Citation Nr: 1316682 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-11 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial compensable initial evaluation for sinusitis. 2. Entitlement to an initial compensable evaluation for residuals of a chronic left ankle sprain for the period from December 22, 1997, to April 11, 2004. 3. Entitlement to an initial evaluation in excess of 10 percent for residuals of a chronic left ankle sprain on order after April 11, 2004. 3. Entitlement to an initial compensable evaluation for traumatic arthritis of the distal right third finger. 4. Entitlement to an initial compensable evaluation for temporomandibular joint (TMJ) dysfunction. 5. Entitlement to a 10 percent evaluation for multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324, for the period from December 22, 1997, to April 11, 2004. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from July 1979 to January 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2004 and June 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The October 2004 rating decision granted service connection for sinusitis, a chronic left ankle sprain, and traumatic arthritis of the distal third finger of the right hand, and assigned noncompensable (0 percent) ratings for each for these disabilities. That decision also denied a 10 percent rating for the Veteran's multiple noncompensable service-connected disabilities (see 38 C.F.R. § 3.324). The June 2005 RO rating decision assigned a compensable initial rating for TMJ dysfunction and continued the denial of a 10 percent rating for the Veteran's multiple noncompensable service-connected disabilities. In a September 2012 rating decision, the RO in Phoenix, Arizona, granted a 10 percent evaluation for the Veteran's service-connected left ankle disability effective from April 12, 2004. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to an increased evaluation remains on appeal and has been recharacterized as reflected on the title page. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran provided testimony at a February 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The issues of entitlement to higher initial evaluations for sinusitis, traumatic arthritis of the distal right third finger, and TMJ dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving the benefit of the doubt in favor of the Veteran, he has been shown to have had moderate limitation of the motion of the left ankle since December 22, 1997, but not marked limitation of motion. 2. The Veteran has been assigned a schedular disability rating of at least 10 percent for his service-connected disabilities for the full period from December 22, 1997, to April 11, 2004. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent evaluation for residuals of a chronic left ankle sprain have been met for the period from December 22, 1997, to April 11, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2012). 2. The criteria for an initial evaluation in excess of 10 percent for residuals of a chronic left ankle sprain on or after December 22, 1997, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2012). 3. The issue of entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities, for the period from December 22, 1997, to April 11, 2004, has been rendered moot by reason of assignment of a rating of at least 10 percent during that time period. 38 C.F.R. § 3.324 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran's claims for service connection from which the current appeals for higher initial ratings ultimately stem were received in 1997, which was substantially prior to enactment of the VCAA. However, notice letters were sent to the Veteran in January 2003 and April 2003 that explained the evidence necessary to substantiate those service connection claims. The claims were subsequently readjudicated in December 2003 and on multiple occasions thereafter. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran is now challenging the initial evaluation assigned following the grant of service connection for residuals of a chronic left ankle sprain. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to a higher initial evaluation for his residuals of a chronic left ankle sprain. Moreover, as will be discussed below, the Board has determined that there is no legal entitlement to a 10 percent evaluation based on multiple, noncompensable evaluations for the period from December 22, 1997, to April 11, 2004. The notice provisions and duty to assist provisions are not applicable to a claim, where the claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Manning v. Principi, 16 Vet. App. 534 (2002); Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2002) (VCAA not applicable where law, not factual evidence, is dispositive). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the claims. The Veteran has not identified any outstanding records that are relevant to the issues being decided herein. In fact, at his February 2013 Board hearing, the undersigned Veterans Law Judge asked the Veteran if he had received recent treatment for his left ankle disorder, and he indicated he had not. The Board has also reviewed the available medical records for references to additional treatment reports for the time period at issue, but has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's left ankle. As noted, at his Board hearing he indicated he was not receiving current treatment for this disorder, and on several occasions in the past, the Veteran has either indicated that he is not receiving current treatment for this condition or has not responded to VA requests that he identify or provide records of any such current treatment. The Veteran was also provided VA examinations in connection with his left ankle claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it should ensure that the examination or opinion is adequate. However, there is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. In addition, the Veteran was afforded VA examinations in connection with his left ankle claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate. In particular, a May 2012 VA examination report, supplemented by a June 2012 addendum, was predicated on a review of the claims file and all pertinent evidence of record as well as on an examination, and fully addresses the rating criteria that are relevant to rating the Veteran's left ankle disability. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11- 95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also afforded an opportunity to present testimony at a February 2013 hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) identified the issues on appeal, asked questions pertaining to the severity of the Veteran's service-connected disabilities and the impairment that they cause, and clarified whether additional relevant records of treatment were available. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See generally 38 C.F.R. § 3.103(c). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim for a higher initial rating for a left ankle disability. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. I. Left Ankle Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim such as this one, placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved, is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. VA must consider application of 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran's residuals of a chronic left ankle sprain is currently assigned a noncompensable evaluation effective from December 22, 1997, and a 10 percent evaluation as of April 11, 2004, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under that diagnostic code, a 10 percent evaluation is warranted for moderate limitation of motion of the ankle, and a 20 percent evaluation is warranted for marked limitation of ankle motion. Full range of ankle dorsiflexion is from zero to 20 degrees, and full range of ankle plantar flexion is from zero to 45 degrees. 38 C.F.R. § 4.71, plate II. At an April 2004 VA examination, the Veteran reported having a history of functional impairment of his ankles in the form of having to slow down his walking, especially if he starts limping. A physical examination of the ankles revealed normal appearance, and he had dorsiflexion was to 20 degrees and plantar flexion to 45 degrees, although the left ankle had pain at the end point of the normal range of motion. There was an additional lack of endurance and incoordination of the affected the left ankle, without weakness or fatigue, but pain had the major impact on joint function. There was no evidence of deformity or ankylosis. Left ankle X-rays showed a plantar calcaneal spur and periarticalur osteopenia, but there were no other significant findings. The examiner commented that the Veteran had normal range of motion with pain at the end point of the normal range of motion of the left ankle. The diagnosis for the left ankle was status post left ankle injury with residual of left ankle sprain and calcaneal spur. The Board finds the findings of the April 2004 VA examiner to be thorough and well-explained and therefore to be of significant probative weight. At a VA examination in May 2012, the Veteran was diagnosed as having a left ankle sprain with residual degenerative joint disease. He complained of his left ankle becoming stiff daily, thereby causing him to limp, especially in the morning. He stated that, if he overdoes things with weight bearing, he experiences pain located at the medial malleolus. According to the examiner, the Veteran did not describe any swelling, instability, or giving way. The examiner also indicated that the Veteran did not report that flare-ups impacted the function of his ankle. Upon examination, the Veteran had left ankle plantar flexion to 45 degrees or greater and left ankle dorsiflexion to 20 degrees or greater, and there was no evidence of painful motion. He had no limitation in range of motion of the ankle following repetitive use testing, and there was no functional loss or functional impairment of the ankle noted on examination. He also had normal strength of the left ankle on plantar flexion and dorsiflexion, and there was there was no laxity or ankylosis of the joint found on examination. However, the Veteran was found to have localized tenderness or pain on palpation of the joint and soft tissue of the left ankle. The examiner noted that the Veteran was able to toe and heel stand. He had no Achilles tendon malalignment, and there was no visible deformity of the ankles. He had full inversion to 25 degrees and eversion to 45 degrees without objective evidence of pain or loss of motion on repetitive movement. He did not use any assistive devices for walking. An x-ray of the left ankle was abnormal, as it showed degenerative changes found by the reviewing radiologist to be most likely related to old trauma. The May 2012 VA examiner stated that the Veteran had a non-antalgic gait and did not use any ambulatory aids. He also indicated that the Veteran's left ankle condition did impact his ability to work. Instead, he noted that it was bothersome during prolonged weight bearing, hiking, or walking on uneven terrain. In an addendum dated in June 2012, the May 2012 VA examiner noted that he had reviewed the claims file and cited to specific instances of pain at the ends of range of motion and x-ray findings. He opined that the Veteran' residuals of degenerative joint disease of the ankle were not likely due to the left ankle sprain alone. In so doing, he noted that x-rays obtained in 2004 had been normal and commented that arthritis was most likely due interim trauma, as would be expected given the Veteran's age and weight (he was noted to be overweight). The examiner described the Veteran's current service-connected residuals as subjective tenderness. The Board finds that the findings of the May 2012 VA examination to be thorough, well-explained, and consistent with other evidence of record; therefore, it is accorded substantial probative weight. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to an initial 10 percent evaluation for his residuals of a chronic left ankle sprain as of December 22, 1997. The Veteran's description of his left ankle pain on standing, walking, running, and on uneven terrain is competent and credible evidence of significant probative weight. The Board also finds the Veteran's testimony that he could not run as fast as he used to due to pain of the left ankle to be credible. Consistent with this testimony, the Board notes that the April 2004 VA examiner found additional lack of endurance and incoordination of the left ankle, as well as pain, which had a major impact on joint function. This was not described or characterized as a condition of recent onset. The Board also notes that the Veteran's reported symptoms had an onset prior to the finding of degenerative joint disease. Moreover, the grant of service connection for a chronic left ankle sprain in October 2004 appears to have been based at least implicitly, if not expressly, on the credibility of the Veteran's assertions that he experienced left ankle symptoms from a time when he sprained his ankle during service in 1981 through the date of an April 2004 VA examination, and the consistency of objective findings and symptoms at the examination with the history he provided. Thus, taking into account the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings of DeLuca, supra, the Board finds that the Veteran's range of motion of his left ankle more nearly approximates moderate limitation. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board concludes that a 10 percent evaluation is warranted for his service-connected left ankle disability for the entire appeal period. The Board has also considered whether the Veteran is entitled to an initial evaluation in excess of 10 percent at any point during the pendency of the appeal. However, the Board finds that the preponderance of the evidence shows that, even considering functional impairment due to factors such as pain, the Veteran has never experienced marked limitation of motion of the ankle. In fact, examination findings in 2004 and 2012 revealed full range of motion even following repetitive testing. The May 2012 VA examiner also indicated that there was no objective evidence of painful motion, functional loss, or functional impairment of the left ankle. Nor was there any laxity, ankylosis, or deformity. Therefore, the Board concludes that the Veteran is not entitled to an initial evaluation in excess of 10 percent for his service-connected left ankle disability. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected left ankle disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which consists primarily of pain, incoordination, and lack of endurance. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). II. Entitlement to a 10 percent rating under 38 C.F.R. § 3.324 The Veteran has also claimed entitlement to a 10 percent rating based on his multiple service-connected disabilities, which had been rated as noncompensable by the RO. According to 38 C.F.R. § 3.324 , whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. The provisions of 38 C.F.R. § 3.324 are predicated on the existence only of noncompensable service-connected disabilities. Once a compensable rating for any service-connected disability has been awarded, the applicability of the provisions under 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). In the decision above, the Board has granted a 10 percent evaluation for the Veteran's service-connected residuals of a chronic left ankle sprain for the period from December 22, 1997, to April 11, 2004. As such, he has been assigned a 10 percent evaluation throughout the appeal period. Consequently, the issue of entitlement to a compensable rating based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 has been rendered moot as a result of the Board's determination that 10 percent rating is warranted for the Veteran's service-connected left ankle disability. The appeal is denied. ORDER Subject to the provisions governing the award of monetary benefits, an initial 10 percent evaluation is granted for residuals of a chronic left ankle sprain for the period from December 22, 1997, to April 11, 2004. An initial evaluation in excess of 10 percent for residuals of a chronic left ankle sprain is denied for the entire appeal period. The issue of entitlement to a 10 percent rating based on multiple noncompensbale service-connected disabilities pursuant to C.F.R. § 3.324, is rendered moot. REMAND Sinusitis At his February 2013 Board hearing, the Veteran described ongoing treatment for sinusitis at VA, including the intermittent prescription of antibiotics. Such testimony suggests greater degree of disability than that depicted at the May 2012 VA examination during which it was found that the Veteran's sinusitis was resolved and asymptomatic. Accordingly, the Veteran should be afforded an additional VA examination to determine the current severity of his service-connected sinusitis. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. In addition, the RO/AMC should seek to obtain any additional VA treatment records that may be available. See 38 U.S.C.A. § 5103A(a)-(c); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that relevant VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). TMJ Dysfunction At his February 2103 Board hearing, the Veteran stated that he had consulted with his dentist about his TMJ dysfunction and whether anything could be done to relieve it. The treatment records from this dentist may be relevant to the Veteran's claim for a higher initial rating for TMJ dysfunction. Therefore, these records should be sought for association with the Veteran's claims file. See 38 U.S.C.A. § 5103A(a)-(c). Moreover, at his February 2013 Board hearing, the Veteran described difficulties with chewing and swallowing, as well as popping and cracking noises as associated with his TMJ dysfunction. If the newly received medical records indicate a worsening or material change in the Veteran's condition, or otherwise indicate that the currently assigned rating may not be accurate, the Veteran should be afforded an additional VA examination to ascertain the severity of his disability. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. Third Finger of Right Hand At his February 2013 Board hearing, the Veteran described neurological symptoms in his hands that he felt might be related to finger joint inflammation associated with his service-connected disability. He also indicated that he could not actively touch his finger to his palm or make a fist and stated that attempting to do so could be very painful. Such testimony represents a greater degree of severity than that depicted at his May 2012 VA examination during which it was found that there was no gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips. Accordingly, the Veteran should be afforded an additional VA examination of the fingers. See 38 C.F.R. §§ 3.326, 3.327. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran identify all VA and non-VA health care providers who have treated his TMJ dysfunction, right third finger disability, and sinusitis from December 1997 to the present. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The Board notes that the only VA records of treatment in the claims file are from September 2009 to June 2010. The records sought should include recent records of treatment for sinusitis at the VA community medical facility at Flagstaff, as referenced at page 4 of the Veteran's Board hearing transcript. The records sought should also include any potentially relevant records of dental treatment with a dentist in Prescott, Arizona, as referenced at page 16 of the February 2013 Board hearing transcript, or other relevant dental treatment during the applicable rating period, from December 1997 to the present. The Veteran should also be advised that, with respect to private medical evidence, he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. The Veteran should also be afforded a VA examination to ascertain the severity and manifestations of his service-connected sinusitis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should comment on the severity of the Veteran's service-connected disability and report all sign and symptoms necessary for evaluating the disorder under the rating criteria. In particular, the examiner should state the number of incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment and the number of non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. He or she should also indicate whether there has been 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. The examiner should provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. 3. The Veteran should also be afforded a VA examination to ascertain the severity and manifestations of his service-connected third right finger disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should comment on the severity of the Veteran's service-connected disability and report all sign and symptoms necessary for evaluating the disorder under the rating criteria. In particular, the examiner should indicate whether the Veteran can actively touch his fingertip to the proximal transverse crease of the palm, and if not, whether there is a gap of one inch or more between the fingertip and the proximal transverse crease of the palm. He or she should also state whether extension of the right third finger is limited by more than 30 degrees. The examiner should indicate the effect of pain and repetitive use on the Veteran's ability to touch his fingertip to the proximal transverse crease of the palm or extend his right third finger. In addition, at his February 2013 Board hearing, the Veteran expressed concern that the numbness of his right 2nd, 3rd, and 4th fingers may be associated with inflammation caused by his service-connected disability. The examiner should indicate whether the Veteran's described numbness of the 2nd, 3rd, and 4th fingers of the right hand is caused by, chronically worsened by, or otherwise related to the Veteran's service-connected disability of the right third finger. The examiner should provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. 4. Thereafter, the RO/AMC should review the claims file and ensure that no other notification or development action, in addition to that directed above, is required. This should include consideration of whether another VA compensation examination is required for a determination as to the severity of his service-connected TMJ dysfunction. At his February 2013 Board hearing, the Veteran described difficulties with chewing and swallowing, and popping and cracking noises as associated with his TMJ dysfunction. If further action is required, the RO should undertake it before readjudication of the claims. 5. Readjudicate the issues on appeal. If any benefit sought remains denied, provide the Veteran a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs