Citation Nr: 1337571 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-37 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a nasal fracture, status-post submucous resection, rhinoplasty with chronic sinusitis and headaches. 2. Entitlement to an increased rating for residuals of a post-discectomy due to degenerative joint disease of the lumbosacral spine, rated as 40 percent disabling prior to April 21, 2005; from June 1, 2006 to March 30, 2009 and beginning on June 1, 2009. 3. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from December 1969 to November 1971 and from November 1972 to December 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which denied the Veteran's claim for an increased rating for residuals of a post-discectomy due to degenerative joint disease of the lumbosacral spine. In addition, the Veteran appeals from a June 2008 rating issue which, in pertinent part, denied the Veteran's claims for an increased rating for left lower extremity radiculopathy and a nasal fracture. The Board notes that the Veteran has been assigned several temporary total disability ratings for convalescence following surgeries under 38 C.F.R. § 4.30 (2012) performed to treat his residuals of a post-discectomy. He has been awarded such a temporary total rating for the periods from April 21, 2005 to June 1, 2006 and from March 30, 2009 to June 1, 2009. The Board has therefore recharacterized the Veteran's claim for an increased rating to reflect the receipt of such a temporary total ratings. In November 2010, the Veteran testified at a hearing (Videoconference) before the undersigned. A hearing transcript has been associated with the claims file. In February 2011, the Board, in pertinent part, restored a 40 percent rating for the Veteran's residuals of a post-discectomy due to degenerative joint disease of the lumbosacral spine. In addition, the instant claims were remanded to the Appeals Management Center (AMC) in Washington, D.C. for development and adjudication. The Board notes that the Veteran had filed a claim for an increased rating for his lumbar spine disorder in July 2004. In response to this claim, the RO proposed to reduce the rating from 40 percent to 20 percent in November 2005, and implemented this proposed reduction in March 2006. The Veteran perfected an appeal as to this reduction. In February 2011, as previously discussed, the Board restored the 40 percent rating for the Veteran's residuals of a post-discectomy and remanded the associated increased rating claim for additional development. Additionally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher rating includes a claim for a total rating based on individual unemployability (TDIU) where a Veteran claims that his service-connected disability prevents him from working. The Board notes that it had granted the Veteran's claim for TDIU in its February 2011 decision and that a March 2011 rating decision issued by the AMC implemented this award, effective January 28, 2008, the date of the claim for an increased rating for residuals of a nasal fracture. Therefore, further consideration of TDIU with regards to the claim decided herein is not warranted. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims folder associated with the Veteran's claims. A review of the Virtual VA claims file reveals VA treatment records dated through May 2012; such records were considered in the August 2012 supplemental statement of the case (SSOC). An October 2013 Informal Hearing Presentation (IHP) from the Veteran's representative was also found in the Veteran's Virtual VA claims file. The issues of entitlement to an increased rating for residuals of a post-discectomy and left lower extremity radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, D.C. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Since the date of the Veteran's claim for an increased rating, the Veteran's residuals of a nasal fracture is manifested by six non-incapacitating episodes per year, at worst, with nasal congestion and difficulty breathing through the nose. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a nasal fracture, status-post submucous resection, rhinoplasty with chronic sinusitis and headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.20, 4.27, 4.97, 6502, 6512 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. With regards to the Veteran's claim for an increased rating for residuals of a nasal fracture, letters dated in August 2008 and March 2009 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. These letters also provided the Veteran with notice of the manner in which VA assigns ratings and effective dates, consistent with the holding in Dingess/Hartman. The Court held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores v. Shinseki, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This was accomplished by the post-rating August 2008 and March 2009 notice letters. After the issuance of the post-rating August 2008 and March 2009 letters, and the opportunity for the Veteran to respond, the January 2010 statement of the case (SOC) reflects readjudication of the claim for an increased rating for residuals of a nasal fracture. Hence, the Veteran is not shown to be prejudiced by the timing of this latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, the Veteran has not alleged prejudice from any notice deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The evidence of record includes the service treatment records, VA outpatient treatment records, various private treatment records and the VA examination reports. Although VA requested that he do so in a March 2011 letter, the Veteran not completed additional authorization forms to allow VA to obtain any additional private treatment records. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted. See 38 C.F.R. § 3.159(c)(1). With regards to claims for an increased rating, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §3.327(a). The Veteran was provided with appropriate VA examinations in April 2008 and April 2011. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. See 38 C.F.R.§ 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The aforementioned VA examination reports are thorough and supported by the outpatient treatment records. The examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, the Board finds there has been substantial compliance with its February 2011 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC obtained the Veteran's updated VA treatment records and scheduled him for medical examination, which he attended. A March 2011 letter asked the Veteran to identify any private treatment providers and complete authorization forms to allow VA to obtain such records; the Veteran did not respond to this letter. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim. Additionally, in November 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge 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). Here, during the November 2010 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. The Veteran testified as to his current nasal fracture and sinus symptoms. The record was held open for an additional 60 days at the Veteran's request to allow for the submission of additional evidence. 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," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge 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. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Increased Rating A. Relevant Statutes and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Compare Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern). 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, 509-510 (2007). The following analysis is therefore undertaken with the possibility that "staged rating"(assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted. The Veteran's residuals of a nasal fracture are currently rated by analogy under the diagnostic codes for traumatic deviation of the nasal septum and chronic frontal sinusitis. 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. 38 C.F.R. § 4.27. A traumatic deviation of the nasal septum with a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side warrants a 10 percent rating. This is the highest schedular rating available under the diagnostic code. 38 C.F.R. § 4.97, 6502. Chronic frontal sinusitis with 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. A rating of 30 percent is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. A rating of 50 percent is warranted 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. 38 C.F.R. § 4.97, 6512. The Board notes that the criteria for compensable ratings of sinus conditions are stated in the conjunctive, which means that all three conditions must be met (headaches, pain, and crusting or purulent discharge) to warrant a rating of 10 percent or greater. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (finding that the use of the conjunctive "and" in the criteria for a 40 percent rating for diabetes - "insulin, restricted diet, and regulation of activities" - meant that entitlement to that rating required all three criteria to be met.) When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Nasal Fracture The Veteran contends that a higher rating is warranted due to his ongoing treatment for chronic sinusitis and chronic nasopharyngitis. A March 2005 VA treatment note reflected the Veteran's complaints of nasal congestion with a runny nose for one week as well as post-nasal drip with a dry cough. Physical examination revealed mild nasal edema with no sinus tenderness or evidence of sinusitis. A September 2007 VA treatment note indicated that the Veteran had swelling and pain just to the right of his nose with foul-tasting mucus drainage from his nose for four days. Right maxillary sinus tenderness was found on physical examination. Amoxil was prescribed and he was instructed to continue flunisolide nasal spray to reduce nasal edema and to promote sinus drainage. An April 2008 VA examination report noted that the Veteran had difficulty breathing through the nose. There were no episodes of sinusitis during the past 12-month period reported by the Veteran. Physical examination found the nasal vestibule, turbinates, septum and sinus to be normal. There were no obstructions or polyps found. A June 2008 VA treatment note reflected the Veteran's reports of tenderness over the maxillary sinus as well as a left lower tooth infection. He was prescribed Augmentin. A July 2008 treatment summary, authored by a private physician, indicated that the Veteran suffered from chronic sinusitis that required recurrent antibiotic therapy and that he had documented X-ray changes on most of these occurrences. The Veteran was noted to respond to antibiotic therapy and had "clearing." In addition, he was noted to suffer from chronic nasopharyngitis that required steroid nose spray along with an antihistamine, which was used in attempt to keep these episodes of sinusitis to a minimum. An August 2009 VA treatment note indicated that the Veteran had presented with two weeks of nasal congestion and fevers. A June 2010 VA treatment note reflects the Veteran's reports of nasal allergies with post-nasal drip causing a cough and white mucus. Physical examination revealed no sinus tenderness. During a November 2010 hearing, the Veteran testified that he had experienced sinus infections and drainage for which he took medication, including antibiotics. An April 2011 VA examination report reflected the Veteran's reports of six episodes of sinusitis per year, each lasting seven to 14 days, and that such episodes consisted of headaches, purulent discharge and sinus pain. Other symptoms were reported to include a constant breathing difficulty and nasal congestion. There was no history of incapacitating episodes. Physical examination was negative for evidence of sinus disease, soft palate abnormality, signs of nasal obstruction, nasal polyps, septal deviation, permanent hypertrophy of turbinates from bacterial rhinitis or tissue loss, scarring or deformity of the nose. The larynx appeared normal and there was no evidence of sinus disease or speech impairment found by the examiner. An April 2012 VA addendum report, completed by the same examiner who had conducted the April 2011 VA examination, noted that there was no evidence of incapacitating disabilities related to the Veteran's sinuses or prolonged courses of antibiotics. In addition, the examiner noted that there was no evidence of osteomyelitis, pain, tenderness, crusting or purulent drainage. Although the Veteran complained of persistent residual facial numbness following surgery for a nasal fracture in 1971, the examiner noted that there was no objective findings on examination. An April 2012 VA sinus X-ray was noted to have revealed air fluid levels in the maxillary sinuses consistent with infection or inflammation. An April 2012 VA treatment note reflected the Veteran's complaints of constant rhinorrhea, ocular pruritis, nasal congestion and cough. Sinus pain or pressure and purulent rhinorrhea were denied. He reported the occasional use of over-the-counter antihistamines as well as steroid dosepak. Physical examination found the nose to be clear to anterior rhinoscopy. The provider noted that the Veteran's constellation of symptoms were likely due to a moderate allergy. With regards to the Veteran's residuals of a nasal fracture, for the entire appellate period, the Veteran has subjectively complained of nasal congestion and breathing difficulties. He reported experiencing six episodes of sinusitis per year that consisted of headaches, purulent discharge and sinus pain in April 2011. In April 2008, he reported experiencing no episodes of sinusitis per year. Although the Veteran variously reported using antibiotics to treat his sinusitis, and a July 2008 treatment summary indicated that the Veteran required recurrent antibiotic therapy, incapacitating episodes of sinusitis were denied by the Veteran in April 2011 and there is no indication that any antibiotic use was prolonged. An April 2012 VA examiner also noted that there were no prolonged courses of antibiotics. Moreover, there is no indication that the Veteran underwent any surgeries related to his sinusitis, that he suffered from chronic osteomyelitis or that his sinusitis was near constant as he reported no episodes of sinusitis in the past 12 months in April 2008 and an April 2011 VA examiner found no objective evidence of sinus disease. A rating in excess of 10 percent is therefore not warranted as the record did not demonstrate three or more incapacitating episodes of sinusitis per year or more than six non-incapacitating episodes per year. 38 C.F.R. § 4.97, 6502-6512. In addition, the Board has considered whether a higher or separate rating is warranted under any other potentially applicable diagnostic code related to diseases of the nose. The Veteran has not lost of part of his nose, did not have a scarred nose, did not have nasal polyps or greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, did not experience speech impairments and did not have abnormal findings related to the larynx, as documented in the VA examination reports and clinical evidence; therefore, consideration of Diagnostic Codes 6504 through 6523 are not warranted. In addition, the Board has considered whether a higher or separate rating is warranted under any other potentially applicable diagnostic code related to headaches as the Veteran had reported headaches associated with his sinusitis. The Board notes that it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Such is not the case with regards to the Veteran's residuals of a nasal fracture. First, although the Veteran reported headaches associated with his sinusitis, he does not experience prostrating headaches as documented in the VA examination reports and clinical evidence. Moreover, the symptoms associated with the Veteran's disability-to include headaches-are contemplated in the application of Diagnostic Code 6512. Any additional separate rating for headaches under Diagnostic Code 8100 would result in double compensation for the same symptomology in violation of anti-pyramiding provisions. See 38 U.S.C.A. § 1155, 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993). Consideration of Diagnostic Code 8100 is therefore not warranted. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected residuals of a nasal fracture; however, the Board finds that his symptomatology has been stable throughout the appeal. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether this matter should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected residuals of a nasal fracture with the established criteria found in the rating schedule. The Board finds that the Veteran's residuals of a nasal fracture symptomatology are fully addressed by the rating criteria under which such disability is rated. In this regard, all of the Veteran's sinus symptomatology are contemplated by the rating criteria, to include those symptoms which are not specifically enumerated. There are no additional symptoms of his residuals of a nasal fracture that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). For all the foregoing reasons, the Board finds that a rating in excess of 10 percent for residuals of a nasal fracture is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER A rating in excess of 10 percent for residuals of a nasal fracture, status-post submucous resection, rhinoplasty with chronic sinusitis and headaches is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for increased rating for residuals of a post-discectomy and left lower extremity radiculopathy so that he is afforded every possible consideration. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2; see 38 C.F.R. § 19.9. Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). With regards to the Veteran's claim for residuals of a post-discectomy, the Board notes that the Veteran repeatedly complained of pain that radiated into both his extremities. During his November 2010 hearing, the Veteran testified that his back pain radiated into his left hip and was "90 percent" on his left side and "10 percent" on his right side. A December 2010 private treatment summary indicated that the Veteran experienced "some" radicular symptoms in his right leg but the specific symptoms were not specified. A subsequent April 2011 VA examination report contained findings related to the left lower extremity only and a June 2012 addendum report indicated that electromyography (EMG) and nerve conduction velocity testing had revealed chronic L4-L5 polyradiculopathy but did not specify which extremity or extremities were affected. The Board notes that the Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides for separate ratings for objective neurologic abnormalities associated with a spinal injury. As such, on remand, clarification should be obtained as to the nature and severity of any right lower extremity neurologic impairments associated with the Veteran's service-connected residuals of a post-discectomy. With regards to the service-connected left lower extremity radiculopathy, the Board notes that Veteran testified in his November 2010 hearing that he experienced pain and numbness in his left foot and that it dragged while he walked. The diagnostic criteria for complete paralysis of the external popliteal nerve, under which the Veteran's left lower extremity radiculopathy is rated, provide for a higher rating where complete paralysis of the nerve is present. Complete paralysis of the nerve can be characterized by foot dangle and drops; the record suggests that the Veteran could be suffering from such symptoms. Although an April 2011 VA podiatry examination found decreased motor strength in the left foot and toes, no findings related to foot drop or dangle were sought or made. As such, on remand, clarification should be obtained as to the nature and severity of the left lower extremity radiculopathy, to include whether the Veteran experienced foot drop, foot dangle or any other symptoms consistent with complete paralysis. Finally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The Veteran's updated VA treatment records documenting treatment for his claimed lumbar spine and lower extremity radiculopathy should be obtained. Such records dated through July 2012 from the Birmingham VAMC are located in the Veteran's claims file. Any response received in association with this request should be memorialized in the Veteran's claims file. 2. Following the completion of the above development, and the receipt of any outstanding records, afford the Veteran for a VA examination to determine the current extent and severity neurological impairments associated with his service-connected residuals of a post-discectomy. All appropriate tests and studies should be performed, including EMG testing or nerve conduction studies (NCS), to assess the neurological impairment. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should address whether the Veteran has developed any neurologic abnormality (such as radiculopathy, peripheral neuropathy or sensory impairment) that can be associated with the service- connected post-discectomy in the right lower extremity. If so, please state the neurologic diagnosis or diagnoses and detail the severity and manifestations of this disability. This determination should also be expressed, if feasible, in terms of mild, moderate, or severe for the right lower extremity. With regards to the service-connected left lower extremity radiculopathy, the examiner should detail the severity and manifestations of this disability. This determination should also be expressed, if feasible, in terms of mild, moderate, or severe for the left lower extremity. In addition, the examiner should specifically indicate whether such neurological manifestations included foot drop, a slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension of the proximal phalanges of toes, weakened adduction or anesthesia that covers the entire dorsum of the foot and toes. In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs