Citation Nr: 1328607 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-45 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected status-post fracture, right hand little finger (hereinafter "right hand little finger disability"). 2. Entitlement to an initial disability evaluation in excess of 20 percent for service-connected status-post rupture, long head biceps tendon, to include impingement syndrome and strain, left shoulder (hereinafter "left shoulder disability"). 3. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected status-post neck sprain (hereinafter "neck disability"). 4. Entitlement to an initial compensable disability evaluation for service-connected allergic rhinitis. 5. Entitlement to an initial compensable disability evaluation for service-connected sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to August 2007. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from an August 2008 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Huntington, West Virginia, which granted service connection for allergic rhinitis, sinusitis, a neck disability, a left shoulder disability (minor joint) and a right hand little finger disability (major joint), and assigned noncompensable ratings, effective September 1, 2007. Jurisdiction of his claim was eventually transferred to the Baltimore, Maryland RO. In a February 2010 rating decision, issued in March 2010, the Baltimore RO assigned a higher rating of 20 percent, effective September 1, 2007, for the left shoulder disability; and higher ratings of 10 percent, effective September 1, 2007, for the right hand little finger disability and for the neck disability. The Board notes, 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 claims remain in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claims have remained on appeal. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence; however, no additional documents pertinent to the present appeal were revealed. The issues of entitlement to increased initial disability evaluations for the left shoulder, neck, allergic rhinitis and sinusitis disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished. 2. For the entire period of the appeal the Veteran's right hand little finger disability has been manifested by no more than limitation of motion of the little finger, with no adverse impact on activities of daily living or employment, and without need for any period of hospitalization. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for the right hand little finger disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code (hereinafter "DC") 5230 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist The Veterans Claims Assistance Act (hereinafter "VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). With regard to notice regarding an initial evaluation following the grant of service connection, once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Filing a notice of disagreement (hereinafter "NOD") begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case; hence further VCAA notice is not required with regard to the initial rating appeal. Pre- and post-adjudication VCAA letters dated in September 2007 and December 2008, collectively explained the evidence necessary to substantiate the claim, and informed the Veteran of his and VA's respective duties for obtaining evidence. These letters also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). As noted, the claim was readjudicated in the February 2010 rating action and in a March 2010 supplemental statement of the case (hereinafter "SSOC"). Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains in-service and post-service medical treatment records, and reports of VA examinations (October 2007 and December 2009). With respect to the VA examinations, 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). These VA examination reports generally reflect review of the claims file, examination of the Veteran, and clear description and evaluation of his right hand little finger disability. In particular, these examination findings are sufficient for proper application of the relevant rating criteria and adequate for the purpose of adjudication of the issue decided below. The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue have been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim-Entitlement to an Increased Initial Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). Ratings shall be based, as far as practicable, upon the average impairments of earning capacity. However, from time to time, VA will readjust this schedule of ratings in accordance with experience. To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). Diagnostic Code 5230 provides a noncompensable rating for any limitation of motion of the ring or little finger for either the major or minor extremity. 38 C.F.R. § 4.71a, DC 5230 (2012). The Board initially notes that the February 2010 rating decision granted an increased rating of 10 percent for the right hand little finger disability, apparently based on the diagnostic criteria for evaluating traumatic arthritis under Diagnostic Code (DC) 5010. Yet, the record clearly shows that the Veteran does not have a diagnosis of arthritis in the right hand little finger. Nevertheless, pursuant to that DC, when substantiated by x-rays traumatic arthritis is rated as degenerative arthritis. Degenerative arthritis (DC 5003), in turn, is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is warranted for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints, ratable on a parity with major joints. See 38 C.F.R. § 4.45(f) (2012). The RO in this case found that there was limitation and/or painful motion involving two or more minor joints within the finger which apparently the RO found would constitute a group of minor joints and thus entitled to a 10 percent evaluation under DC 5003 where there is arthritis and painful, yet noncompensable, limitation of motion. A higher rating under DC 5003 would require not only x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints groups, but also evidence of incapacitating episodes, which is not shown here. The service treatment records show the Veteran is right-handed. He sustained an injury to the right little finger while playing basketball in December 2005. However, an initial X-ray study performed in January 2006 revealed no significant osseous joint or soft tissue anomalies. Also in January 2006, the Veteran complained of ongoing problems with pain, stiffness and swelling in the right hand little finger. Review of an associated X-ray study revealed a small chip fracture on one view, and the Veteran was treated with Motrin and received a splint. In February 2006, the Veteran reported problems performing activities because he was right handed. However, notes dated in March 2006 indicate the right little finger injury was healing. A VA right hand examination in December 2009 shows a reported history of the Veteran jamming his right little finger while weight lifting, and reported that he was treated with a splint at the time. The Veteran complained of pain and limited movement of the little finger, however, he had not been hospitalized or undergone surgery for his right little finger. The Veteran denied taking any medications for the right little finger, had not received any physical therapy treatment to the right little finger, and had no history of neoplasms of the right little finger. He did complain of increased pain with cold and rainy weather, and could not make a full fist with his right hand, causing decreased strength of his right hand and decrease in dexterity. The examiner noted that the Veteran was right-handed. The Veteran reported he was able to perform the activities of daily living, and was able to perform his usual occupation in telecommunications. There was no history of flare-ups or incapacitating episodes. On physical examination, observation of the right little showed a depressed right fifth metacarpal head when making a fist. Flexion of the metacarpophalangeal joint (hereinafter "MCP") was from 0 to 70 degrees; flexion of the proximal interphalangeal joint (hereinafter "PIP") was from 0 to 90 degrees; flexion of the distal interphalangeal joint (hereinafter "DIP") was from 0 to 80 degrees; extension of the MCP was 0 degrees; extension of the PIP was 0 degrees; and extension of the DIP was 0 degrees. The tip of the little finger was noted to be 2 centimeters from the palm when the Veteran made a fist. There was a decrease in strength in pushing, pulling and twisting; however, there was no additional functional loss due to pain, weakness, fatigue, lack of endurance, or incoordination after repetitive use times 3. X-ray study, taken in April 2003, revealed normal findings. X-ray study, taken in January 2006, also revealed normal findings. A bone scan performed in March 2006 was reported as negative. The Veteran was diagnosed with contracture of the MCP, right little finger. While the Veteran's coworkers submitted statements in January 2009 describing the effects of the Veteran's other service-connected disabilities on his employment, they failed to discuss the effect his right hand little finger disability had on his employment. In fact, the Veteran failed to provide any statement as to the current or previous severity of his right hand little finger disability. Thus, the Board must rely on the only evidence of record that describes the nature and severity of the right hand little finger, namely the medical evidence, to evaluate the Veteran's claim for an increased rating. Based upon the evidence of record, the Board finds the Veteran's service-connected right hand little finger disability is manifested by subjective reports of discomfort with no adverse impact on activities of daily living. A noncompensable rating is the maximum rating allowable under the rating schedule for single little finger limitation of motion and the medical evidence demonstrates the Veteran's right hand little finger had no functional impairment on activities of daily living. See 38 C.F.R. § 4.71a, DC 5230 (2012). Further, while there is some deformity of the finger, there is no evidence of ankylosis. In any event, ankylosis of the ring finger also warrants a noncompensable rating whether favorable or unfavorable. See 38 C.F.R. § 4.71a, DC 5227 (2012). The Board finds the December 2009 VA examination findings are thorough and persuasive as to his disability picture over the course of this appeal. There is no indication that higher or separate ratings are warranted under any applicable schedular rating criteria. Therefore, the claim for entitlement to an initial evaluation in excess of 10 percent for the service-connected right hand little finger disability must be denied. The Board has also considered the Veteran's representative's contention, in the August 2013 Appellant's Brief, that the Veteran's right hand little finger disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). VA regulations require that unless the symptoms and/or degree of impairment due to a service-connected disability can be distinguished from any other diagnosed disorders, VA must consider all symptoms in the adjudication of the claim. See Mittleider v. West, 11 Vet. App. 181 (1998). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). However, in this case, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Moreover, the occupational and social impairment caused by the Veteran's right hand little finger disability, as described above, are accounted for by the rating criteria. In this regard, the Board notes that during the Veteran's December 2009 VA examination he reported that he was currently employed in telecommunications, and that he was able to perform his activities of daily living and his usual occupation despite his right hand little finger disability. Thus, the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER An evaluation in excess of 10 percent for the right hand little finger disability is denied. REMAND The Veteran last underwent VA examination to evaluate the severity of his service-connected left shoulder, neck, rhinitis and sinusitis disabilities in December 2009. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). In an August 2013 Appellant's Brief, the Veteran's representative argued the merits of granting increased evaluations for the Veteran's service-connected disabilities, and requested that the Board remand the case for VA examination, and specifically for clarification of point of pain on range of motion for exact measurement of functional loss regarding the left shoulder and neck disabilities. Moreover, the Board finds the Veteran's December 2009 VA nose, sinus, larynx and pharynx examination, is inadequate for VA rating purposes, as the examiner commented on the Veteran's previous sinus infection, but failed to address whether or not the Veteran experienced any obstruction of the nasal passage when experiencing symptoms of allergic rhinitis, and whether or not he experienced any incapacitating episodes of sinusitis or the duration and symptoms associated with any of the previous sinus infections, as are required in evaluating sinusitis and allergic rhinitis. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Also, it is unclear as to whether the examiner closely reviewed the claims folder as he reported that the Veteran's last episode of a sinus infection was in 2006, and failed to comment on the in-service treatment records that reveal findings of sinusitis in 2007, and the post-service treatment records that clearly show that the Veteran was treated for acute sinusitis in 2008. As this case involves a claim for an increased initial disability rating, review of the entire claims file and commentary on the history of the Veteran's disability is necessary for the examination to be deemed adequate for VA rating purposes. The probative value of medical opinion evidence, among other factors, is based on whether a clinician was "informed of the relevant facts" and medical history in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds that new VA examinations are warranted to address the nature and severity of these service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must arrange for VA examination with an appropriate clinician to determine the nature and severity of the left shoulder disability. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. It is requested that the VA examiner provide a thorough history of the Veteran's left shoulder symptomatology, to include the current impact of the service-connected left shoulder disability on his daily activities. All indicated testing should be performed, including range of motion testing. Specifically, the examiner should provide an opinion in terms that are consistent with the rating criteria for rating the shoulder and arm (Diagnostic Codes 5200 to 5203), particularly considering the guidance of DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). See also 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). The examiner should also describe the impact, if any, of the Veteran's left shoulder disability on his capacity for gainful employment. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 2. The RO/AMC must arrange for VA examination with an appropriate clinician to determine the nature and severity of the neck disability. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. It is requested that the VA examiner provide a thorough history of the Veteran's neck symptomatology, to include the current impact of the service-connected neck disability on his daily activities. All indicated testing should be performed, including range of motion testing. The examiner should also describe the impact, if any, of the Veteran's neck disability on his capacity for gainful employment. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 3. The RO/AMC must arrange for VA examination with an appropriate clinician to determine the nature and severity of the allergic rhinitis disability. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. It is requested that the VA examiner provide a thorough history of the Veteran's allergic rhinitis symptomatology, and all indicated testing should be performed. Specifically, the examiner must comment on whether the Veteran has experienced any allergic rhinitis with polyps or without polyps, and if without polyps, whether the Veteran experienced any obstruction of either or both sides of his nasal passage, and the percentage of obstruction on either or both sides. The examiner should also describe the impact, if any, of the Veteran's allergic rhinitis on his capacity for gainful employment. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 4. The RO/AMC must arrange for VA examination with an appropriate clinician to determine the nature and severity of the sinusitis disability. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. It is requested that the VA examiner provide a thorough history of the Veteran's sinusitis symptomatology, and all indicated testing should be performed. Specifically, the examiner must comment on whether or not the Veteran has had any incapacitating episodes of sinusitis, which required bed rest and treatment by a physician, and identify the number, per year, of any such episodes. The examiner should also comment on whether or not the Veteran has had any non-incapacitating episodes, per year, of sinusitis, and provide a description of the symptoms that have comprised these episodes. The examiner should also describe the impact, if any, of the Veteran's sinusitis on his capacity for gainful employment. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 5. After completing the requested action, and any additional notification and/or development warranted by the record, the RO should readjudicate the claims for increased evaluations remaining on appeal with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO/AMC should furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond before the case is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs