Citation Nr: 1127334	
Decision Date: 07/21/11    Archive Date: 07/29/11

DOCKET NO.  08-21 274	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for sinusitis.

2.  Entitlement to service connection for epistaxis.

3.  Entitlement to an initial compensable rating for the Veteran's service-connected left ear hearing loss.

4.  Entitlement to an increased initial rating for the Veteran's service-connected degenerative arthritis of the cervical spine, currently rated as 10 percent disabling.


ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1984 to January 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating action of the Department of Veterans Affairs Regional Office (RO) in Winston-Salem, North Carolina.  As the Veteran resides in Florida, his claims file remains under the jurisdiction of the RO in St. Petersburg, Florida.

This claim was previously before the Board in January 2010.  At that time, the Board remanded the Veteran's claims for further development.  The Board acknowledges that it has a duty to ensure compliance with its remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance).  

In his July 2008 Substantive Appeal, the Veteran raised the issues of entitlement to service connection for high cholesterol and low testosterone, as well as entitlement to an increased rating for his service-connected tinnitus and chondromalacia of the left knee.  The RO, however, has not yet had a chance to adjudicate these claims.  Thus, the Board finds that the issues of entitlement to service connection for high cholesterol and low testosterone and for an increased rating for tinnitus and a left knee condition have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  



FINDINGS OF FACT

1.  The most probative evidence of record does not indicate that the Veteran currently suffers from sinusitis.  

2.  The most probative evidence of record does not indicate that the Veteran currently suffers from epistaxis.  

3.  A March 2010 audiological evaluation revealed the Veteran to have average puretone threshold in decibels of 29 in his left ear and a speech recognition score of 90 percent.

4.  The Veteran's degenerative joint disease of the cervical spine does not result in forward flexion of 30 degrees or less, a combined range of motion of 170 degrees or less, or muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour. 

CONCLUSIONS OF LAW

1.  The criteria for service connection for sinusitis have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).  

2.  The criteria for service connection for epistaxis have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).  

3.  The criteria for a compensable initial rating for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2010).

4.  The criteria for an initial rating in excess of 10 percent for the Veteran's cervical spine disability have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.40, 4.45, 4.71a, DC 5235-5243 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection Claims

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic; continuity is also required where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In order to grant a service connection claim, the Board must find medical evidence that the Veteran currently suffers from a disability, medical evidence (or, in certain circumstances, lay evidence) of an in service incurrence or aggravation of that disability, and medical evidence of a nexus between the present disability and the disability claimed in service.  Hickson v. West, 12 Vet. App 247, 253 (1999) (citing 38 C.F.R. § 3.303(a)).  

Here, the Veteran seeks service connection for both sinusitis and epistaxis, the latter of which is a hemorrhage from the nose or, colloquially, a nosebleed.  Dorland's Illustrated Medical Dictionary 643 (31st ed. 2007).  For the reasons that follow, however, the Board concludes that service connection for these conditions is not warranted. 
First, the Board notes that there is evidence that the Veteran suffered from both sinusitis and epistaxis during his active service.  Indeed, the Veteran first complained of suffering from sinus congestion in the 1980s.  He was later diagnosed as suffering from both sinusitis and epistaxis.

The Veteran's claim fails, however, because despite the fact that the Veteran suffered from these conditions during his active service, the most probative evidence of record shows that he is not currently suffering from either condition.  

The Veteran underwent two VA examinations relevant to his claims on appeal.  In the first in November 2006, the Veteran spoke of his history of both sinusitis and epistaxis.  Specifically, he mentioned difficulty breathing through his nose, shortness of breath, and hoarseness.  Upon examination, however, the examiner found no evidence that the Veteran was currently suffering from sinusitis.  An examination of the Veteran's mouth, throat, and nose revealed normal findings, and an examination of the sinuses revealed no sinusitis.  X-rays of the Veteran's sinuses were normal.  The examiner thus declined to diagnose the Veteran as suffering from either sinusitis or epistaxis, stating that there was no pathology to render such a diagnosis.  

Given the Veteran's in-service complaints, the Board remanded the claim to allow the Veteran to undergo a second examination, and he attended such an examination in March 2010.  The Veteran was much more detailed in describing his history with sinusitis, stating that he began suffering from symptoms after moving to Texas.  Upon examination, however, this second examiner also did not find that the Veteran was currently suffering from sinusitis or epistaxis.  He wrote that despite the Veteran's in-service complaints of these conditions, there is no evidence to support that these conditions are chronic.  

There is no other information in the Veteran's claims file that is relevant to this claim.  In his November 2007 Notice of Disagreement, the Veteran stated that his conditions began in 2000 when he moved to Texas during his active service.  He acknowledged that the November 2006 examination did not show him to be suffering from these conditions, but stated that his sinuses were not bothering him at that time.  Importantly, though the Veteran discussed his history with these conditions at his VA examination, he did not state that he was currently suffering from either condition, nor did he describe why he believed that his conditions were chronic.  

Again, the Board acknowledges that the Veteran suffered from both sinusitis and epistaxis during his active service.  Service connection, however, requires evidence that the Veteran currently suffers from a disability.  Hickson, 12 Vet. App at 253; 38 C.F.R. § 3.303(a).  "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Here, as neither the medical nor the lay evidence show that the Veteran currently suffers from sinusitis or epistaxis, the Board concludes that service connection for these conditions is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303.

II.  Increased Initial Rating Claims

Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

A review of the history of the Veteran's claims is instructive.  The Veteran sought service connection for his hearing loss and neck disability in October 2006, prior to his retirement.  He underwent VA examinations for each condition, and an April 2007 rating decision established service connection for left ear hearing loss (rated as noncompensably disabling) and degenerative joint disease of the cervical spine (rated as 10 percent disabling).  The Veteran thereafter filed a Notice of Disagreement, and the RO issued a Statement of the Case in May 2008. The Veteran then filed a timely Substantive Appeal.

When these claims first came before the Board in January 2010, the Board remanded them to allow the Veteran to undergo VA examinations to determine the current severity of his service-connected disabilities.  Those examinations were conducted in March 2010, and in May 2011, the Appeals Management Center issued a Supplemental Statement of the Case that left the ratings unchanged.

While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  That being said, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran seeks an increased initial rating for both his left ear hearing loss and his neck condition.  Each claim is evaluated separately below.  

Left Ear Hearing Loss

Claims for increased ratings for hearing loss are governed by a schedule outlined in 38 C.F.R. § 4.85.  The Board undertakes a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Examinations are conducted using the controlled speech discrimination tests in conjunction with the results of the puretone audiometry test.  See 38 C.F.R. § 4.85.  

The results are then analyzed using tables contained in 38 C.F.R. § 4.85, Diagnostic Code 6100.  "Puretone threshold average," as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII.  As the Veteran has only been service connected for the hearing loss he suffers from in his left ear, his non-service connected right ear is assigned a Roman numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f).  

For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86 provides:

(a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately.
(b) When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately.

The Veteran has undergone two VA examinations with respect to his left ear hearing loss.  At the first in December 2006, pure tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
LEFT
15
10
20
50
50

The average decibel threshold was thus 33 (32.5) in the left ear.  Speech audiometry tests revealed a speech recognition ability of 96 percent in the left ear.  

The Veteran underwent a second examination in March 2010, and pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
LEFT
15
10
10
45
50

The average decibel threshold was thus 29 (28.75) in the left ear.  Speech audiometry tests revealed a speech recognition ability of 90 percent in the left ear.  

Under Table VI contained in Diagnostic Code 6100, the left ear average pure tone thresholds and speech recognition scores from the December 2006 examination correspond to Level I, and the thresholds and speech recognition scores from the March 2010 evaluation correspond to Level II.  As the Veteran's right ear hearing loss has not been service-connected, his hearing in that ear is assigned a rating of Level I.  38 C.F.R. § 4.85(f).  The intersection point for both of these Levels under Table VII shows that the hearing loss does not exceed the levels contemplated for the noncompensable rating which the RO assigned.  In addition, an exceptional pattern of hearing loss which would warrant evaluation under 38 C.F.R. § 4.86 is not shown.  As the Veteran's rating is remaining unchanged, staged ratings are inappropriate.  

The Veteran's disability is also not so severe as to warrant an extraschedular rating.  An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations.  38 C.F.R. § 3.321 (2010).  As outlined by the Court of Appeals for Veterans Claims, the Board uses a three-step inquiry to determine whether an extraschedular rating is warranted; "initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability."  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

In this case, the applicable rating criteria are adequate to evaluate the Veteran's disability.  The VA examination found that the Veteran suffers from left ear hearing loss, a symptom that is necessarily contemplated under the applicable rating criteria.  As the Veteran's symptoms are already provided for in the applicable rating criteria, the first threshold of the Thun framework is not met, ending the Board's inquiry.  

Again, the Board finds that the results from the Veteran's March 2010 audiological testing are the most severe, with an average decibel threshold of 29 in his left ear and a speech recognition score of 90 percent.  Given these findings, the Board concludes that the criteria for a compensable rating for the Veteran's left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.85, 4.86, DC 6100.

Degenerative Joint Disease of the Cervical Spine 

The Veteran's cervical spine disability has been rated as 10 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine, codified at 38 C.F.R. § 4.71, DCs 5235-5243.  Pursuant to the General Rating Formula, a 10 percent rating is assigned when forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; when the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height.  Id. 

A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; when the combined range of motion of the cervical spine is not greater than 170 degrees; or when there is 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 rating is assigned either when forward flexion of the cervical spine is 15 degrees or less or with favorable ankylosis of the entire cervical spine.  A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is assigned with evidence of unfavorable ankylosis of the entire spine.  Id.  

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.  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.  Id. at Note (2).  

VA must also analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain.  Spurgeon v. Brown, 10 Vet. App. 194 (1997).

The Veteran has undergone two VA examinations for his cervical spine.  In the first in November 2006, the examiner noted that the Veteran had no complaints of radiating pain on movement.  Muscle spasm was absent, no tenderness was noted, and the Veteran had no ankylosis.  

Range of motion testing revealed that the Veteran had forward flexion of 45 degrees with pain occurring at 40.  The Veteran had extension of 45 degrees with pain occurring at 38 degrees.  The Veteran had right and left lateral flexion of 45 degrees, and right and left rotation of 80 degrees.  Factoring in the limitations of motion based on pain, the Veteran thus had a combined range of motion of 328 degrees.  Repetitive motion resulted in additional pain, but the examiner could not determine any additional loss in range of motion after repetitive testing.  Repetitive motion did not, however, result in fatigue, weakness, lack of endurance, or incoordination.  

The Veteran underwent a second VA examination in March 2010.  The Veteran reported that his neck disability resulted in pain, stiffness, and decreased motion.  He stated that this pain is exacerbated by cold weather, and that while medication helps, it does not completely relieve his pain.  

Upon examination, the examiner noted that the Veteran's posture and head position were normal.  The Veteran had a normal gain, and he had no abnormal spinal curvatures, including lordosis, scoliosis, and ankylosis.  The Veteran suffered from guarding, pain, and tenderness in his neck, but not from spasms, atrophy, or weakness.  

Range of motion testing revealed that the Veteran had forward flexion of the cervical spine of 45 degrees with pain beginning at 40.  The Veteran also had extension of 45 degrees.  He had left and right lateral flexion of 45 degrees in each direction, and he had left and right rotation of 80 degrees each way.  The Veteran thus had a combined range of motion of 335 degrees.  Further, though repetitive motion resulted in pain, it did not result in additional limitation of motion.  

There is no other evidence in the claims file that is relevant to the Veteran's claim for an increased rating for his neck disability.

Based on the results of these VA examinations, the Board finds the 10 percent rating assigned to be appropriate.  Again, a 10 percent rating may be assigned when forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees or when the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees.  38 C.F.R. § 4.71a, DC 5235-5242.  Here, both VA examinations showed that the Veteran's forward flexion was limited by pain to 40 degrees, and each showed his combined range of motion to be 335 degrees or less.  

A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; when the combined range of motion of the cervical spine is not greater than 170 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.  Here, neither examination showed that the Veteran meets any of these criteria.  He had forward flexion in each examination of 40 degrees, higher than 30 degrees.  He had combined ranges of motion of 328 and 335 degrees, far above 170 degrees.  Finally, though the Veteran has guarding, it has not resulted in an abnormal gait or an abnormal spinal contour.  The Veteran thus does not meet the criteria for an increased 20 percent rating.  As there is no evidence that the Veteran's range of motion decreased with repetitive motion, an increased rating under DeLuca is not applicable.  Further, as his symptoms have remained constant, staged ratings are not at issue.  

The Board notes that - in his November 2007 Notice of Disagreement, the Veteran stated that he believed a 25 percent disability rating would be fair, as he would have to live with this condition for the rest of his life and it may prevent his living a more active lifestyle.  The Board is sympathetic to the Veteran's concerns; should his condition deteriorate, he is encouraged to file a claim for an increased rating.  Disability ratings, however, are intended to reflect the current severity of the Veteran's disability, not the degree to which it may affect him in the future.  Francisco, 7 Vet. App. at 58.  Thus, the Board finds the 10 percent rating to be reflective of the current severity of his disability.

This disability is also not severe enough to warrant an extraschedular rating.  The VA examinations showed that the Veteran suffers from pain and decreased range of motion in his cervical spine, and these symptoms are contemplated under the applicable rating criteria for cervical spine disabilities.  Accordingly, the first Thun threshold is not met, and an extraschedular rating is not appropriate.  

In summary the Board finds that the Veteran's degenerative joint disease of the cervical spine does not result in forward flexion of 30 degrees or less, a combined range of motion of 170 degrees or less, or muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour.  Accordingly, the Board concludes that the criteria for an initial rating in excess of 10 percent for the Veteran's cervical spine have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.40, 4.45, 4.71a, DC 5235-5243.

III.  Duties to Notify and to Assist

Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

With respect to the Veteran's claims for an increased initial rating, VA has met its duty to notify.  Service connection for these issues was granted in an April 2007 rating decision.  The Veteran is now appealing the downstream issue of the initial ratings that were assigned.  Therefore, additional VCAA notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

With respect to the Veteran's claims for service connection, the Board notes that the Veteran did not receive notice prior to the initial RO decision in this matter that informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  Instead, the Veteran was first provided with such notice in December 2007, following his submission of a Notice of Disagreement with the RO's April 2007 decision.  

The Board notes that though the Veteran did not receive such notice prior to the RO's first promulgating a decision in this matter, any prejudice resulting from that failure has been overcome.  The Veteran was sent comprehensive notice in December 2007, and his case was thereafter readjudicated.  Further, the Veteran submitted evidence on his own accord, demonstrating actual knowledge of his right to submit evidence to VA.  Given these facts, the Board finds that any prejudice to the Veteran has been overcome.  

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and records of the Veteran's private treatment which he provided.  The Veteran was afforded a VA compensation and pension examination with respect to each of his claims currently on appeal.  

As noted above, this case was previously before the Board in January 2010.  The Board remanded the Veteran's claims in order that he may undergo VA examinations with respect to each of his claims on appeal.  The Veteran underwent three examinations in March 2010, each of which was tailored to the claims currently before the Board.  

Again, the Board must ensure compliance with its remand directives.  Stegall, 11 Vet. App. at 271.  Here, as the Veteran underwent VA examinations for each of his claimed conditions, the Board finds substantial compliance with its January 2010 remand instructions.  D'Aries, 22 Vet. App. at 105.  As the requested development has been completed, the case may proceed without prejudice to the Veteran.  

The Board notes that the evidence already of record is adequate to allow resolution of the appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

ORDER

Service connection for sinusitis is denied.

Service connection for epistaxis is denied.

An initial compensable rating for the Veteran's left ear hearing loss is denied.

An increased initial rating for the Veteran's degenerative arthritis of the cervical spine is denied.  



____________________________________________
MICHAEL E. KILCOYNE 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs