delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claims were fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claims on appeal, and the veteran was afforded ample opportunity to submit such information and/or evidence. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below- that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the in rating cases, a claimant must be informed of the rating formulae for all possible schedular ratings for an applicable rating criteria. As regards the claim for increase on appeal, the Board finds that this was accomplished in the October 1991 Statement of the Case (SOC), which suffices for Dingess. More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the first Dingess element (veteran status) is not at issue, and as noted above the December 2002 letter advised the veteran of the second and third Dingess elements (existence of a disability and connection between the veteran's service and that disability). In regard to fourth and fifth Dingess elements (degree of disability, and effective date pertaining to the disability), the RO advised the veteran of these elements in September 2007. There is accordingly no possibility of prejudice under the notice requirements of Dingess as regards a claim for increased rating. With regard to the increased evaluation claims included in this decision, the Board is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that: (1) VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA 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; (2) 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 of 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; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the Board finds that the December 2002, May 2004, September 2004, and September 2007 VCAA letters were in substantial compliance with the first and fourth requirements of Vazquez-Flores to the extent that the veteran was notified that he needed to submit evidence of worsening that could include specific medical evidence, as well as lay evidence from other individuals. The Board is aware that the December 2002, May 2004, September 2004, and September 2007 VCAA letters did not provide the type of notification set forth in the second and third requirements of Vazquez-Flores. However, the veteran's VA examinations involved studies that paralleled the relevant diagnostic criteria. These studies, as well as the veteran's access to his VA examination reports reflect that a reasonable person could have been expected to understand in this case what was needed to substantiate the claim. Moreover, as the veteran discussed his service-connected disability in terms of relevant symptomatology in his statements, and as he described the functional effects of his disabilities on his everyday life in support of his claims during his examinations, the Board is satisfied that he had actual knowledge of what was necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Finally, the Board notes that the initial notification of the applicable rating criteria in the various SOCs and SSOCs representing VA action that served to render any pre- adjudicatory notice error non-prejudicial. Vazquez-Flores, slip op. at 9. For all of these reasons, the Board finds that any notice errors with regard to the second and third requirements of Vazquez-Flores are not prejudicial, inasmuch as they did not affect the "essential fairness of the adjudication." Sanders v. Nicholson, 487 F.3d at 889. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claims on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. Neither the veteran nor his representative has identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The veteran was afforded VA examinations in April 1991, August 1993, January 1995, October 1999, May 2003, November 2004, and September 2007. Finally, the veteran was advised of his right to a hearing before the RO and/or before the Board, but he waived that right. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims for service connection and higher initial ratings. II. Analysis I. Service Connection for Claimed Joint Disease Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). The Board asked, in November 1992, May 1997, May 2004, and December 2005, that the veteran clarify which joints he claimed should be service connected and the nature of the disability affecting each. However, the veteran has not responded or otherwise clarified the nature of his claim. The veteran is already service connected for osteoarthritis of the left hand, osteoarthritis of the right hand, left knee arthritis, right elbow epicondylitis, and left elbow epicondylitis. The Board notes that under 38 U.S.C.A. § 5107 except otherwise as provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. Without further clarification of which joints that the veteran claims are due to service the Board can not grant service connection. In addition, the Board notes that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). At the September 2007 VA joint examination ,the examiner did not opine if any current condition was related to service. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. However, in this case, the Board finds that its request basically was met because the RO was only directed to contact the veteran to clarify which joints he claimed should be service connected, the nature of each development, and then conduct all appropriate development; therefore, without more from the veteran, no opinion was requested or required as further development of the specified claim was warranted. Given these facts, the Board finds that service connection for claimed joint disorders must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). II. Disability Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. §§ 3.102, 4.3 (2006). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (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, 21 Vet. App. 505 (2007). The analysis in the following decisions is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A. Service-connected Sinusitis with Headaches Under 38 C.F.R. § 4.97, Diagnostic Code 6510 (pansinusitis), is to be rated under the General Rating Formula for Sinusitis. The General Rating Formula for Sinusitis provides a noncompensable (no percent) rating for sinusitis that is detected by X-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. At the October 1999 VA examination, the veteran described consistent symptoms of nasal obstruction, morning facial pain or headaches, which went away after awhile, and more severe headaches about twice a month that lasted for a few days at a time, and sinusitis infectious episodes, characterized by more severe episodes headaches and production of green nasal discharge or post nasal drip. He used an over the counter nose spray every day. The examiner diagnosed the veteran with chronic rhinitis with intermittent episodes of sinusitis. At the November 2004 VA examination, the veteran reported having nasal blockages with purulent drainage, congestion, pressure around the cheeks and forehead four times a year. The veteran used a decongestant for treatment and once a year had antibiotic therapy. It was noted that he had purulent rhinitis and sinusitis 3 to 4 a year. The examiner stated that the veteran had 20 to 30 percent mild obstruction, with dryness. At the September 2007 VA examination, it was noted the veteran's sinus issues were intermittent with remissions. There was no medical history of hospitalization, surgery, trauma, neoplasm, nasal allergy or osteomyelitis. There was a history of sinusitis; however, the diagnosis was not made by x-ray studies or a history of incapacitating or non- incapacitating episodes. There were no current rhinitis symptoms or sinus symptoms, nor did he have trouble breathing. The examiner stated that the paranasal sinuses were normal; there were no air fluid levels, areas of opacification, or evidence of bony destruction. The examiner also noted that the veteran's headaches became progressively worse since onset and that for treatment he took over the counter Tylenol three times a week. Since November 2004 The June 1991 RO rating decision assigned a noncompensable rating for the service-connected sinusitis with headaches, effective on April 1, 1991, the date of the claim. The November 2003 SSOC assigned a 10 percent rating for his service-connected sinusitis with headaches, effective on October 26, 1999, the date of the VA examination showing an increase in disability. Based on a careful review of the November 2004 and September 2007 VA examination findings, the Board finds that the service-connected sinusitis with headaches is shown to have more closely resembled the criteria for a 30 percent for this period. Beginning with the November 2004 examination, service- connected disability picture is found to equate with one manifested by three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment or more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. For all the foregoing reasons, the Board finds that an increased rating of 30 percent, but not higher for the service-connected sinusitis with headaches is currently warranted. B. Service-connected Lumbosacral Paraspinous Strain The veteran asserts that his service-connected lumbosacral paraspinous strain warrants a compensable rating prior to October 25, 1999, a rating in excess of 10 percent from October 25, 1999 to November 16, 2004, and a rating in excess of 20 percent beginning on November 16, 2004. During the pendency of this appeal, the criteria for evaluating disorders of the spine have been substantially revised. The first set was established through September 22, 2002 and then revised beginning on September 23, 2002; the newest version became effective on September 26, 2003. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. VA General Counsel found that the amended version shall apply only to periods from and after the effective date of the amendment. See VAOPGCPREC 7-2003 (Nov. 19, 2003). The prior version shall apply to periods preceding the amendment but may also apply after the effective date of the amendment. VAOGCPREC 3-2000 (Apr. 10, 2000) (see also 38 U.S.C.A. § 5110(g) (a liberalizing law shall not be earlier than the effective date thereof)). See 38 C.F.R. § 3.114 and Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board notes that, since the veteran's claim was filed in September 1999, it must be evaluated under different versions of the criteria. Most recently, the diagnostic criteria for evaluating spine disorders have recently been revised, effective on September 26, 2003. 68 Fed. Reg. 51454-51458 (August 27, 2003). Under the prior criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003), a 10 percent evaluation was assigned for slight limitation of motion of the lumbar spine. A 20 percent evaluation was warranted for moderate limitation of motion, while a 40 percent evaluation contemplated severe limitation of motion. Under the prior criteria of Diagnostic Code 5295, addressing lumbosacral strain, a noncompensable rating was warranted for lumbosacral strain with slight subjective symptoms only. A 10 percent disability rating was warranted for lumbosacral strain with characteristic pain on motion. A 20 percent evaluation was warranted for muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in the standing position. A 40 percent evaluation was in order for severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Under the recent revisions (Diagnostic Codes 5235-5242), a 10 percent evaluation is in order for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is in order for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. Under these revisions, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The Board notes that the terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board notes that VA must consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of range of motion. DeLuca, 8 Vet. App. 202 (1995). Functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant. See 38 C.F.R. § 4.40. At the May 1991 VA examination, the veteran reported having to be very careful when he moved and moving gingerly; however, he had basically a normal range of motion and minimal difficulty when he moved from a sitting to lying and lying to sitting positions. The deep tendon reflexes were present; no sensory loss was noted, and the straight leg raising test was negative. The VA examiner at the August 1993 examination found that there was low back/mid thoracic pain with no radiculopathy. The January 1995 VA examination reported that the veteran had early degenerative arthritis of his lumbar spine. In October 1999, the veteran stated at his VA examination that, when he coughed and sneezed, it aggravated his lower back. He reported having fatigue and weakness when he lifted; there was no radiation, extremity pain or paraesthesias. On examination, the veteran's gait was normal; there was slight discomfort on midline percussion of the lower lumbar spine. There was slight tenderness to palpation of the lower thoracic plus lumbar musculature. There were no muscle spasms. His range of motion for flexion was to 90 degrees, extension was to 25 degrees, side bending was to 20 degrees, and there were no complaints of pain. The examiner rated the veteran's functional impairment as mild but could not state it in terms of degrees of additional loss, due to the objective nature of the factors. At the May 2003 VA examination, his back was noted to hurt every day with pain increased when he sneezed and coughed. He also had pain in right or left buttocks and a daily ache from the back of the left thigh to the knee. There was no numbness, tingling or flare-ups. The veteran's gait was normal; there was some tenderness to palpation of the right and left paralumbar muscles, very slight tenderness to the right and left mid buttock, some tenderness left greater than right posterior superior iliac spine area. He did not have muscle spasms, but there was some complaint of pain in the midline percussion lumbar spine. His patellar reflexes were 2/4, and his Achilles were 1-2/4 bilaterally. The veteran's range of motion for flexion was 90-95 degrees, extension was 20 degrees, bilateral side bending was 20 degrees, and there were complaints of pain at terminal degrees. The examiner stated that functional impairment was rated as mild plus with loss in degrees for extension of 5 to 10 degrees and side bending of 5 to 10 degrees, each way. The veteran had a VA examination in November 2004, and an MRI study in September 2004 that identified facet and ligament flavum hypertrophy, a small left synovial cyst that produced severe canal stenosis at L3-4. There were mild degenerative changes that produced mild left L4-5 neural foraminal narrowing. There were no acute disk protrusions. On examination, the veteran could not stand straight, had slight lumbar curves, and was slightly bent forward. His range of motion for lumbar flexion was 50 degrees, extension was to 10 degrees, deviation right and left was 30 degrees, and rotation was 130 degrees. The veteran had pain at the extremes of motion and was quite tender at the lumbosacral area and both buttocks. No lumbar spasms were noted. He had physiological reflexes of both lower extremities, normal strength and sensation, and bilateral straight leg raising was 65 degrees. On the left side, he had radiation of pain down the posterior left thigh. The examiner diagnosed degenerative arthritis and disk disease of the lumbar spine with probable spinal stenosis with radiculopathy. The function of the lower back was moderately limited with pain, more so than can be appreciated with the limited motion and he was able to carry throughout the activities of daily living but was restricted from any activity where he bended, twisted, lifted, or walked or stood for prolonged periods. At the September 2007 VA examination, the veteran reported that his lumbar spine had become progressively worse since onset. His spine was fused at L3 and L4 in 2005. He reported having stiffness and pain that was sharp alternating with fullness and it was moderate in severity of pain and constant pain. He used a cane and was unable to walk more then a few yards. The veteran's thoracolumbar spine was not ankylosed. For flexion, the active range of motion was from 0 degrees to 60 degrees, pain began at 60 degrees and ended at 55 degrees, and his passive range of motion was from 0 degrees to 70 degrees, pain began at 60 degrees and ended at 55 degrees. For extension, the active and passive range of motion was from 0 degrees to 30 degrees. For lateral flexion on his left side, his active range of motion was from 0 degrees to 20 degrees; pain began at 15 degrees and ended at 10 degrees. The passive range of motion was from 0 degrees to 30 degrees; pain began at 15 degrees and ended at 10 degrees. For lateral flexion on the right side, his active and passive range of motion was from 0 degrees to 30 degrees. For lateral rotation, his range of motion was from 0 degrees to 30 degrees, pain began at 25 degrees and ended at 20 degrees, and passive range of motion was from 0 degrees to 30 degrees, pain began at 25 degrees and ended at 20 degrees. In addition, his resisted isometric movements were normal; there was pain on active motion, passive motion, and repetitive use. His lumbar spine imaging series revealed surgical fusion at L3 and L4 with multiple screws in place and no evidence of compression fractures or spondylolisthesis. The pedicles and sacroiliac joints were intact. He was diagnosed with early degenerative osteoarthritis without compression fractures. Prior to October 25, 1999 The June 1991 RO rating decision assigned a noncompensable rating effective on April 1, 1991. After carefully reviewing of the May 1991, August 1993 and January 1995 VA examination findings in light of the applicable rating criteria, the Board finds that the service- connected lumbosacaral paraspinous strain does not meet the criteria for a higher 10 percent disability rating, since there is no medical evidence of lumbosacral strain with characteristic pain on motion. In addition, there was not diagnosis of intervertebral disc syndrome. The service-connected lumbosacral paraspinous strain was not shown to have additional limitation of function due to fatigue, weakness, pain, or lack of endurance. For this period of the appeal, the claim for a compensable rating for the service-connected lumbosacral paraspinous strain must be denied. Between October 25, 1999 and November 16, 2004 The RO assigned a 10 percent rating for his service-connected lumbosacral paraspinous strain beginning on October 25, 1999. In comparing the October 1999 and May 2003 VA examinations to the applicable rating criteria, the service-connected lumbosacral paraspinous strain is not shown to warrant a rating higher than the currently assigned 10 percent for the period of this appeal. Under the old criteria, the service-connected disability picture did not warrant a higher rating since the veteran did not manifest findings of moderate limitation of motion or muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in the standing position. The veteran was not diagnosed with intervetebral disc syndrome. Under the revised criteria, the veteran does not warrant higher than a 10 percent rating because he is not shown to experience incapacitating episodes for at least two weeks but less than four weeks in a twelve month period. Under the newer criteria, the service-connected thorcolumbar disability is not shown to be productive of a limitation of forward flexion of the thoracolumbar spine greater then 30 degrees but not greater than 60 degrees. The Board notes that VA must consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of range of motion. DeLuca, supra. Functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant. See 38 C.F.R. § 4.40. The service-connected lumbosacral paraspinous strain had some weakness; however, the medical evidence does not show additional limitation of function due to fatigue, weakness, pain, or lack of endurance is not shown. The currently assigned 10 percent rating already contemplates the pain on limitation of motion and does not warrant an additional rating under DeLuca. For this period of the appeal, without showing of intervertebral disc disease, a rating in excess of 10 percent for the service-connected lumbosacral paraspinous strain must be denied. Since November 16, 2004 The RO assigned a 20 percent rating for the service-connected lumbosacral paraspinous strain, effective on November 16, 2004. In comparing the November 2004 and September 2007 VA medical examination findings to the latest version of the rating criteria, the service-connected thoracolumbar spine disability does not warrant a rating higher than the currently assigned 20 percent for this period of this appeal. Under the newer criteria, the service-connected low back disability is not shown to limit or restrict forward flexion of the thoracolumbar spine to 30 degrees or less. The service-connected lumbosacral paraspinous strain produced some weakness, but additional limitation of function due to fatigue, pain, or lack of endurance to warrant a higher rating is not demonstrated. The currently assigned 20 percent rating already contemplates the pain on limitation of motion and does not warrant an additional rating under DeLuca. Considering the medical evidence of record for this period of the appeal, without addressing the current extent of any related degenerative disc disease, an increased rating higher than 20 percent for the service-connected lumbosacral paraspinous strain must be denied. C. Service-connected DDD of the Cervical spine As noted, the criteria for evaluating spine disorders, including those involving the cervical area, have been substantially revised. For the period through September 22, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002), a 10 percent evaluation was warranted for mild intervertebral disc syndrome. A 20 percent evaluation was in order for moderate intervertebral disc syndrome, with recurring attacks. A 40 percent evaluation contemplated severe intervertebral disc syndrome, characterized by recurrent attacks with intermittent relief. A 60 percent evaluation was warranted for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy which 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. For the period beginning on September 23, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 10 percent evaluation is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent evaluation contemplates intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. Moreover, the remaining diagnostic criteria for evaluating spine disability have recently been revised, effective on September 26, 2003. Under the prior criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003), addressing limitation of motion of the cervical spine, a 10 percent evaluation was assigned in cases of slight limitation of motion. A 20 percent evaluation was in order for moderate limitation of motion, while a 30 percent evaluation was warranted for severe limitation of motion. Under the recent revisions (Diagnostic Codes 5235-5242), a 10 percent evaluation is in order for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or a vertebral body fracture with loss of 50 percent or more of height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned in cases of forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is in order for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. The Board notes that the terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board notes that VA must consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of range of motion. DeLuca, 8 Vet. App. 202 (1995). Functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant. See 38 C.F.R. § 4.40. At the veteran's May 1991 VA examination he stated when he turned his head in certain directions it caused pain; however, his range of motion was normal and only when he looked up or rotated did the pain occur. The deep tendon reflexes in the upper extremities were normal, and there was no objective sensory loss. The August 1993 VA examiner found that the veteran had full range of motion with a moderate degree of pain. A January 1995 VA examination found that the veteran had early degenerative arthritis of his cervical spine. At the October 1999 VA examination, the veteran reported that his neck hurt almost all the time. There was no radiation of the pain or nerve loss. His motion was limited by pain with flexion to 35 degrees, extension to 60 degrees, right lateral rotation to 45 to 50 degrees, left lateral rotation to 35 degrees, right lateral flexion to 30 degrees, and left lateral flexion was to 35 degrees with some complaint of discomfort at the terminal degrees. His functional impairment was rated between mild and moderate but could not be stated in terms of additional loss in degrees since he stopped at the point of discomfort and other subjective factors were involved. In May 2003, a VA examination noted daily pain and restricted motion. There was no upper extremity pain radiation; the pain went from the top of the neck into the bottom of the head region posteriorly and the base of the neck. Every few months the pain became worse to where he did not want to move his neck. His motion was lost by 20 percent; if needed, he could force it. There was no upper extremity numbness or tingling. On examination, there was no tenderness to palpation or muscle spasms. His range of motion was that of flexion to 50 degrees, extension to 40 degrees, right lateral rotation to 40 degrees, left lateral rotation to 45 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and there were some complaints of pain at the terminal degrees. The VA examiner stated that, with flare-ups, there was likely to be some additional range of motion loss that it was quite subjective and could not be stated or estimated in terms of degrees of additional range of motion. He did opine that the functional impairment of the cervical spine was rated as close to moderate, with loss in degrees motion for flexion of 10 degrees, extension of 5 degrees, right lateral rotation of 20 degrees, left lateral rotation of 15 degrees, right lateral flexion of 20 degrees, and left lateral flexion of 15 degrees. At the November 2004 VA examination, the veteran reported constant pain in his neck that was aggravated by any turning or with extension. The pain radiated to both sides at the base of his neck. The head compression test was positive for pain over the right side of the C7 spinous processes, and he was quite tender there. His neck range of motion was noted to be painful with an extension of 10 degrees, flexion of 30 degrees, deviation to 20 degrees each way, and rotation to 50 degrees each way. The VA examiner diagnosed degenerative arthritis and disk disease of the cervical spine with no radiculopathy. His neck symptomatology was adequately explained with the limited motion in the neck with the ability to carry throughout the activities of daily living but restricted of any activity where he bent, twisted, lifted or stood and walked for prolonged periods. The September 2007 VA examination reported that the spine had been fused at L3 and L4 in 2005. The examiner stated that the veteran's cervical spine was not ankylosed. His range of motion for flexion, extension and lateral flexion was from 0 to 45 degrees, actively and passively. His lateral rotation was from 0 degrees to 80 degrees for active and passive motion. His resisted isometric movement was normal, and there was no pain on active motion, passive motion, repetitive use, or additional loss of motion after repetitive use. The imaging reports revealed spondylosis of the cervical spine most marked at levels C6 and C7 manifested by osteophytes and decreasing the interspace. There were no compression fractures or evidence of subluxation. Prior to November 16, 2004 The RO assigned an initial 10 percent rating for the service- connected cervical spine, effective on April 1, 1991. In comparing the May 1991, August 1993, January 1995, and October 1999 VA examination findings to the applicable rating criteria, the Board finds that the service-connected cervical spine disability is initially shown to have more closely approximated the rating criteria for 20 percent under the older version in October 1999. Prior to that time, no more slight functional loss due to pain was noted. The October 1999 VA examination opined for the first time that the functional loss of the cervical spine was approaching that of a moderate degree. However, the Board finds that the service-connected cervical spine disability picture does not show severe limitation of motion or forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. The service-connected cervical spine disability did not shown any additional limitation of function due to fatigue, weakness, pain, or lack of endurance. The currently assigned 20 percent rating already contemplates any pain on limitation of motion and does not warrant an additional rating under DeLuca. Given these facts, the service-connected cervical spine disability picture warrants a 20 percent rating, but not higher beginning in October 1999. Since November 16, 2004 The RO assigned an initial 20 percent disability rating for his service-connected cervical spine, effective on November 16, 2004. In comparing the November 2004 and September 2007 VA examination finding to the applicable newer version of the rating criteria, the service-connected cervical spine is not shown to warrant a rating higher than the currently assigned 20 percent for the period of the appeal after November 2004. Under the newer criteria, his service-connected cervical spine disability picture is not shown to be productive of forward flexion of the cervical spine limited to less than 15 degrees or to equate with that of favorable ankylosis of the cervical spine. The service-connected cervical spine did not have additional limitation of function due to fatigue, weakness, pain, or lack of endurance. The currently assigned 20 percent rating already contemplates any pain on limitation of motion and does not warrant an additional rating under DeLuca. In addition, the Board finds no current basis in the evidentiary record for the assignment of a rating higher than 20 percent under the criteria for intervertebral disc syndrome in this case. Considering the medical evidence of record for the period of the appeal, an increased rating higher than 20 percent for the service-connected cervical spine must be denied. D. Total compensation rating based on individual unemployability. In light of the veteran's recently received assertions that he is precluded from working due as at least in part to his service-connected heart disease (now rated as 60 percent disabling) and the cervical spine and low back disability (each rated as 20 percent disabling) and most current medical evidence as presented by his private treating physician, the Board finds that the overall service-connected disability picture is shown to clearly prevent the veteran from working at substantially gainful employment given his educational and occupational background. Accordingly, given the particular circumstances in this appeal, the Board finds that a total compensation rating based on individual unemployment is assignable. ORDER Service connection for claimed joint problems is denied. An increased rating of 30 percent for the service-connected sinusitis with headaches is granted, subject to the regulations controlling disbursement of VA monetary benefits. An initial compensable rating for the service-connected lumbosacral paraspinous strain, prior to October 25, 1999, is denied. An increased rating in excess of 10 percent for the service- connected lumbosacral paraspinous strain, beginning on October 25, 1999 to November 16, 2004, is denied. An increased rating in excess of 20 percent for the service- connected lumbosacral paraspinous strain, on and after November 16, 2004, is denied. An increased rating of 20 percent for the service-connected DDD of the cervical spine, effective beginning in October 1999, is granted, subject to the regulations controlling the award of VA monetary benefits. An increased rating in excess of 20 percent for the service- connected DDD of the cervical spine is denied. A total rating based on individual unemployability due to service-connected disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs