Citation Nr: 1324083 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 05-29 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 10 percent for cervical spine myositis-strain with degenerative joint disease (cervical spine disability). 2. Entitlement to service connection for sinusitis. 3. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1948 to November 1949, and from August 1950 to August 1969. His awards and decorations include a Combat Infantryman Badge and a Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issue as to service connection for sinusitis was certified to the Board for appeal in June 2007, and it was previously remanded for further development, as discussed below. Thereafter, the Veteran submitted a claim for an increased rating and for a TDIU, as stated on the first page of this decision. He appealed from the denial of each of these claims, and these issues were certified to the Board for appeal in November 2011. Separate docket numbers were initially assigned to the two appeals. However, as all of the issues on appeal arose from the same agency of original jurisdiction (AOJ), the appeal as to these issues has been merged with the prior appeal for the purposes of consideration by the Board. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge as to the issue of service connection for sinusitis in June 2007. A copy of the transcript from that hearing is associated with the claims file. The Veteran has not requested a hearing as to the other issues on appeal. See, e.g., April 2010 and November 2011 substantive appeals (VA Form 9). Additionally, evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. With respect to the Veteran's sinusitis claim, in October 2007, the Board recharacterized the issue as whether new and material evidence had been received sufficient to reopen the previously denied service connection claim for sinusitis, based on a finding that the June 1971 initial denial of such claim was final. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). The Board remanded this issue to the AOJ to provide the Veteran with proper notice as to the claim to reopen and readjudicate that issue. However, upon further review of the claims file, the Board finds that the previous denial of this claim was not final because new and material evidence was received prior to the expiration of the appeal period. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Specifically, the AOJ denied the claim based on finding that, although the Veteran was treated for sinusitis during service, no residuals were recorded during his evaluation upon separation from service in August 1969. The AOJ further indicated that there was no evidence of record that the Veteran had residuals of sinusitis that had existed since discharge from service. This was based primarily on a December 1969 VA examination, during which the Veteran reported sinusitis in the past but not currently. Similarly, a December 1969 VA E.N.T. report recorded that the Veteran reported throat pains on rare occasions and denied any nasal complaints, and sinuses were clear on transillumination. No diagnosis was given at those times. The Board notes that no communication or appeal was received from the Veteran or any authorized representative within the one year following the initial denial of his claim for sinusitis, or at any point prior to August 2004. See 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1971). However, pertinent post-service Naval Hospital treatment records were received and associated with the claims file in March 1972, or within one year after the June 1971 denial. Such evidence includes documented treatment for sinusitis and possibly related headaches in March 1970, and a diagnosis of chronic sinusitis in September 1970. The Naval Hospital records are neither cumulative nor redundant of the evidence that was considered by the AOJ in connection with the initial denial, and they relate to the question of whether there was a current chronic condition that had existed since service. Accordingly, this constitutes new and material evidence, as contemplated by 38 C.F.R. § 3.156. Further, as such evidence was received prior to the expiration of the appellate period from the June 1971 denial by the AOJ, it renders this prior decision not final, and the prior claim remains pending. 38 C.F.R. § 3.156(b). Accordingly, the issue before the Board is not actually whether new and material evidence has been received sufficient to reopen a finally adjudicated claim for service connection for sinusitis. Rather, the issue is entitlement to service connection for sinusitis, as this claim has remained pending since 1971. In May 2012, the Board remanded the Veteran's claims. The VA Appeals Management Center (AMC) continued the previous denial of the claims in an April 2013 supplemental statement of the case (SSOC). The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. Although the Board sincerely regrets the additional delay, further development is necessary as to the issues of service connection for sinusitis and for a TDIU. Accordingly, these issues 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence of record indicates that the Veteran's service-connected cervical spine disability is manifested by pain, functional loss, limitation of motion, and forward flexion of the cervical spine less than 30 degrees but greater than 15 degrees; unfavorable ankylosis of the entire cervical spine is not shown. 2. The evidence does not show that the Veteran's service-connected cervical spine disability is so exceptional or unusual that referral for extraschedular consideration by a designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating, but no greater, for the Veteran's service-connected cervical spine disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5237 (2012). 2. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased disability rating for his service-connected cervical spine disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in May 2012, the Board remanded this claim and ordered the AOJ to obtain outstanding medical treatment records as well as provide the Veteran with a VA examination for his cervical spine disability and associate a report of the examination with his claims folder. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the AMC attempted to obtain outstanding private treatment records and also associated VA treatment records with the Veteran's claims folder. Additionally, the Veteran was afforded a VA examination for his cervical spine disability in December 2012, and a report of the examination was associated with his claims folder. The Veteran's cervical spine disability was readjudicated via the April 2013 SSOC. Accordingly, the Board's remand instructions have been substantially complied with regarding the Veteran's cervical spine disability claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (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 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Board observes that the Veteran was not specifically advised prior to the initial unfavorable rating decision as to his increased rating claim of the evidence and information necessary to substantiate such claims, i.e., that the claimed disability has increased in severity, or of the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. However, he had been notified of the evidence and information per Dingess/Hartman in connection with his claim for sinusitis in December 2007, which remains on appeal. He was also notified of each of these requirements, as well as of the relevant diagnostic codes, in the November 2010 Statement of the Case concerning this issue. See Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (vacated by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), to the extent that it requires more than "generic notice" for an increased rating claim). The timing defect as to this notice was cured by the subsequent readjudication of these claims in the July 2011 and April 2013 SSOCs. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Additionally, the Veteran has described his pertinent symptomatology, including in VA treatment records and VA examinations, and he has been afforded adequate opportunity to participate in the adjudication of this claim. Moreover, the Veteran has not alleged any prejudice as a result of any possible notice defects concerning his increased rating claim. As such, the essential fairness of the adjudication was not affected by any notice defects. See Shinseki v. Sanders, 129 S.Ct. 1696, 1705-06 (2009) (determinations concerning harmless error should be made on a case-by-case basis, and the claimant has the burden of showing prejudice); Sanders v. Nicholson, 487 F.3d 881, 889 (2007) (setting forth factors for determining whether a VCAA notice error affected the essential fairness of the adjudication; reversed on other grounds by Shinseki, supra). In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating this claim. The evidence of record includes statements from the Veteran, the Veteran's service treatment records, as well as VA and private treatment records. The Veteran was afforded VA examinations in December 2009 and December 2012 for his cervical spine disability. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports contain sufficient information to rate the Veteran's cervical spine disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that the Veteran submitted release forms [VA Form 21-4142] dated May 2012 indicating private treatment from Dr. Rodriguez and Dr. Mercado-Rosso. The AMC subsequently contacted these treatment providers in June and July 2012 in order to obtain these records. However, no response was received from either provider. In a letter dated July 2012, the AMC informed the Veteran of the attempts to obtain the outstanding records and further instructed him that if he had any records in his possession, he should submit them. As evidenced by the claims folder, the Veteran did not send any records from these providers in response to the AMC's letter. Although the absence of outstanding private treatment records from Dr. Rodriguez and Dr. Mercado-Rosso is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records. Crucially, the AMC attempted to locate these records and subsequently informed the Veteran of the absence of a response. Moreover, the Veteran had an obligation to assist VA in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The Board's decision to not remand this issue for a second time to obtain these records is supported by the fact that it appears that the AMC made sufficient attempts to locate the private treatment records. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. In his January 2011 substantive appeal [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision as to the issue of entitlement to a disability rating in excess of 10 percent for a service-connected cervical spine disability. Higher evaluation for cervical spine disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2012); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "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." 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). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. The Veteran seeks entitlement to an increased rating for his service-connected cervical spine disability, which is currently evaluated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5237 [arthritis-cervical strain]. See 38 C.F.R. § 4.27 [hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen]. The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent evaluation requires evidence of forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation requires evidence of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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 requires forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation requires evidence of unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. Id. at Note 1. In addition to cervical myositis strain, the Veteran's treatment history indicates diagnosis of degenerative changes in the cervical spine. See, e.g., the December 2009 VA examination report. It is now well-settled that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The Board notes that the December 2012 VA examiner opined that the Veteran's degenerative changes of the cervical spine is less likely as not related to or caused by the service-connected cervical strain/myositis. The examiner's rationale was based on his finding that the cervical spine degenerative disease is related to the normal changes expected as part of the aging process. Crucially, however, the VA examiner also stated that degenerative changes and strain/myositis can provide the same symptoms of pain in spite of having different etiologies. Furthermore, there is no other medical evidence of record that clearly differentiates between the symptomatology associated with the Veteran's cervical strain and myositis and that resulting from the degenerative disease. Accordingly, for the purposes of this decision, the Board will consider all of the Veteran's reported neck symptoms as associated with his cervical spine disability in evaluating his increased rating claim. The Veteran was afforded a VA examination in December 2009. He complained of severe, constant, daily neck pain as well as decreased range of motion. He did not complain of radiation of symptoms. He also complained of flare-ups which occurred weekly and lasted hours in duration. The flare-ups were alleviated with use of medication. The Veteran reported that he used a cane for ambulation and was unable to walk more than a few yards. He also reported that his cervical spine disability did not affect feeding; moderately affected traveling; severely affected shopping, bathing, dressing, toileting, and grooming; and prevented chores and exercise. Upon physical examination, the VA examiner reported that the Veteran's head position was normal and symmetrical in appearance. The examiner also reported left and right spasm, guarding, pain with motion, and tenderness. However, she noted that the muscle spasm, localized tenderness, and guarding was not severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion testing revealed forward flexion to 45 degrees, extension to 45 degrees, left lateral flexion to 30 degrees, left lateral rotation to 50 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 50 degrees. The examiner reported objective evidence of pain on active motion and following repetitive motion. There was no additional limitations after three repetitions of range of motion. The examiner noted an X-ray report dated August 2007 indicating an impression of the following: straightening of the cervical lordosis; degenerative changes in the cervical spine; posterior osteophytes at C5-C6 causing mild compression; posterior osteophytes and sic protrusion with mild compression at C3-C4; small posterior osteophytes without significant compression at C4-C5; and narrowing of the right neural foramen at C3-C4. She diagnosed the Veteran with chronic active cervical myositis-strain. The Veteran was provided an additional VA examination in December 2012. At that time, he did not complain of flare-ups. He reported that he used a walker for ambulation. Upon physical examination, range of motion testing revealed forward flexion to 35 degrees with pain at 20 degrees, extension to 20 degrees with pain at 20 degrees, right lateral flexion to 15 degrees with pain at 10 degrees, left lateral flexion to 15 degrees with pain at 10 degrees, right lateral rotation to 60 degrees with pain at 30 degrees, and left lateral rotation to 60 degrees with pain at 30 degrees. There was no additional limitations after repetitive testing. The VA examiner further noted that the Veteran had functional loss and/or functional impairment of the cervical spine, including less movement than normal and pain on movement. Although the Veteran had localized tenderness or pain to palpation of the cervical spine, it was not severe enough to result in abnormal gait or abnormal spinal contour. The Board adds that a VA treatment record dated October 2012 documents the Veteran's complaints of neck pain and use of medication for treatment. As discussed above, a 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, there is evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, in evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45 (2012). See DeLuca, supra. As discussed in DeLuca, claimed functional loss must be supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion. The Board finds that the objective clinical findings of record document functional loss and limitation of motion due to the Veteran's cervical spine disability sufficient to warrant a 20 percent disability rating. In particular, the December 2012 VA examination indicated that objective evidence of painful motion on forward flexion began at 20 degrees. As indicated above, a 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees. Moreover, the VA examiner specifically noted functional loss and impairment of the cervical spine on testing, with functional loss and impairment on initial testing consisting of less movement than normal with pain on movement. Although the December 2009 VA examiner noted that forward flexion of the cervical spine was to 45 degrees, she also documented objective evidence of pain on motion as well as the Veteran's complaints of flare-ups and statements indicating functional loss. Based on evidence of forward flexion of 20 degrees and functional loss as well as the Court's holding in DeLuca, the Board finds that a 20 percent disability rating is warranted for the Veteran's cervical spine disability. The Board further notes that a disability rating in excess of 20 percent is not warranted for the Veteran's cervical spine disability. In this regard, the Board finds that the competent and probative evidence of record does not indicate functional loss attributed to the Veteran's neck complaints sufficient for a higher disability rating. Specifically, the December 2012 VA examiner did not indicate weakened movement, excess fatigability, incoordination, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting, standing and/or weight-bearing. Furthermore, the competent and probative evidence of record does not document forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine as would be required for a higher disability rating. The Board is unable to identify any clinical findings that would warrant a disability rating in excess of 20 percent under 38 C.F.R. § 4.40 and 4.45. The Board further finds that the current 20 percent rating adequately compensates the Veteran for any functional impairment attributable to his cervical spine disability. See 38 C.F.R. §§ 4.41, 4.10 (2012). The Veteran has not asserted, and the record does not show, physician prescribed bed-rest for the cervical spine disability. As a result of the foregoing, the Board finds that the Veteran has had no incapacitating episodes, and a rating under the alternative ratings formula for intervertebral disc disease is not warranted. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See also Bierman v. Brown, 6 Vet. App. 125 (1994) [holding that under former Diagnostic Code 5293 a separate rating for neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder]. The Board notes that the Veteran has complained of right arm pain during VA treatment sessions in June and August 2007. However, the competent and probative evidence of record does not indicate neurological impairment sufficient to warrant a separate disability rating. Notably, the December 2009 and December 2012 VA examinations document essentially normal neurological findings. Indeed, the Veteran denied any radiation of symptoms during the December 2009 VA examination. Based this record, the Board finds that separate ratings for neurological impairment of the upper extremities are not warranted. Additionally, the Veteran has not identified any bladder or bowel dysfunction associated with his cervical spine disability, and none has been diagnosed. The Board further notes that although the Veteran has been diagnosed with degenerative changes of the cervical spine, this disease manifests in neck pain based on identified symptomatology. Accordingly, separately rating the diagnosis would amount to prohibited pyramiding. See 38 C.F.R. § 4.14 (2012) [the evaluation of the same disability under various diagnoses is to be avoided]. In Hart, supra, the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). After a careful review of the record, the Board can find no evidence to support a finding that the Veteran's cervical spine disability was more or less severe during the appeal period. Specifically, as discussed above, the December 2009 and December 2012 VA examination reports, as well as VA treatment records, indicate that the Veteran's cervical spine symptomatology has remained relatively stable throughout the period. As such, there is no basis for awarding the Veteran a disability rating other than the assigned 20 percent for any time from November 2007 to the present. The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Here, the manifestations of the Veteran's cervical spine disability, as summarized above, are fully contemplated by the schedular rating criteria. As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his disability picture. Therefore, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization. See id. However, there have been no hospitalizations for the claimed disability during the course of the appeal. Further, the percentage ratings are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The Veteran's claim for a TDIU is being remanded for further development as discussed below. As such, it need not be further addressed at this time. ORDER Entitlement to a 20 percent disability rating for a service-connected cervical spine disability is granted, subject to controlling regulations applicable to the payment of monetary benefits REMAND Service connection for sinusitis The Board remanded this claim in May 2012 for the AOJ to schedule the Veteran for a VA examination in order to determine the nature and etiology of any sinusitis. The Veteran was thereafter afforded a VA examination in December 2012. After examination of the Veteran and review of his claims folder, the VA examiner declined to diagnose the Veteran with a sinus disorder. She reported a normal physical examination. Because no sinusitis was diagnosed, the VA examiner did not render an opinion as to whether the Veteran's claimed sinusitis is related to his military service. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). In this case, although sinusitis was not rendered during the December 2012 VA examination, the Board observes that the presence of sinusitis has been noted during the appeals period, which the Board reiterates dates back to 1971. Notably, an August 1977 VA examination documents diagnosis of chronic maxillary sinusitis with reports of headaches, and a January 2003 VA treatment record similarly notes a diagnosis of sinusitis. There is no medical opinion of record which suggests a relationship between the Veteran's previously diagnosed sinusitis and his military service. In light of the foregoing, the Board is of the opinion that a clarifying medical opinion would be probative in ascertaining whether the Veteran's previously diagnosed sinusitis is related to his military service. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). TDIU The Board remanded the case in May 2012 in order for the AOJ to schedule the Veteran for a VA examination concerning his employability due to service-connected disabilities as well as a VA Social and Industrial Field Survey. The examiner was requested to state whether it is at least as likely as not (probability of 50 percent or more) that the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities, either separately or together. Additionally, the examiner was to consider the other opinions of record concerning the Veteran's level of functioning, including a letter from Dr. Mejia (opining that the Veteran is unemployable due to his low back disability and associated radiculopathy and his service-connected bilateral knee disabilities) and a December 2009 VA examination report (opining that the Veteran is capable of gainful occupation with semi-sedentary work and several restrictions, and that his nonservice-connected COPD/emphysema is the most important factor interfering with employability). The examiner was also requested to explain the reasoning (or rationale) behind any opinion offered. Unfortunately, the Board finds that an additional remand is necessary prior to review of the Veteran's claim. The Board notes that the Veteran was afforded a VA Social and Industrial Field Survey in December 2012. However, the Veteran's claims folder was not available. After examination of the Veteran, the VA examiner opined that the effect of the Veteran's disabilities on his employment was "moderate." The Veteran was subsequently provided a VA examination for his TDIU claim, also in December 2012. After examination of the Veteran's low back and his knees, the VA examiner opined that the Veteran was found able to work in a sedentary job with carrying, lifting, pushing, pulling, prolong standing, or prolonged ambulation restrictions. Pertinently, the VA examiner did not provide a rationale for his opinion. Moreover, he did not reconcile his opinion with the opinions of Dr. Mejia and the December 2009 VA examination report. He also did not render an opinion as to whether the Veteran's lumbar spine and bilateral knee disabilities combined with his cervical spine disability render him unable to obtain substantial and gainful employment. In light of the foregoing, the Board finds that another remand is required for compliance with its May 2012 Remand instructions. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims file to the VA examiner who examined the Veteran in December 2012 for his sinusitis. The examiner should again review the Veteran's claims file and provide an opinion as to whether the Veteran's previously diagnosed sinusitis is at least as likely as not (probability of 50 percent or more) related to his military service. In responding to this question, the examiner should consider the documented treatment for sinusitis and related symptoms during service; within one year following separation from service (March 1970 Naval Hospital notation of headaches probably secondary to sinusitis, September 1970 Naval Hospital diagnosis of chronic sinusitis); and subsequent documented treatment (to include the August 1977 VA examination diagnosis of chronic maxillary sinusitis with reports of headaches, etc; January 2003 VA diagnosis of sinusitis and sinus CT scan; May 2005 VA complaints of nasal congestion). The Veteran's lay statements as to observable symptoms over the years (or continuity of symptomatology) should also be considered and weighed with other evidence. The examiner should indicate in their report whether or not the claims file was reviewed. A rationale for all opinions expressed should be provided. If the examiner determines that an examination of the Veteran is necessary, an examination should be scheduled. A report should be prepared and associated with the Veteran's VA claims folder. 2. Return the claims file to the VA examiner who examined the Veteran in December 2012 for his TDIU claim. The examiner should again review the Veteran's claims file and state whether it is at least as likely as not (probability of 50 percent or more) that the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities, to include his lumbar spine, right and left knee, and cervical spine disabilities, either separately or together. The Veteran's level of education, special training, and previous work experience, but not the effects of his age or any nonservice-connected disabilities, should be considered. Additionally, the examiner should consider the other opinions of record concerning the Veteran's level of functioning, including the December 2009 VA examination report and the letter from Dr. Mejia. The examiner should explain the reasoning (or rationale) behind any opinion offered. If an opinion cannot be offered without resorting to speculation, the examiner should indicate such in the report and explain why a non-speculative opinion cannot be offered. If the examiner determines that an examination of the Veteran is necessary, an examination should be scheduled. A report should be prepared and associated with the Veteran's VA claims folder. 3. After the above is complete, readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs