Citation Nr: 1304264 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 07-27 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disorder, including as secondary to the Veteran's service-connected coccyx disability. 2. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected cervical spine disorder. 3. Entitlement to a compensable rating for the Veteran's service-connected sinusitis. 4. Entitlement to a higher initial rating for a left knee disability, rated as 10 percent disabled from February 16, 2006, and 30 percent disabled from April 8, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from May 1962 to June 1988. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board previously remanded this matter in December 2009, September 2011, and April 2012. In April 2009, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ) who has retired from the Board. Since that VLJ would no longer be able to make a decision in the Veteran's appeal, the Veteran was offered an opportunity for another hearing before a VLJ. The Veteran chose to have another hearing and in December 2011, testified at a second travel Board hearing before another VLJ. As a written transcript of that second hearing could not be produced, the Board offered, and the Veteran accepted, a third travel Board hearing, which was conducted by the undersigned VLJ in August 2012. Transcripts of the April 2009 and August 2012 hearings have been associated with the claims file. In regard to the December 2011 and August 2012 hearings, in November 2012 the Veteran was sent a letter advising him that the law requires that a VLJ who conducts a hearing on an appeal must participate in any decision on that appeal, and that when two hearings have been held, the Veteran would be entitled to a hearing before a third VLJ who would participate in a panel decision with the two VLJs who had previously held hearings. The Veteran was offered an opportunity to have a hearing before that prospective third VLJ, but was advised that if he did not respond within 30 days, it would be assumed that he did not want a third hearing. The Veteran did not respond. Regardless, the Board finds that this letter was sent in error. Given that the transcript of the December 2011 hearing could not be produced, there is essentially no record or evidence that could be objectively considered by the VLJ who conducted that hearing. In essence, it is as if it had not been held. As such, there is no need for the VLJ who held the December 2011 hearing to participate in this decision, and therefor, no reason to form a three VLJ panel for this appeal. The Board has reviewed the entire record to include the Veteran's virtual VA claims file. No additional relevant evidence has been included in the claims file since a March 2011 supplemental statement of the case. The issue regarding a higher initial rating for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A chronic lower back disorder was not shown in service; degenerative joint and disc disease of the lower back was not shown until many years after service; and the Veteran's current lower back disorder is not related to a disease or injury of service origin or to a service-connected disorder. 2. The Veteran's cervical spine has not had forward flexion limited to 30 degrees or less, has not had a combined range of motion limited to 170 degrees or less, and has not had severe muscle spasm, severe guarding, ankylosis, or incapacitating episodes as a result of the disability. 3. Prior to August 14, 2012, the Veteran's sinusitis caused occasional headaches and discharge, and involved the infrequent usage of antibiotics for treatment. 4. Since August 14, 2012, the Veteran's sinusitis has caused at least three non-incapacitating episodes per year (but not more than six non-incapacitating episodes per year) characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. A lower back disorder was not incurred in or aggravated by active service, may not be presumed related to service, and is not proximately due to, the result of, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (2012). 2. The criteria for a disability rating in excess of 10 percent, for degenerative joint and disc disease in the Veteran's service-connected cervical spine, have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Diagnostic Codes (DCs) 5235-5243 (2012). 3. Prior to August 14, 2012, the criteria for a compensable disability rating for sinusitis had not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6510-6514 (2012). 4. Since August 14, 2012, the criteria for a 10 percent disability rating, but no higher, for the Veteran's sinusitis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6510-6514 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to these claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO submitted to the Veteran a VCAA letter dated in March 2006. The letter notified the Veteran regarding what information and evidence is needed to substantiate his claim of service connection for a back disorder and his claims for increased ratings for neck and sinus disabilities. The letter notified the Veteran regarding what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The letter included provisions regarding disability ratings and effective dates. The RO mailed the letter to the Veteran prior to the February 2007 rating decision on appeal. See Mayfield, supra. Furthermore, the Veteran's claims have been readjudicated in a subsequent Statement of the Case (SOC) and subsequent Supplemental SOCs (SSOCs). In sum, the Board finds that VA has met its duty to provide VCAA notification to the Veteran regarding the claims on appeal addressed in this decision. With regard to the duty to assist, the Veteran's service treatment records (STRs) have been secured. The RO obtained relevant private and VA treatment records and reports. The Veteran underwent VA compensation examination into his claims in January 2007, April 2010, and January 2011. As will be discussed in the decision below, the examinations are found to be adequate for rating purposes. The reports indicate that each examiner reviewed the Veteran's medical history and complaints, made clinical observations, and rendered assessments regarding whether the Veteran has a back disorder related to service or to a service-connected disability, and regarding the severity of his neck and sinus disorders. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). As the most-recent VA examination addressing the Veteran's service-connected neck and sinuses is dated in April 2010, the Board has considered whether a remand of these issues would be appropriate for new examinations. See Green v. Derwinski, 1 Vet. App. 121 (1991) (the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). However, the Board finds new examinations unwarranted because no evidence of record indicates a worsening of the neck and sinus disorders since the April 2010 examination. Though the Veteran indicated during the August 2012 hearing that his neck had "[g]otten a little worse" since his January 2007 VA examination, during the hearing, he described basically the same severity of symptomatology noted in the April 2010 VA examination report, and he gave no indication that it had gotten worse since that April 2010 examination. As such, a new examination is unnecessary for the claims to increased ratings. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (the mere passage of time does not automatically render an examination inadequate; rather, there must be evidence of a change in the condition of an allegation of worsening of the condition). The report of the April 2010 examination - along with the report of the January 2007 examination, private and VA treatment records, and lay statements from the Veteran and his spouse - is sufficient to assist the Board in fairly deciding the Veteran's claims. In sum, the record is sufficiently developed for determinations at this time. The Board will rely on the record to determine the claim to service connection and the claims to higher disability ratings. Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. The Merits of the Claim to Service Connection The Veteran claims service connection for a lower back disorder. He maintains that he incurred the disorder during service, to include as due to a January 1988 fall in which he injured his coccyx. Alternatively, he maintains that he developed a back disorder as a result of limitations associated with the coccyx disorder, which has been service connected since July 1988. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders such as arthritis will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that the provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the revised provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995), the revised provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. The record indicates that the Veteran's secondary service connection claim for a lower back disorder was filed in February 2006, prior to the effective date of the revised regulation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In this matter, the evidence of record demonstrates that the Veteran has a current lower back disorder. VA compensation examination reports dated in January 2007 and January 2011 note multi-level lumbar degenerative joint and disc disease. Private and VA medical evidence dated since October 2005 also notes degenerative changes in the Veteran's lumbar spine. Moreover, the Veteran underwent lumbar spine surgery (right-sided partial decompressive laminectomy L3-4 and L4-5 with neural foraminotomy) in January 2008. The evidence of record also demonstrates that the Veteran complained of back problems during service. Multiple STRs, dated in 1969, 1982, and 1986, note complaints related to low back muscle strains. Further, the evidence documents that the Veteran fell and injured his coccyx during service in January 1988. As to whether the Veteran's current lumbar degenerative joint and disc disease relates either to service or to the service-connected coccyx disability, the preponderance of the evidence is against the Veteran's claim for service connection. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The record indicates that the Veteran did not incur a chronic lower back disorder during service, did not develop degenerative changes in his lumbar spine within one year of his June 1988 discharge from service, did not experience a continuity of symptomatology of a lower back disorder in the years following service, did not develop degenerative changes in his lumbar spine as a result of disability associated with the coccyx, and does not experience aggravation of his lumbar spine disability due to disability associated with the coccyx. 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310. The earliest post-service medical evidence of record indicating a lower back or spine disorder is noted in a VA radiology report dated in May 1997. This record, along with September 1999 and September 2000 VA treatment records, indicated complaints of lower back pain. Nevertheless the May 1997 report found the Veteran's lumbar spine to be within normal limits. The evidence of record dated between the Veteran's discharge from service in June 1988 and the May 1997 complaint of back pain is entirely negative for a lower back disorder. The Veteran did not indicate a lower back problem in July 1988, at which time he filed several claims for service connection. The Veteran did not indicate a lower back problem in several subsequent claims for service connection, filed in June 1994 and June 2000. A lower back disorder is not noted in VA compensation examination reports dated in October 1988 and March 1995. Private medical evidence dated in the 1980s and 1990s, which addresses various orthopedic disorders, does not note complaints, diagnoses, or treatment for a lower back disorder. Moreover, the Board notes that, though the Veteran's retirement report of medical history was completed in December 1987 (prior to his January 1988 coccyx injury), it is nevertheless of evidentiary value that he did not indicate either a current, or history of, a lower back disorder. The earliest post-service medical evidence indicating a lower back disorder, in May 1997, is dated nearly nine years following retirement from service. 38 C.F.R. §§ 3.303, 3.307, 3.309; Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). Furthermore, no medical evidence indicates a nexus between the back disorder and service or a service-connected disorder. Rather, the only medical professionals to comment directly on the claim disagree with the Veteran's assertions. In the January 2007 and January 2011 VA reports, each examiner stated that the Veteran's lumbar disability was less than likely related either to service or to the coccyx disorder. Each examiner indicated a review of the claims file, and an evaluation of the Veteran. Each examiner explained his opinion, moreover. The January 2007 VA examiner indicated that the Veteran's lumbar spine disorder was likely not related to service because the evidence did not indicate a chronic in-service back disorder. The examiner also noted that the Veteran injured his back in civilian employment following retirement from service. The examiner found the lumbar disability likely unrelated to the coccyx disorder because "the coccyx fracture should heal" and "I would not expect it to lead to any degenerative changes of the low back." The examiner further noted the lack of evidence indicating that the coccyx disorder caused an abnormal gait or other chronic problems. The January 2011 VA examiner supported his opinion by stating that the Veteran has not experienced adverse symptoms associated with the coccyx "since late 1988." See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). On the issue of medical nexus, the Board has closely considered the lay statements of the Veteran. The Board particularly notes the Veteran's testimony before the Board in April 2009 and August 2012. As a layperson, the Veteran is competent to attest to observable symptomatology. See Layno, supra. But the Board also notes that laypersons are generally not capable of opining on matters requiring medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Here, the Veteran is competent to attest to what he felt in his lower back area during service and after service. But he does not have the training and expertise to provide medical evidence connecting service to the symptoms, or connecting the symptoms to the disorders at issue. The Veteran's degenerative joint and disc disease of the lumbar spine concerns an internal disease process that is beyond his capacity to observe. He is simply not competent to provide evidence that what he felt in his back during service, or has felt since service, resulted in degenerative changes. Of more probative value is the medical evidence, which clearly indicates no relationship between the degenerative changes and the Veteran's service, or his service-connected coccyx disorder. See Espiritu, supra. The Board has also considered the Veteran's assertions during his August 2012 hearing that a private physician - Dr. Witt - attributed the lumbar disability to the service-connected coccyx injury. In reviewing the record, the Board did not locate a nexus opinion from Dr. Witt. The Board did note in the record the January 2008 operation report of the Veteran's laminectomy, which was performed by Dr. Witt. But neither this report, nor the many private treatment records included in the claims file, contains an opinion regarding etiology of the Veteran's lumbar spine disability. The Board further notes that the asserted nexus opinion from Dr. Witt is not noted in the Veteran's April 2009 Board hearing, or in any other statement of record prior to August 2012. In sum, the record supports the Veteran's assertion that he has a current lower spine disorder, that he incurred a coccyx disorder during service, and that he experienced lower back pain during service. However, the preponderance of the evidence of record indicates that the current degenerative changes in the Veteran's lower back are unrelated to service, and to the service-connected coccyx. See Alemany, supra. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. III. The Claims for Higher Disability Ratings The Veteran seeks higher disability ratings for neck and sinus disorders. He has been service connected for a neck disability since July 1988, and has been service connected for a sinus disorder since June 1994. The neck disability has been rated as 10 percent disabled since June 2000, while the sinus disability has been rated as 0 percent disabled since June 1994. On February 16, 2006, VA received the Veteran's claims for increased rating for these disabilities. In the February 2007 rating decision on appeal, the RO denied his claims. In this decision, the Board will consider whether higher ratings have been warranted from February 16, 2005 (one year prior to the date of the Veteran's claims for increased ratings) at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings); see also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. The Board will address the Veteran's disorders separately below. Neck Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Disability of the spine is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Evaluations of 10, 20, 30, 40, and 60 percent are authorized for such cervical spine disorders as limitation of motion, intervertebral disc syndrome (IVDS), and ankylosis. As the Veteran has been rated as 10 percent disabled during the appeal period, the Board will limit its analysis of the rating criteria to whether the 20, 30, 40, or 60 percent ratings would be authorized. An evaluation of 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, for a combined range of motion less than 170 degrees, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. An evaluation of 30 percent is warranted for forward flexion of the cervical spine of less than 15 degrees. An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine, or for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. An evaluation of 60 percent is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note (5) of the general formula for diseases and injuries of the spine. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Further, DCs 5003 and 5010 of 38 C.F.R. § 4.71a must be considered. Under DC 5003, traumatic arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When there is some limitation of motion, but which is noncompensable under a limitation-of-motion code, a 10 percent rating may be assigned with involvement of a major joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). See also Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In this matter, no medical evidence of record indicates that the Veteran has ankylosis in his disabled cervical spine, or has experienced incapacitating episodes as the result of the disability. The evidence does indicate limitation of motion associated with degenerative joint and disc disease in the Veteran's neck. As such, the issue before the Board is whether a 20 or 30 percent rating is warranted at any time since February 16, 2005. The evidence of record dated since February 16, 2005 pertaining to the Veteran's cervical spine consists of the January 2007 VA report, an April 2010 VA compensation examination report, private and VA medical treatment records, and lay statements from the Veteran and his spouse. The January 2007 VA report notes the Veteran's degenerative arthritis in the cervical spine. The Veteran indicated daily stiffness and soreness in the neck area. The Veteran indicated no significant restrictions on daily activities, or on sitting, standing, walking lifting, or climbing. The examiner indicated no use of a neck brace, no physical therapy, and no home therapy. The examiner noted no radicular symptoms, no flare ups of pain, and no paresthesias. On range of motion testing, the examiner found flexion of 0 to 45 degrees, extension of 0 to 35 degrees, right and left rotation of 0 to 75 degrees, right-side bending of 0 to 45 degrees, and left-side bending of 0 to 40 degrees. The examiner noted no change in active or passive range of motion following repetitive testing, and no additional loss of motion due to pain, weakness, impaired endurance, fatigue, flares, or incoordination. The examiner noted a negative Spurling sign, and found upper extremity neurological exam to be nonfocal. The examiner also found the Veteran's muscles and reflexes to be symmetrical with intact sensation over the whole neck. The examiner noted no muscle spasm or significant point tenderness. The April 2010 VA report notes no history of incapacitating episodes or ankylosis. The examiner noted no spasm, atrophy, guarding, tenderness, weakness, or right-side pain. The examiner did note pain on the left side. The examiner noted normal posture, gait, head position, and symmetry. But the examiner did note a "kyphotic" posture with regard to the Veteran's neck. On range of motion testing, the examiner noted flexion of 0 to 45 degrees, extension of 0 to 30 degrees, left lateral flexion of 0 to 30 degrees, left lateral rotation of 0 to 40 degrees, right lateral flexion of 0 to 30 degrees, and right lateral rotation of 0 to 60 degrees. The examiner noted no change in active or passive range of motion following repetitive testing, and no additional loss of motion due to pain, weakness, impaired endurance, fatigue, flares, or incoordination. The examiner did note pain on motion, however. Regarding the upper extremities, the examiner noted normal findings for reflexes, muscles, and nerves. The examiner noted no upper extremity radiculopathy. The examiner stated that the Veteran's neck arthritis should not affect his ability to engage in employment, but did state that some of the limitation of motion would affect his ability to drive and engage in household activities requiring extension and rotation of the neck. Private and VA treatment records dated since February 2005 are mainly negative for symptoms related to the Veteran's neck. The Board notes that a February 2007 private report indicated normal findings for the Veteran's neck. Regarding lay evidence, the Board has reviewed the Veteran's testimony, and his spouse's, during the April 2009 and August 2012 hearings. In the April 2009 hearing, the Veteran noted stiffness, weakness in lifting above his head, popping, soreness, and aching pain. The Veteran indicated, however, that he drove without much limitation. In the August 2012 hearing, the Veteran asserted that his neck "locked up once in a while" and caused limitation of motion to the left and right side. The Veteran and his spouse also agreed with the representative that "bed rest" had been ordered "six times" for his neck disability. But the Veteran indicated no radiculopathy into his arms. After a review of all the evidence in this case, the Board finds that a preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for degenerative joint and disc disease in the cervical spine. As already stated, the evidence indicates no ankylosis and no incapacitating episodes. Despite the Veteran's claim to undergoing bed rest, no supportive medical evidence indicates that the Veteran's symptoms caused incapacitating episodes as defined under the code. The Veteran's forward flexion has been consistently beyond 30 degrees (i.e. 45 degrees in January 2007 and April 2010). The combined range of motion of the cervical spine has been measured over 170 degrees (i.e., 315 degrees in January 2007 and 235 degrees in April 2010). Each examiner has indicated that repetitive testing does not significantly limit the Veteran's range of motion, or cause pain sufficient enough to limit his range of motion beyond that measured. See Deluca, supra. And though the April 2010 VA report indicated that the Veteran may have a kyphotic spine in the neck area, no evidence of record indicates kyphosis caused by muscle spasm or guarding. In fact, the examination reports and lay evidence indicate painful motion, but also indicate an absence of spasm and guarding. Hence, a rating in excess of 10 percent is unwarranted under either the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Certain STRs and private medical evidence note weakness in the Veteran's right hand. The Board has inquired into whether a separate rating should be awarded for neurological symptomatology into the Veteran's arms due to the neck disorder. Note (1) under the General Rating Formula directs VA to rate separately under an appropriate DC "any associated objective neurologic abnormalities[.]" A separate rating is unwarranted here, however. The lay and medical evidence clearly shows that the Veteran does not experience IVDS, or radiculopathy into his arms due to cervical spine degenerative changes. The Veteran has denied radiculopathy into his arms. The VA examiners have found that the Veteran's neck disorder does not cause radiculopathy. Private and VA treatment records are negative for radiculopathy into the arms. Moreover, private EMG testing in April and June 2006 found the Veteran's right upper extremity symptoms due to carpal tunnel syndrome rather than radiation from the spine. Hence, a separate rating is unwarranted here under 38 C.F.R. § 4.124a. In sum, a rating in excess of 10 percent has been unwarranted during the appeal period for the Veteran's cervical spine disorder. The Veteran has been properly rated as 10 percent disabled for noncompensable limitation of motion from degenerative joint and disc disease in the cervical spine. 38 C.F.R. § 4.71a, DC 5003, 5010. Sinuses The criteria addressing sinusitis is found in a general rating formula under 38 C.F.R. § 4.97, and includes DCs 6510 through 6514. Various types of sinusitis are addressed there, and evaluations of 10, 30, and 50 percent are authorized. A 10 percent disability rating is awarded for sinusitis manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is awarded for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent disability rating is awarded for sinusitis following radical surgery with chronic osteomyelitis, or manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97. An incapacitating episode of sinusitis is specifically defined in the regulations as one requiring bed rest and treatment by a physician. 38 C.F.R. § 4.97. The evidence of record pertaining to sinusitis, dated since February 16, 2005, consists of the January 2007 and April 2010 VA reports, private and VA medical treatment records, and lay statements from the Veteran and his spouse. Based on the evidence, a 10 percent evaluation should be assigned effective the date of the Veteran's hearing before the undersigned on August 14, 2012. The January 2007 VA report noted the Veteran's complaints of sinus congestion or sinus infection once per year. He indicated intermittent use of a nasal steroid spray. He denied seasonal allergies or predictable symptoms. The examiner indicated no antibiotic use in the past year, and no history of sinus surgery. The Veteran indicated no significant headaches, no chronic nasal drainage, and no postnasal drip. On examination, the examiner noted normal salivary palpate without masses and a straight nose. The examiner noted mild bilateral turbinate edema and some light covering of clear mucus. The examiner noted 25% bilateral obstruction, but no septal deviation. The April 2010 VA examiner noted the Veteran's occasional right-sided sinus congestion which he relieved by using Sudafed decongestant less than twice per year. The examiner indicated no nasal obstruction reported, and no sinusitis in the past 12 months. The examiner noted no surgery for the Veteran's sinusitis. The examiner noted no difficulty breathing through either side of the nose. The VA and private treatment records do not note any problems related to the Veteran's sinus. The Board does note a November 2005 private report indicating an unremarkable sphenoid sinus. During the April 2009 Board hearing the Veteran and his spouse discussed headaches, daily discharge, and drainage. During the August 2012 hearing, the Veteran and his spouse described headaches, "discharge almost all the time", daily drainage of thick mucus, and crusting. The Veteran indicated use of antibiotics "7 or 8 months ago" but that he did not use antibiotics regularly. The Veteran indicated that he did not have headaches often, and experienced infrequent nosebleeds. The relevant lay and medical evidence of record demonstrates that the Veteran does not experience incapacitating episodes due to his sinusitis. Although his sinusitis was described as "incapacitating" during the August 2012 hearing, no medical evidence indicates bed rest and treatment by a physician for the symptoms. 38 C.F.R. § 4.97. Moreover, the record is clear that he has not undergone "prolonged" antibiotic treatment. None of the VA reports, or the private or VA treatment records, indicates prolonged antibiotic treatment during the appeal period. Further, during his hearings, the Veteran indicated infrequent antibiotic treatment. The evidence is in equipoise, however, on the issue of whether the Veteran has experienced at least three non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. On the one hand, the bulk of the medical evidence dated since February 2005 does not indicate chronic symptoms such as purulent discharge or crusting, or even pain. Indeed, the April 2010 VA examination indicated that the Veteran experiences minimal symptoms. On the other hand, the lay evidence from the Veteran and his spouse at the August 2012 hearing indicates headaches and discharge, and pain associated with symptoms on both sides of the head, possibly at least three times per year. See Layno, supra. As the lay assertions address observable symptomatology - i.e., pain, runny nose, congestion - they are of probative value. As such, the Board will apply the doctrine of reasonable doubt and grant an increased rating here. 38 C.F.R. § 3.102. However, the Veteran's symptoms do not warrant a 30 percent rating under the general formula for rating sinusitis. It is well established by the medical evidence of record that the Veteran does not regularly exhibit objective manifestations such as purulent discharge or crusting. The bulk of the medical evidence addressing the Veteran's sinusitis is negative for these symptoms. Moreover, the Board notes that in this voluminous claims file, containing hundreds of pages of private and VA medical evidence, the record is largely silent regarding adverse symptomatology related to sinusitis. In sum, no more than a noncompensable rating had been warranted prior to August 14, 2012 for the Veteran's sinusitis symptoms. Since then, the Veteran's symptoms have warranted the assignment of a 10 percent disability rating. 38 C.F.R. § 4.97. In rating the Veteran's sinusitis, the Board reviewed evidence of record indicating that the Veteran underwent surgery on his pituitary gland in April 2006. The record shows that he had a benign tumor removed from the gland. The evidence also shows that the tumor may have caused certain symptoms, such as headaches, addressed under the general rating formula for sinusitis. 38 C.F.R. § 4.97. The Board considered whether the tumor removal surgery in any way comprised "radical surgery" as noted under general rating formula for the assignment of a 50 percent evaluation. However, the Board finds the pituitary gland surgery unrelated to the Veteran's sinusitis disorder, as the surgery addressed a tumor that was outside the Veteran's sinuses. The Board further notes that the evidence indicates that the symptoms relevant to rating sinusitis - headaches, congestion - actually reduced following the April 2006 surgery. The April 2010 VA examiner noted the Veteran's statements that his symptoms were alleviated by the surgery. And during his Board hearings, the Veteran indicated that the pituitary gland surgery helped alleviate his symptoms. As such, the Veteran's pituitary gland surgery - to include any prior symptoms associated with the tumor, or any residuals since the surgery - will not be factored into the rating analysis under 38 C.F.R. § 4.97. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's cervical spine and sinus disorders are appropriately contemplated by the rating schedule. Specifically, the Veteran's symptoms of neck pain and limitation of motion, and his symptoms of headaches, congestion, and drainage, are directly contemplated by the schedular criteria. Therefore, referral for consideration of an extraschedular evaluation is not warranted here. Thun. ORDER Entitlement to service connection for a lower back disorder is denied. Entitlement to a disability rating in excess of 10 percent, for the Veteran's service-connected degenerative joint and disc disease of the cervical spine, is denied. Entitlement to a compensable disability rating prior to August 14, 2012, for the Veteran's service-connected sinusitis, is denied. A 10 percent disability evaluation, for the Veteran's service-connected sinusitis, is granted from August 14, 2012, subject to regulations governing the payment of monetary awards. REMAND In a March 2011 rating decision, the RO granted service connection for a left knee disability, which it rated as 10 percent disabled from February 16, 2006, and 30 percent disabled from April 8, 2010. During the August 2012 hearing before the undersigned the Veteran expressed disagreement with the assigned ratings, and presented testimony as though the issue were on appeal. As the Veteran's expression of disagreement in August 2012 is dated over one year after the March 2011 rating decision, the Board would ordinarily regard the Veteran's notice of disagreement (NOD) as untimely. 38 C.F.R. § 20.201; Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) (noting that the statutory language for the NOD filing time limit is mandatory and jurisdictional in nature). The Veteran's NOD should be regarded as timely, however. His December 2011 Board hearing testimony has been lost. The Board cannot conclude that he did not provide a NOD during that hearing's testimony, which would have been within 12 months of the March 2011 rating decision, and therefore timely. As such, the Board regards the August 2012 testimony as a NOD against the ratings assigned in the March 2011 RO decision granting service connection for a left knee disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A remand is therefore warranted so that a SOC may be issued in response. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should issue a SOC on the issue of entitlement to a higher initial rating for a left knee disability. The Veteran should be given an opportunity to respond. 2. Should the Veteran respond by submitting a timely substantive appeal, the RO/AMC should return the issue regarding a higher initial rating for a left knee disability to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs