Citation Nr: 1321693 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-21 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for chronic sinusitis, status post-surgery prior to June 22, 2012. 2. Entitlement to an initial rating in excess of 50 percent for chronic sinusitis, status post-surgery on or after June 22, 2012. 3. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the cervical spine prior to June 29, 2009. 4. Entitlement to an initial rating in excess of 30 percent for degenerative arthritis of the cervical spine on or after June 29, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1982 to November 1987 and from July 1988 to October 2002. This case comes before the Board of Veteran's Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO granted service connection for chronic sinusitis and cervical radiculopathy, and assigned 10 and 0 percent disability ratings, respectively, effective from February 27, 2007. During the pendency of the appeal, the RO issued another rating decision in August 2012 and increased the Veteran's disability evaluation for chronic sinusitis to 30 percent effective from February 27, 2007, and to 50 percent effective from June 22, 2012. The RO also recharacterized the cervical radiculopathy disability as degenerative arthritis of the cervical spine and assigned a 10 percent rating effective from February 27, 2007, and a 30 percent rating effective from June 29, 2009. However, 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). In an August 2012 rating decision, the RO granted service connection for right shoulder tendonitis and right knee strain, representing a full grant of the matters previously on appeal. Accordingly, these matters are not currently before the Board, and no further consideration is necessary. The Veteran was schedule for a Board Central Office hearing in June 2013. However, the record reflects that he cancelled the hearing, and he has not requested that it be rescheduled. As such, the Veteran's hearing request is considered withdrawn. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's sinusitis has been near constant and characterized by headaches, pain and tenderness of the sinus, and purulent discharge after repeated surgeries. 2. Throughout the appeal period, the Veteran's service-connected degenerative arthritis of the cervical spine has been characterized by complaints of limitation of motion and pain with forward flexion of the cervical spine limited to 10 degrees, but there is no ankylosis of the cervical spine. Compensable neurological impairment of the right upper extremity or incapacitating episodes of disc disease has not been shown. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, the criteria for an initial 50 percent disability evaluation, but no higher, for chronic sinusitis, status post surgery, prior to June 22, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.97, Diagnostic Code 6514. 2. The criteria for an initial evaluation in excess of 50 percent for chronic sinusitis, status post surgery, on or after June 22, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.97, Diagnostic Code 6514. 3. Resolving all doubt in favor of the Veteran, the criteria for an initial 30 percent evaluation, but no higher, for degenerative arthritis of the cervical spine prior to June 29, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for revised Diagnostic Codes 5235-5243(as in effect since September 26, 2003)). 4. The criteria for an initial evaluation in excess of 30 percent for degenerative arthritis of the cervical spine on or after June 29, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for revised Diagnostic Codes 5235-5243(as in effect since September 26, 2003)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for his chronic sinusitis and degenerative arthritis of the cervical spine. 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, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issues on appeal. 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 Veteran's claims. The Veteran has not identified any outstanding records that are available and relevant to the claim being decided herein. Moreover, the record includes various written statements provided by the Veteran and his representative. The Veteran was also afforded VA examinations in April 2011 and June 2012. 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, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination and fully address the rating criteria that are relevant to rating the disabilities in this case. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities 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 with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Law and Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Here, as the RO has already assigned staged ratings for the Veteran's chronic sinusitis and degenerative arthritis of the cervical spine, the Board will consider the propriety of those ratings, as well as whether any further staged rating of either disability is warranted. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Chronic Sinusitis In this case, the RO granted service connection for chronic sinusitis in a February 2008 rating decision and assigned a 10 percent disability evaluation effective from February 27, 2007. In an August 2012 rating decision, the RO increased the evaluation to 30 percent effective from February 27, 2007, and to 50 percent effective from June 22, 2012. These ratings were assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 6514, which provides that sphenoid sinusitis should be rated under the General Rating Formula for Sinusitis. Under the General Rating Formula, a noncompensable rating is assigned when the disability is detected by x-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned for such disability following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. In this case, post-service private treatment records document the Veteran's sinus-related complaints and symptomatology. A February 2005 report reflects that he had undergone surgery in March 2002. He subsequently began to have sinus infections every month. The Veteran indicated that these infections were generally resolved with antibiotics. In March 2006, it was noted that the Veteran had been on antibiotics for two months for his sinusitis. He had an extensive history of sinus problems, and nothing seemed helpful. The Veteran endorsed fatigue, headache, nasal discharge, sore throat, dyspnea, and cough. A purulent nasal discharge was present, and there was also tenderness of the maxillary sinus. Acute sinusitis and bronchitis was indicated. The Veteran was seen for consultation in April 2006. It was noted that he had a history of chronic sinus-related symptoms and failed various medical therapies. A CT scan revealed minimal mucosa thickening involving the maxillary sinuses and the ethmoid air cells, as well as post-operative changes. An endoscopy revealed scarring along the floor of the left middle turbinate and a spur to the right of the nasal septum with swollen mucosa and congestion. It was noted that the Veteran wished to proceed with surgical treatment. A June 2006 report from Prince William Family Medicine notes that the Veteran had recurrent sinusitis, despite previous surgical treatment, and that he was scheduled for surgical revision. The Veteran underwent nasal septal reconstructive surgery with bilateral excision of turbinates, bilateral endoscopic middle meatal antrostomy, and bilateral anterior and posterior ethmoidectomy, in June 2006. The surgical report reflects that he had a longstanding history of chronic rhinosinusitis. He had undergone prior surgery, which only helped for a short period of time. Post-surgical treatment reports dated from June 2006 to October 2006 reflect that the Veteran healed well following surgery and that his nasal obstruction and recurrent sinus infections had improved, although he still had symptoms of congestion and pressure. These records include an assessment of blepharochalasis, bilateral nasal septal deviation, chronic ethmoidal sinusitis, and bilateral turbinate hypertrophy. Treatment records from Prince William Family Medicine document the Veteran's continued sinus-related complaints following the surgery. In April 2007, while it was noted that the amount of sinus infections had been reduced, he had complaints of fatigue, bloody nose, chills, sinus and ear pressure, lung aching, and post-nasal drip. On examination, there was rhinorrhea and tenderness of the maxillary sinus. An assessment of acute sinusitis was made. In October 2007, a chronic sinus problem was indicated. The Veteran reported having thick green mucus and a lot of facial pressure. He also reported that his ears felt plugged. There was no rhinorrhea or purulent discharge seen on examination. An assessment of chronic pansinusitis was noted. In his January 2009 notice of disagreement, the Veteran reported that he was on antibiotics to treat his sinusitis several times per year. He indicated that he had to deal with constant symptoms of draining and lack of energy that had persisted despite surgical treatment. A May 2009 treatment report reflects the Veteran's complaint of fatigue, headache, nasal discharge, and cough. Rhinorrhea and purulent discharge were present, and the nasal turbinate was erythematous and swollen. There was also tenderness of the maxillary sinus. On treatment at Prince William Family Medicine in September 2009, the Veteran continued to complain of sinus pain and pressure with an onset one week prior to treatment. There was purulent nasal discharge and tenderness of the maxillary sinus. Acute sinusitis was indicated. A November 2009 treatment report from Prince William Family Medicine reflects the Veteran's complaints of sinus pain and pressure for the past 10 days. He indicated that his upper teeth hurt and that he had thick, green mucus. On examination, the maxillary sinuses were tender bilaterally, and the nares were congested. An assessment of acute maxillary sinusitis and allergic rhinitis was indicated. A March 2010 report reflects purulent nasal discharge, erythematous and swollen nasal turbinate, and tenderness of the maxillary sinuses. On VA examination in June 2012, the examiner noted that he reviewed the Veteran's claims file and found extensive office notes documenting problems with chronic pansinusitis with frequent exacerbations necessitating antibiotic therapy, including occasional treatment with protracted antibiotic therapy. The record also disclosed initial surgery in 2002 and a repeat sinus surgery in 2006. The examiner also noted a history of allergic rhinitis. With respect to sinusitis, the examiner observed that the Veteran experienced near constant sinusitis with daily nasal congestion, drainage, and headaches. He also experienced pain and tenderness of the affected sinus and purulent discharge or crusting. The examiner further noted that the Veteran experienced 7 or more non-capacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge in the past 12 month period. With respect to incapacitating episodes requiring prolonged (4 to 6 weeks) of antibiotic treatment, the examiner indicated that the Veteran experienced 2 such episodes in the past 12 months. The examiner noted that the Veteran had undergone radical endoscopic sinus surgery in the past. In regards to rhinitis, the examiner noted that there was not greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. There was no permanent hypertrophy of the nasal turbinates or nasal polyps. The Veteran did not have a granulomatous condition. The examiner indicated that the Veteran did not suffer from chronic laryngitis, obstruction of the nasal passage of one or both sides due to traumatic septal deviation, or any other nasal or sinus condition, although he did indicated that moderate bilateral nasal congestion (obstruction not greater than 50 percent) of both nares, right worse than left, was present. The pharynx was mildly erythematous without purulent drainage or exudates. The palate was short and narrow, which was consistent with obstructive sleep apnea. A MRI of the sinuses revealed clear paranasal sinuses, status post endoscopic surgery. X-rays of the sinuses were unremarkable, although the examiner indicated that radiographs were not very sensitive for chronic sinusitis. A CT scan also failed to show radiological evidence of chronic sinusitis. The examiner diagnosed the Veteran with chronic sinusitis and allergic rhinitis. With respect to the disability's impact on work, the Veteran described increased absenteeism due to frequent episodes of acute sinusitis. The examiner also indicated that the Veteran's symptoms, such as nasal congestion, drainage, and headaches, were distracting from work tasks on a daily basis. The aforementioned evidence reflects that the Veteran's chronic sinusitis has been manifested by symptoms of headaches, pain and tenderness of the sinus, and purulent discharge, despite two surgical treatments. The Board notes that this symptomatology has been present both prior to and following the June 2012 VA examination, which was the basis for the assignment of the increased 50 percent rating for chronic sinusitis. Here, post-surgical treatment records even prior to the June 2012 VA examination reflect that the Veteran experienced constant symptoms of nasal discharge, pain and tenderness in the maxillary sinus, and headache, despite surgical revision surgery in June 2006. The June 2012 VA examination report confirmed that these symptoms were constant in nature and led to at least 7 non-incapacitating and 2 incapacitating episodes of sinusitis during a 12 month period. Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that his chronic sinusitis has more nearly approximated the criteria for an initial 50 percent rating since February 27, 2007. See 38 C.F.R. §§ 4.3 4.7. The Board notes that this is the maximum rating assignable under the General Rating Formula for Sinusitis. The Board has also considered other potentially applicable diagnostic codes; however, none provide a basis for a rating in excess of 50 percent. While the Veteran has been diagnosed with allergic rhinitis, Diagnostic Code 6522 provides for a maximum rating of 30 percent. Diagnostic Code 6502 for deviation of nasal septum likewise only provides for a 10 percent rating. The Veteran's chronic sinusitis is not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. Moreover, to assign a separate evaluation under these other diagnostic codes would require the use of overlapping symptomatology, which is prohibited under the law. Separate disability ratings may only be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, for all of the foregoing reasons, the Board finds that the Veteran's chronic sinusitis symptomatology more closely approximates the criteria for the assigned 50 percent rating for the entire appeal period. B. Degenerative Arthritis of the Cervical Spine In this case, the RO granted service connection for cervical radiculopathy in a February 2008 rating decision and assigned a 0 percent disability evaluation effective from February 27, 2007. In an August 2012 rating decision, the RO recharacterized the disability as degenerative arthritis of the cervical spine and increased the evaluation to 10 percent effective from February 27, 2007. The RO also increased the evaluation to 30 percent effective from June 29, 2009. These ratings were assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 5242 Degenerative Arthritis. The criteria for rating all disabilities of the spine are set forth in a General Rating Formula for Diseases and Injuries of the Spine. Under the formula, a 10 percent disability evaluation is assigned when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability evaluation is contemplated when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is for assignment when there is forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine. Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Further, 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 normal combined range of motion range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 230 degrees. The normal ranges of motions for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a, Plate V. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The pertinent evidence of record includes a January 2007 treatment report from Prince William Family Medicine reflecting that the Veteran reported a history of neck injury 20 years earlier with occasional neck pain flare-ups. He indicated that he had been told that he had a ruptured disc and degenerative joint disease. He reported current pain, decreased range of motion, and a tingling sensation around the left arm. On physical examination, limited range of motion of the cervical spine to the left side was noted. The left trapezius was noted to be tight, but there was no spinal tenderness. An assessment of cervical radiculopathy was indicated. Chiropractic treatment records dated in 2007 reflect the Veteran complaints of neck pain and stiffness and note that a 2003 x-ray revealed degenerative joint disease. In the Veteran's January 2009 notice of disagreement, he reported that he received chiropractic treatment when the condition reached the point that he could not get out of bed. He endorsed symptoms of decreased range of motion and pain. He indicated that he had to quit a job right after service because he could not work in a position as physically demanding due to his neck problems. He took Motrin for his back and performed physical therapy exercises every morning and evening. Treatment records from the Spine Care Center & Spine Care Associates include a June 2009 initial evaluation reflecting the Veteran's report of neck pain due to injury while serving in the military. He reported that he sought chiropractic treatment following service, which had helped his symptoms. He also took Motrin, Flexeril, Naprosyn, and Vicodin when the pain was unbearable, which was not often. He stated that the pain in his neck affected him on both sides, but more so on the right. He also endorsed stiffness with pain and tingling that radiated down both upper extremities to the fingers, but more so on the right side. He was currently employed full-time as an information technician, where he sat for long periods of time, thereby aggravating his condition. The Veteran indicated that the pain radiated from his neck into his right upper extremity to the fingers. He described the pain as both sharp and dull, and on a scale from 1 to 10, he rated the pain as a 5 on average, a 7 with activity, a 7 at rest, and a 10 at worst. He indicated that the pain was constant with intermittent exacerbations related to activity level. Aggravating factors including walking, lifting, twisting, coughing, and sneezing. He was able to perform activities of daily living and did not require any assistive devices. On physical examination, there was pain with movement. There was also tenderness of the cervical spine. Range of motion testing revealed cervical extension and flexion each limited to 10 degrees. Sensation was abnormal to pinprick in the right upper extremity, and motor strength was diminished in the right upper extremity. Neurologically, there was full strength in all major muscle groups. An assessment of cervical spondylosis and cervical radiculopathy was indicated. A July 2009 MRI of the cervical spine revealed severe intervertebral disc space narrowing and broad-based osteophytic disc ridge complex, slightly paracentral to the left side with mild left-sided neural foraminal narrowing at C5-6. At C3-4, there was mild right-sided unconvertebral hypertrophy and neural foraminal narrowing without central canal stenosis. On follow-up treatment in August 2009, the Veteran was seen for his neck and bilateral upper extremity pain, right greater than left, associated with the diagnosis of cervical spondylosis and cervical radiculopathy. The Veteran localized the main area of pain in the neck with bilateral radicular symptoms, right greater than left. He described the pain as constant aching and stabbing and rated the intensity of his pain at a level of 5 to 6 out of 10. Neurologically, there was full strength in all major muscle groups, a sensory examination was intact to light touch and pinprick, and deep tendon reflexes were symmetric. However, there was decreased sensation and strength in the right upper extremity. On range of motion testing of the cervical spine, there was pain with range of motion. Extension and flexion were each limited to 10 degrees. An assessment of cervical radiculopathy and cervical spondylosis was indicated. The examiner recommended an injection for pain relief, which the Veteran subsequently underwent in August 2009 and September 2009. In an October 2009 statement, Dr. S. (initials used to protect privacy) of the Spine Care Center wrote that he had been treating the Veteran for his neck pain and radiating pain down into the lower back area, which was associated with his diagnosis of cervical radiculopathy and cervical spondylosis. He noted that the July 2009 MRI showed severe intervertebral disc narrowing at C5-C with mild bulging and effacement of the anterior aspect of the spinal sac. He noted that the range of motion of the cervical spine was limited to 10 degrees of flexion and extension and less than 5 degrees of rotation. In An October 2010 statement, Dr. S. of the Spine Care Center opined that the Veteran's cervical spondylosis injury also exacerbated his right shoulder condition. On VA examination in April 2011, the Veteran reported that he strained his upper back in service in 1986. He reported having recurrent upper back and neck pain treated with anti-inflammatory medication, traction, and physical therapy with only temporary relief. Since his retirement, he indicated that his pain had worsened and was more chronic with radiation and symptoms of cervical radiculopathy into both upper extremities. He reported that he had been treated at the Spine Care Center since 2009 and received three cervical injections with only temporary relief. He used medication, ice, chiropractic treatment, a TENS unit, hot showers, and stretching in the morning to keep functioning. He noted that the pain was chronic and aggravated by certain activities, although he could not specify flare-ups or aggravating circumstances. The Veteran endorsed symptoms of pain, decreased motion, stiffness, and spasm with pain and numbness radiating to the upper extremities. With respect to incapacitating episodes of spine disease, the Veteran indicated that he could not list each episode, but noted that he lost approximately 30 days of work per year due to his symptoms. A physical examination revealed that the Veteran's posture, head position, and gait were normal. There were no abnormal spinal curvatures or cervical spine ankylosis. There was no objective evidence of spasm, weakness, or atrophy, but there was evidence of guarding, pain with motion, and tenderness. The examiner commented that muscle spasm, localized tenderness, and guarding were not severe enough to be responsible for an abnormal gait or abnormal spinal contour. Range of motion testing of the cervical spine revealed flexion to 10 degrees, extension to 10 degrees, right and left lateral flexion each to 15 degrees, and right and left lateral rotation each to 20 degrees. There was objective evidence of pain with range of motion and repetitive range of motion, but no additional limitation in degree after three repetitions of range of motion. A detailed reflex, sensory, and motor examination revealed normal findings in the right and left upper extremities. X-rays of the cervical spine revealed no fracture or subluxation, degenerative changes with osteophyte formation at C5-6, C6-7 with intervertebral disc space narrowing at C5-6 and to a lesser extent C6-7. There was also straightening of the normal cervical lordosis, which may represent spasm. The examiner concluded by diagnosing the Veteran with symptomatic degenerative arthritis of the cervical spine with cervical radiculopathy. It was noted that the disability led to increased absenteeism at work, although the Veteran worked full-time. The Veteran reported that he lost four weeks of work during the past year due to back and sinus problems. Effects of the disability on occupational activities included problems with lifting and carrying. With respect to usual daily activities, the examiner indicated that the Veteran could not run or participate in sports and that exercise and chores would be limited. The examiner indicated that the Veteran's cervical radiculopathy was likely secondary to cervical arthritis. The aforementioned evidence reflects that the Veteran's degenerative arthritis of the cervical spine has been manifested by symptoms of pain and limited range of motion. The Board notes that this symptomatology has been present both prior to and following the June 2009 private treatment report, which was the basis for the assignment of the increased 30 percent rating for degenerative arthritis of the cervical spine. Here, while treatment records dated from 2007 to 2009 do not include specific range of motion findings, the Veteran's report of pain, stiffness, and loss of range of motion of the cervical spine has been consistently documented. Moreover, range of motion finding have been consistent in the 2009 treatment records and on VA examination in 2011, in line with the Veteran's report of severe symptoms for the entire rating period. Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that his degenerative arthritis of the cervical spine has more nearly approximates the criteria for an initial 30 percent rating since February 27, 2007. See 38 C.F.R. §§ 4.3 4.7. However, the Board also finds that an evaluation in excess of 30 percent for the Veteran's degenerative arthritis of the cervical spine is not warranted at any point during the appeal period. The Veteran has not been shown to have unfavorable ankylosis of the entire cervical spine or any of the symptoms indicative of unfavorable ankylosis. Specifically, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Based on the aforementioned range of motion findings, it is apparent that the Veteran's cervical spine is not fixated or immobile. In fact, while forward flexion of the cervical spine has been shown to be limited to 10 degrees, these findings are consistent with the 30 percent rating currently assigned. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's cervical spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 30 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's neck is contemplated in the assigned 30 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Indeed, even when considering the effect of the Veteran's pain, he is still has range of motion. As such, the disability does not more closely approximate unfavorable ankylosis. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board also notes that, under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected degenerative arthritis of the cervical spine. However, such would not be the case here. The record reflects that the RO has already granted service connection for radiculopathy of the left upper extremity. In regards to whether a separate rating is warranted for the Veteran's right upper extremity, the Board acknowledges that the private treatment records dated in 2009 reflect complaints of pain and numbness radiating to the right upper extremity and decreased sensation and strength on neurological examination. However, a later 2009 report reflects that the Veteran only had decreased sensation in the right upper extremity and was otherwise neurologically intact. In addition, the April 2011 neurological examination yielded normal findings on strength, motor, reflex, and sensory examination of the right upper extremity. Thus, the preponderance of the evidence weighs against the assignment of a separate evaluation for the right upper extremity. As a result, the Board finds that there is no basis for separate, compensable ratings under this provision. Further, although the rating criteria set forth rating criteria for intervertebral disc syndrome, there is no indication that the Veteran has had incapacitating episodes for a rating under these criteria. 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board observes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for his cervical spine disability. While the Veteran has reportedly missed days of work due to his cervical spine and other disabilities and has indicated that he sought chiropractic treatment when his symptoms prevented him from getting out of bed, incapacitating episodes, as defined by the regulations, have simply not been demonstrated. As such, he has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Accordingly, the Board finds that an initial 30 percent, but no higher, rating for degenerative arthritis of the cervical spine, is warranted for the entire appeal period. C. Extraschedular Consideration 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 chronic sinusitis and degenerative arthritis of the cervical spine are 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). 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 disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's primary complaints of pain, headache, sinus tenderness, and purulent discharge are considered in the rating assigned for his sinusitis. Similarly, the Veteran's primary of complaints of pain, limitation of motion, spasm, and stiffness have been contemplated in the rating assigned for his degenerative arthritis of the cervical spine. Moreover, as discussed above, there are higher ratings available under the diagnostic code for his cervical spine disability, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluations for the disabilities are inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected chronic sinusitis or degenerative arthritis of the cervical spine 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). For the foregoing reasons, the Board concludes that there is no basis for staged ratings of the Veteran's chronic sinusitis and degenerative arthritis of the cervical spine disabilities, as his symptoms have been primarily the same throughout the appeal period. ORDER Subject to the provisions governing the award of monetary benefits, an initial 50 percent disability evaluation is granted for chronic sinusitis for the entire appeal period. An initial evaluation in excess of 50 percent for chronic sinusitis is denied. Subject to the provisions governing the award of monetary benefits, an initial 30 percent disability evaluation is granted for degenerative arthritis of the cervical spine for the entire appeal period. An initial evaluation in excess of 30 percent for degenerative arthritis of the cervical spine is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs