Citation Nr: 1328938 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-08 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability, claimed as a pinched nerve. 2. Entitlement to service connection for a neck disorder, claimed as a pinched nerve. 3. Entitlement to an evaluation in excess of 10 percent for posttraumatic chondromalacia, left knee, status-post patellar realignment and arthroscopy with osteoarthritis through November 26, 2012, and in excess of 20 percent thereafter. 4. Entitlement to a compensable evaluation for sinusitis. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION For purposes of VA compensation, the Veteran had active duty service from May 1987 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified at a Board hearing before the undersigned in August 2010. A transcript has been incorporated into the record. This matter came before the Board in October 2012 and was remanded for further development. The Board notes that the RO addressed the claim for entitlement to service connection for a neck disorder on the merits in the September 2008 rating decision and the later statement of the case. However, despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issue of an effective date earlier than May 12, 2008, for increased rating for the service-connected left knee disability has been raised by the record (see April 2013 Informal Hearing Presentation), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and referred to the AOJ for appropriate action. 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). The issues of entitlement to an evaluation in excess of 10 percent for posttraumatic chondromalacia, left knee, status-post patellar realignment and arthroscopy with osteoarthritis through November 26, 2012, and in excess of 20 percent thereafter and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied service connection for cervical radiculopathy, claimed as a neck disorder ("pinched nerve"), in December 2001 and notified the Veteran of its decision at that time; a timely notice of disagreement was not received, nor was new and material evidence received within one year. 2. Some of the evidence received since that December 2001 rating decision includes evidence that bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a neck disorder. 3. Any current cervical spine disorder, to include cervical spine degenerative joint disease, radiculopathy, and disc disease, also claimed as a pinched nerve, is not of service origin. 4. The Veteran's sinusitis is manifested by chronic symptoms sufficient to approximate three non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, though no incapacitating episodes and no surgery. CONCLUSIONS OF LAW 1. The December 2001 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. A neck disorder, to include cervical spine degenerative joint disease, radiculopathy, and disc disease, also claimed as a pinched nerve, was not incurred in or aggravated by active service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for a 10 percent disability rating for sinusitis have been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.97, Diagnostic Code 6512 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran complete pre-adjudication notice by letter dated in May 2008 and remailed to his current address in June 2008. The RO also provided the Veteran all necessary information on disability ratings and effective dates. The RO identified the evidence it had received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified its source(s). The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. In a November 2012 statement, the Veteran informed VA that he had no further evidence to submit. Given the Board's favorable disposition to reopen the claim for service connection for a neck disorder, the Board finds that no further discussion of VA duty to notice and to assist is necessary at this time with regard to this issue. VA also must assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA has assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained adequate medical opinions as to the etiology of the claimed neck disorder and the severity of the sinusitis disability. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA, records of the Social Security Administration, and the Veteran's statements and personal hearing testimony. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The Board observes the current VA treatment reports of record date though November 2009. The Board finds no prejudice to the Veteran in proceeding to de novo review of the claims seeking service connection for a neck disorder and a claim seeking entitlement to a compensable evaluation for service-connected sinusitis disability because there is no reasonable possibility the missing records would have supported his claims. As to the neck disorder claim, the current assessment of the neck disorder is already well-established in the record as well as the current symptoms. The Veteran was afforded a VA examination in November 2012 regarding the etiology of the current neck disorder and the examiner had the benefit of a claims file review and the subjective reports of the Veteran. Further, as will be discussed extensively in the decision, the Board has found the Veteran's reports of an in-service motor vehicle accident and of decades of post-service continuity of symptomatology to be not sufficiently credible. Therefore, the Board will not order a remand to obtain current VA treatment records as this evidence of current treatment and current symptoms would not provide evidence in support of the Veteran's claim. As well, the Board finds no prejudice to the Veteran in proceeding to de novo review for the claim seeking a compensable disability evaluation for the service connected sinusitis disability. The treatment reports of record supported the current symptoms as credibly testified to by the Veteran before the undersigned and the November 2012 VA examination determined the current severity of the service-connected disability. The Veteran was afforded VA examinations in June 2008 and November 2012. The Board finds that these examinations were adequate because each was performed by a medical professional, was based on a review of the record and history and symptomatology from the Veteran, and a thorough examination of the Veteran. Each examiner reported pertinent findings, offered relevant medical opinions, and provided supporting reasons for the medical opinions. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes. Further, a review of the record shows that the RO has complied with all remand instructions for the claims seeking entitlement to service connection for a neck disorder and seeking a compensable disability evaluation for the service-connected sinusitis disability. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was also provided an opportunity to set forth his contentions during the August 2010 hearing before the undersigned Acting Veteran's Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge (VLJ) who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the August 2010 travel board hearing, the undersigned enumerated the issues on appeal. Information was also solicited regarding the severity of his sinusitis disability and the etiology of the claimed neck disorder. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" was also fully explained. See Bryant, 23 Vet. App. at 497. The Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Additionally, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In Shade v. Shinseki, 24 Vet. App 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court), interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. The Court viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Id. at 121. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the [V]eteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." Id. Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or the appellant or obtained on their behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection for cervical radiculopathy, C5-C6, claimed as a pinched nerve in the neck, was originally denied in a June 2000 rating decision. The claim was denied because there was no evidence in the service treatment records of any disease or injury resulting in chronic disability, though the Veteran had sought physical therapy once for neck pain associated with a headache. The RO also considered VA treatment records, which included a 1999 assessment of cervical radiculopathy at C5-C6,, private treatment records dated post-service, in which the Veteran sought medical treatment after experiencing a bus accident, and lay statements of the Veteran and family members. The Veteran did not appeal this decision; however, in March 2001, the Veteran was informed by the RO that in light of the recent enactment of the VCAA, the RO would review the claim again. No new evidence was submitted and in a November 2001 rating decision, mailed to the Veteran in December 2001, the RO readjudicated the claim and denied service connection for cervical radiculopathy, C5-C6. The Veteran did not appeal, express disagreement, or submit evidence that was new and material within one year of the December 2001 notification, and so, it became final. See 38 C.F.R. §§ 20.201, 20.302, 20.1103; see also 38 C.F.R. § 3.156. The Veteran submitted the current claim seeking service connection for a neck disorder in May 2008. In his lay statement, he attributed his neck disorder to his duties in service loading bombs. The RO reviewed VA treatment reports and issued a rating decision denying service connection for a neck disorder on the merits in September 2008. The Veteran submitted a timely notice of disagreement and perfected the appeal that is now before the Board. The evidence received subsequent to the September 2008 rating decision includes VA treatment records, lay statements from the Veteran, his testimony before the undersigned, in which he reported having experienced a motor vehicle accident while in service for which he sought medical attention, and a VA examination report, in which the examiner considered the Veteran's lay report of having experienced a motor vehicle accident in service. Presuming the credibility of the evidence for the sole purpose of determining whether new and material evidence has been received, the Board finds that this new evidence relates to unestablished facts and raises a reasonable possibility of substantiating the claim. Taken at face value, the Veteran's testimony that he had experienced a motor vehicle accident in service for which he sought treatment suggests a relationship between the Veteran's currently assessed neck disorders and his service. Thus, such evidence is new and material, and the claim for service connection for a neck disorder is reopened. Service Connection As the claim for service connection for a neck disorder is reopened, the Board now undertakes an analysis of entitlement to service connection for this disability on the merits. In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the Court held that where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the Veteran or no prejudice would result from adjudication of the claim. As there is no waiver from the Veteran, the Board must consider whether the Veteran would be prejudiced if it proceeded to de novo review of the underlying service connection claim. See also Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that, upon reopening a claim, the Board must consider whether a claimant will be prejudiced by the Board proceeding to de novo review by considering whether the claimant has been given adequate notice of the need to submit evidence or argument and an opportunity to submit such evidence and argument and to address the matter at a hearing). The Board finds the Veteran is not prejudiced by the Board proceeding to de novo review of the claim. The RO had adjudicated the claim on the merits and the Veteran had every opportunity, which he utilized, to submit additional medical and lay statement evidence regarding the reported motor vehicle accident in service. The Veteran reported to the undersigned at hearing that a motor vehicle accident occurred in service, that he suffered a neck injury, and that he sought medical attention from a private physician. Following the remand order, the Veteran was provided notice that he may submit additional medical evidence from the clinician who treated him after the reported in-service motor vehicle accident (or authorization for VA to obtain this evidence on his behalf) and the Veteran responded in November 2012 that he had no further evidence to submit. The Veteran was provided a VA examination in November 2012 for his claimed neck disorder and the examiner considered the lay report of a motor vehicle accident in service and reached an opinion as to the etiology of the neck disorder. The Veteran's claim has been fully developed and the Board will not order a remand where there is no suggestion that there is additional relevant evidence to be obtained. The Board will now proceed with de novo review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The claimed neck disorder has been assessed as cervical radiculopathy and as degenerative joint disease. Arthritis is included as a chronic disease listed in 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to this claimed disorder. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Chronic diseases, such as arthritis, will be presumed to have been incurred in service if they had become manifest to a degree of ten percent or more within one year of the Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. A review of the service treatment reports reveal that there were no complaints or findings of cervical radiculopathy, cervical degenerative joint disease, or any complaints of having been in a motor vehicle accident or experiencing whiplash in service. In June 1990 the Veteran was authorized physical therapy following a poor response to muscular-skeletal headaches, with a recommendation for massage and heat and stretching exercises for the cervical spine area. A late July 1990 follow-up evaluation observed he was doing much better and assessed a cervical strain. A different late July 1990 clinical entry noted his neck pain was doing much better following physical therapy. In another July 1990 clinician entry, the Veteran discussed other disorders and denied having experienced any neck or head injuries. There are no further reports or complaints of neck pain and no other assessments or follow-up treatment provided. There was no Report of Physical Examination of record for this enlistment, considered honorable by VA. Based upon the above, the clinical evidence does not reflect a chronic cervical spine disorder in service and no continuity of symptomatology related to the cervical spine since service. The Veteran has not reported any assessments of degenerative joint disease for his cervical spine in the year after his service. Private treatment records do not reveal any findings of a cervical spine or neck disorder until October 1995, several years after service. Private treatment reports span 1994 to 1995 are in the record. In October 1995 the Veteran sought medical treatment after experiencing a bus accident in which he was a passenger. He reported low back pain and denied neck pain. Four days later, still in October 1995, the Veteran sought treatment for a headache and stiff neck for four days, since the bus accident. The clinician noted he was tender C2-C5 and assessed diffuse muscle pain. These private treatment reports do not include any report of continuing neck pain since service or the Veteran having experienced a motor vehicle accident in service. In November 1999 the Veteran submitted lay statements from his mother and several family members. Each statement repeated the same text in which the signatory recalled the Veteran suffered from a "pinched nerve in the neck" and pain since service. VA treatment reports begin in the record in 1997. A January 1999 neurology note included the assessment of cervical radiculopathies in the C5-C7 paraspinal muscles that was mild. The clinician recommended physical therapy. A July 2002 neurology included the clinician's observations regarding the Veteran's non-service connected migraine headaches. The clinician recommended mediation for the arthritis/muscular tightness in his neck. In April 2003 the Veteran sought treatment for severe neck pain of two weeks duration and reported it was a "pinched nerve." In the clinical assessment, the clinician noted the Veteran had a history of cervical disc disease with radiculopathy and had had intermittent episodes for two years. In support of his claim, the Veteran reported in a May 2008 statement that his neck disorder was due to his duty in service as a bomb loader, lifting weights in all kinds of weather. He also testified before the undersigned at hearing that he had experienced a motor vehicle accident in service and was privately treated for whiplash by a physician contacted through his attorney. He dated the motor vehicle accident as having occurred either in 1990 or 1991. As indicated above, a review of the service treatment records finds no complaint, treatment, or assessment of cervical radiculopathy, cervical degenerative joint disease, or a "pinched nerve" in service, only a cervical strain that resolved with no further complaints. The Board finds that no cervical spine disorder was incurred in service. The Veteran has reported experiencing a motor vehicle accident in service, and experiencing continuous neck pain and symptoms since service; however, the Board finds this report of a motor vehicle accident in service to be not credible and equally not credible the reports of continuous symptoms of neck pain. The Veteran's statements contradict each other and cannot be reconciled with the objective record. The Veteran's service treatment reports included his denial of any neck or head injury in July 1990. This report was made to a service clinician while the Veteran was being examined for medical treatment. As the Veteran would have had every incentive to be truthful when reporting his medical history to a clinician treating him, the Board finds that statement credible. His period of service considered honorable for VA purposes ended in May 1991; however even a review of the service treatment records dated after May 1991 finds numerous treatment entries for a variety of disorders and complaints, but there is no report of having experienced a motor vehicle accident. In October 1995 the Veteran sought medical treatment for a motor vehicle accident involving a bus, and even then denied neck pain, until four days after the post-service accident. Of particular significance to the Board is the statement the Veteran made to a private examiner in May 2001, when he reported for a physical evaluation as part of his Social Security disability benefits application. To that examiner, the Veteran reported his neck pain had begun two years prior, there had been no acute trauma, but that the pain began gradually. To this same private examiner he accurately reported his in-service left knee injury and the subsequent in-service surgery, yet he made no such report regarding his neck pain and instead dated the onset as two years prior. In April 2003, the Veteran sought treatment from VA and reported neck pain of two weeks duration and the clinician noted the Veteran by that treatment date had a two year history of intermittent cervical radiculopathy. Finally, to the November 2012 VA examiner the Veteran reported he had experienced a motor vehicle accident in service, but that he had received no treatment. The Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is not sufficiently credible. The Board cannot reconcile these statements in favor of the Veteran. In particular, his statement to the private examiner in May 2001, made as part of the Social Security disability application, that his neck pain had begun two years earlier stands in sharp, irreconcilable contrast to his statements made to VA in 2010, as part of the disability benefits claim process, reporting the neck pain began in service and continued continuously after a motor vehicle accident. As the Board has found the Veteran's statements of an in-service motor vehicle accident and his experiencing continuous symptoms during service and thereafter not sufficiently credible, the Board also find the statements signed by members of the Veteran's family, dated in November 1999, equally not credible. Not one statement explains how the signatories knew he had a "pinched nerve" or knew how he incurred such a disorder. These statements mirror the same language throughout and merely repeat the Veteran's contention he suffered a "pinched nerve" since service. As these statements are not credible, they have no probative value. For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board acknowledges the Veteran's belief that his current cervical spine or neck disorder is related to his period of service. However, the Board finds that the Veteran's lay statements are not competent to establish the etiology or nexus of his current neck disorders, as there is no probative evidence or credible report of the Veteran having had sufficient medical training to render a probative opinion as to a disorder as complex and internal to the body as a disorder related to the cervical spine. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, there is also no competent medical evidence of record relating any current cervical spine or neck disorder to the Veteran's period of service. In November 2012 the Veteran underwent a VA examination for his cervical spine. The Veteran reported the in-service motor vehicle accident and the examiner reviewed the claims file, so the examiner was aware of his service treatment records and the private records in the file. Following an examination, the VA examiner assessed cervical spine degenerative joint disease. He opined that this disorder was less likely than not incurred in or caused by service, in particular the reported motor vehicle accident, because the only neck problem documented in the record was neck stiffness and VA records included a 1998 EMG that found suggestive minimal C5-C6 radiculopathy, a 1999 cervical x-ray that was normal, and a 2000 cervical spine MRI that had a clinically insignificant showing. These minimal findings, coming some 10 to 20 years after the alleged injury, was suggestive of the aging process rather than acute injury. The Board finds this examination sufficient and the report to be probative. The Board also observes there is no probative medial evidence to the contrary. In sum, the preponderance of the evidence weighs against a finding that any current neck disorder, to include degenerative joint disease, disc disease, and cervical radiculopathy, also claimed as a pinched nerve, is related to the Veteran's period of service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Higher Rating - Sinusitis Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 evaluation 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. 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected sinusitis is currently rated as noncompensable under Diagnostic Code 6512. Diagnostic Code 6512 instructs the rater to use the General Rating Formula for Sinusitis. Under that provision, 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 warrants a 10 percent rating. 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 warrants a 30 percent rating. Sinusitis 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 warrants a 50 percent disability rating. Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6512. The Veteran's treatment records show since June 2007 an average of three requests for treatment for symptoms of sinusitis per year. For example, the Veteran was assessed with acute sinusitis in June 2007 and the clinician noted he was not on routine medications. In March 2008 he complained of sinus pressure and requested decongestant and saline spray. His sinus appeared normal during a June 2008 x-ray study, though by October 2008 he sought treatment complaining about sinus pain, pressure, headaches, and yellow discharge. He was then treated with antibiotics and advised to return if he did not feel better. The Veteran was afforded a VA respiratory examination in June 2008 that assessed normal appearing sinuses. He was afforded a sinusitis examination in November 2012. The examiner noted his review of the claims file and VA treatment records. The Veteran was experiencing acute sinusitis at the examination and had just been treated for sinusitis and placed on antibiotics. He reported congestion and running nose to the examiner. The examiner indicated in the positive for headaches, pain and tenderness, and purulent discharge. The examiner also observed the Veteran had had two (2) non-incapacitating episodes of sinusitis in the previous 12 months, but no incapacitating episodes or radical surgery. X-rays of the sinuses showed evidence of acute sinusitis, though no bone destruction The evidence of record supports a 10 percent evaluation for the Veteran's sinusitis throughout the entire appeal period. Though no incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, the evidence sufficiently approximates three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Veteran's treatment records do not show any incapacitating episodes and the VA examinations have not indicated any incapacitating episodes or surgery. The evidence does not sufficient manifest the criteria for a 30 percent disability rating. Again, no treatment record indicated incapacitating episodes, the VA examiner did not observe any, and the Veteran did not report having experienced incapacitating episodes when he testified before the undersigned. Regarding non-incapacitating episodes, the record, to include the Veteran's testimony, does not show more than 6 non-capacitating episodes per year and the Veteran did not report experiencing such a frequency to the examiner or to the undersigned. Based on the evidence of record, and after resolving all doubt in the Veteran's favor, the Board finds that the manifestations of the Veteran's sinusitis more nearly approximate the criteria for a compensable, 10 percent and no higher, disability rating throughout the appeal period. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's sinusitis is manifested by approximately three to six non-incapacitating episodes a year characterized by headaches, pain, and purulent discharge. These manifestations are contemplated in the applicable rating criteria. The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of sinusitis symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. The Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. The Board has already remanded the issue of TDIU, below; therefore, no further discussion is appropriate here. ORDER New and material evidence having been received the claim of entitlement to service connection for a neck disorder is reopened. Service connection for a neck disorder, also claimed as pinched nerve, is denied. Entitlement to a 10 percent and no higher disability rating for sinusitis is granted. REMAND A review of the November 2012 DBQ for the Veteran's left knee examination, as ordered by the Board in the October 2012 remand, finds that the examination is not complete. The examiner did not provide the results for anterior instability (Lachman test) testing. This information is of particular importance as the Veteran has testified that his service-connected left knee would give out on him. Therefore, all the remand instructions have not been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Upon this remand, the November 2012 DBQ for the service-connected left knee should be forwarded to the November 2012 examiner to complete from contemporaneous notes. The AMC/RO must also ensure that all medical findings in the VA examination are expressed in terms conforming to the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). After a careful review of the record, the Board finds that further development is necessary regarding the issues of entitlement to an increased rating for the service-connected left knee disability and entitlement to a TDIU. VA treatment reports in the record are current only through November 2009. The Veteran testified before the undersigned that he received treatment only through VA. Accordingly, on remand, the RO should obtain all outstanding medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Finally, the issue of entitlement to TDIU is inextricably intertwined with the still pending claim seeking increased rating for the service-connected left knee disability. Thus, appellate review of the issue of entitlement to TDIU must be deferred until the resolution of the intertwined matter. 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. Obtain all VA treatment reports pertaining to the Veteran's service-connected left knee from the Wichita VAMC dated November 2009 to present, both inpatient and outpatient. Document for the record any negative searches. 2. Forward the November 2012 DBQ to the examiner who conducted the November 2012 left knee examination and request that contemporaneous notes be reviewed and the results of the anterior instability (Lachman) testing be provided. Document for the record any negative replies. 3. After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the remanded issues with consideration of all pertinent evidence and legal authority. 4. In doing so, the RO must expressly determine whether the claim for an increased rating, to include assignment of a TDIU, should be referred to the Undersecretary for Benefits or to the Director of Compensation and Pension Services for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). 5. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. 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). ______________________________________________ BARBARA C. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs