Citation Nr: 1337625 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-11 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial compensable rating for temporomandibular joint (TMJ) dysfunction for the period from December 22, 1997, to July 7, 2013. 2. Entitlement to an initial rating in excess of 10 percent for TMJ dysfunction for the period from July 8, 2013, to the present. 3. Entitlement to an initial compensable initial rating for traumatic arthritis of the distal right third finger. 4. Entitlement to an initial compensable initial rating for sinusitis. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to January 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2004 and June 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The October 2004 rating decision granted service connection for sinusitis and traumatic arthritis of the distal third finger of the right hand and assigned separate, noncompensable evaluations effective from December 22, 1997. The June 2005 rating decision granted service connection for TMJ dysfunction and assigned a noncompensable evaluation effective from December 22, 1997. The Veteran provided testimony at a February 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal was the subject of a Board decision and remand dated in May 2013. The case has since been returned to the Board for appellate review. In a July 2013 rating decision, the Agency of Original Jurisdiction (AOJ) granted a higher initial rating of 10 percent for TMJ dysfunction effective from July 8, 2013. Applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues of entitlement to higher initial evaluations for TMJ dysfunction remains on appeal and has been recharacterized as reflected on the title page. The Virtual VA paperless claims processing system contains electronic records of VA treatment from August 2009 to July 2013. Those records were considered in a July 2013 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. For the period from December 22, 1997, to the present, the Veteran's TMJ condition has consistently been manifested by crepitus and pain, so as to result in some functional impairment, but the preponderance of the evidence shows that the condition has not been manifested by symptoms or functional impairment meeting or approximating limitation of inter-incisal range of motion of 21 to 30 mm. 2. For the full period from December 22, 1997, to the present, the Veteran has not experienced symptoms of arthritis of the right third finger meeting or approximating favorable or unfavorable ankylosis of the finger or limitation of extension of more than 30 degrees, and he has been able to touch the pad of the right third finger to his thumb. 3. For the period from December 22, 1997, to May 30, 2012, the Veteran experienced intermittent symptoms of sinusitis, but not 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. 4. For the period from May 31, 2012, to the present, the Veteran has not experienced symptoms of sinusitis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, but no higher, for TMJ dysfunction for the period from December 22, 1997, to July 7, 2013, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.59, 4.150, Diagnostic Code 9905 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for TMJ dysfunction for the period from July 8, 2013, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.150, Diagnostic Code 9905 (2012). 3. The criteria for an initial compensable rating for traumatic arthritis of the distal right third finger are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, Diagnostic Codes 5226, 5229 (2012). 4. For the period from December 22, 1997, to May 30, 2012, the criteria for a 10 percent disability rating for sinusitis are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.97, Diagnostic Code 6513 (2012). 5. For the period from May 31, 2012, to the present, the criteria for a compensable initial disability rating for sinusitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.97, Diagnostic Code 6513 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 claimant and his or her 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 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. 38 C.F.R. § 3.159(b)(1). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for TMJ dysfunction, traumatic arthritis of the distal right third finger, and sinusitis. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issues of entitlement to a higher initial evaluation for these disabilities. Moreover, a June 2008 notice letter from VA described how disability ratings are assigned for the disabilities at issue in this appeal, including setting forth the relevant rating criteria and describing the types of evidence that could support the claims for higher disability ratings. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). Newly received records of VA treatment from August 2009 to July 2013 were obtained in compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (entitlement to substantial compliance with Board remand instructions). In June 2013, the Veteran was furnished a letter requesting sufficient information, as well as the necessary authorizations, to enable VA to obtain any additional evidence pertinent to the issues on appeal. This letter specifically requested that he identify all VA and non-VA health care providers who have treated his TMJ dysfunction, right third finger disability, and sinusitis from December 1997 to the present. No response to the letter has been received. With respect to VA examinations, the Board notes that, when VA undertakes to provide a VA examination or obtain a VA opinion, it should ensure that the examination or opinion is adequate. In this case, the Board finds that the July 2013 VA examination reports are adequate, as they are predicated on all pertinent evidence of record and the Veteran's own reports, as well as on a physical examination. They fully address the rating criteria that are relevant to rating the disabilities in this case, and the opinions provided are supported by clear rationales. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Further, for the reasons discussed above, these examination reports were provided in substantial compliance with the Board's May 2013 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate each claim has been obtained. There is no indication in the claims file that there are additional, available relevant records that have not yet been obtained. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. TMJ Dysfunction The Veteran's TMJ dysfunction is currently assigned a noncompensable evaluation for the period from December 22, 1997, to July 7, 2013, and a 10 percent evaluation effective as of July 8, 2013, pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9905. Under Diagnostic Code 9905, which is used for rating limitation of motion of temporomandibular articulation, a range of lateral excursion of 0 to 4 mm or an inter-incisal range of 31 to 40 mm is rated as 10 percent disabling. Limitation of the inter-incisal range from 21 to 30 mm warrants a 20 percent evaluation. Limitation of the inter-incisal range from 11 to 20 mm warrants a 30 percent evaluation. A maximum 40 percent evaluation is warranted where limited motion of the inter-incisal range is from 0 to 10 mm. It is noted that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905. The Veteran's service treatment records in June 1985 indicate that he was seen for complaints of jaw pain that was secondary to a fight while he was stationed in Heidelberg, Germany. The treating clinician's impressions included status post fracture of the cortical plate and inferior border with no mobility of segments. At a VA dental examination in September 1998, the Veteran related a history of "status post facture of the cortical plate and inferior RDR of the mandible." It was assumed the Veteran meant the inferior border of the mandible. The Veteran was noted to have no X-rays to support his claim, and there was no evidence on the Panorex X-ray that was taken on the day of the examination. The examiner found the Veteran to have advanced periodontal disease and caries of several teeth. The examiner asserted that he could not comment on whether or not there was ever a fracture of any part of the mandible. At a VA examination in April 2004, the Veteran provided an in-service history of having been hit in the jaw with a blackjack and mugged in Heidelberg. On physical examination, the mandible was normal, the maxilla was normal, and there were no abnormal findings of the ramus and palate. He had interincisor range of motion of more than 40 mm, and the range of lateral excursion on the right was more than 4 mm. Range of motion of lateral excursion on the left was also more than 4 mm. The Veteran had loss of teeth number 30 and 45, which could be restored by suitable prosthesis. After examination and X-rays, the diagnosis was temporomandibular dysfunction and joint noise. Full mouth X-rays were noted to show a normal-looking temporomandibular joint. Subjective factors were that there was noise with chewing. Objectively, it was noted to be worse when the Veteran moved his jaw. The examiner elaborated that current symptoms were noise on opening and closing with no limitation of motion range and no interference with eating. The examiner indicated that there was no functional impairment resulting from the dental condition, other than occasional discomfort, and that there had been no time lost from work. In a statement dated in April 2007, the Veteran reported frequent jaw pain. At a VA dental examination in August 2010, the Veteran was found to have no loss of bone of the maxilla, no malunion or nonunion of the maxilla, no loss of bone of the mandible, no nonunion of the mandible, no malunion of the mandible, no limitation of motion at the temporomandibular articulation, no loss of bone of the hard palate, no evidence of osteoradionecrosis, and no evidence of osteomyelitis. There was also no speech difficulty. The examiner opined that the Veteran's current oral status was solely due to neglect. A May 2012 examiner opined that the Veteran did not currently have and had never had a temporomandibular joint condition. The Veteran told the examiner that, upon routine dental examination in 1985, he mentioned occasional popping and clicking of the left side temporomandibular joint with no pain reported. He stated that the dentist examined him in service, but felt that the examination was within normal limits and no treatment was prescribed. The May 2012 VA examiner indicated that he was unable to find any note in the dental service treatment records to confirm this report. The examiner also noted that the Veteran did not report that flare-ups impacted the functioning of the temporomandibular joint. The May 2012 VA examiner measured range of motion for lateral excursion as greater than 4 mm with no objective evidence of painful motion. Range of motion for opening the mouth was rated as greater than 40 mm with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions, and post-test range of motion for lateral excursion was still greater than 4 mm. Post-test range of motion for opening the mouth, measured by inter-incisal distance, was also greater than 40 mm. The Veteran was found to have no additional limitation of range of motion of either temporomandibular joint following repetitive-use testing, and there was no functional loss or functional impairment of either temporomandibular joint. The examiner specifically found that there was no functional loss for either the right temporomandibular joint or for the left temporomandibular joint. The examiner further found that the Veteran did not have localized tenderness or pain on palpation of the joint or soft tissues of either temporomandibular joint. In addition, the examiner noted that the Veteran did have clicking or crepitation of the joints or soft tissues of both temporomandibular joints. The May 2012 VA examiner found no scars (surgical or otherwise) related to any TMJ-related diagnosed conditions or to the treatment of any such conditions. The examiner indicated that there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to any such conditions. The May 2012 VA examiner further indicated that no temporomandibular joint imaging studies had been performed and that no results were available. The examiner noted that there were no other significant diagnostic test findings and/or results. Additionally, the examiner opined that the Veteran's temporomandibular joint condition did not impact his ability to work. At his February 2013 Board hearing, the Veteran described difficulties with chewing and swallowing, as well as popping and cracking noises associated with his TMJ dysfunction. At a July 2013 VA examination, the examiner diagnosed the Veteran as having a temporomandibular joint condition. He recounted the history of the Veteran's TMJ condition, and noted that the Veteran reported flare-ups that impact the function of the temporomandibular joint. The Veteran indicated that his condition was most noticeable when he tried to sleep on his right side, as he would get pain in the joint area. He also stated that popping of the joint could be annoying when talking or yawning. He further indicated he had significant pain if he tried to chew any substantial food, which caused him to avoid many foods. On examination, the range of motion for lateral excursion was greater than 4 mm, and objective evidence of painful motion began at greater than 4 mm. The range of motion for opening the mouth, measured by inter-incisal distance, was greater than 40 mm, and objective evidence of painful motion began at greater than 40 mm. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test range of motion for lateral excursion was greater than 4 mm, and post-test range of motion for opening the mouth, measured by inter-incisal distance, was greater than 40 mm. The examiner indicated that the Veteran did have additional limitation in range of motion of the right temporomandibular joint following repetitive use testing, with less movement than normal and pain on movement. He indicated that the Veteran had localized tenderness or pain on palpation of the soft tissues of the right TMJ. He also noted that the Veteran had clicking or crepitation of the joints or soft tissues of both TMJs. The examiner further indicated that the Veteran did not have any scars (surgical or otherwise) related to his TMJ condition or treatment for his condition. He indicated that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran's TMJ condition. The examiner noted that imagining studies of the TMJ had been performed and that the results were available. He indicated that there was no degenerative or traumatic arthritis documented and that there were no other significant diagnostic test findings or results. The examiner stated that the Veteran's TMJ condition had not impacted his ability to work. He noted that that the Veteran had retired from the Department of Justice immigration service in June 2008 and that his TMJ pain was difficult to differentiate from his chronic sinus headaches. It is evident from the examination results of record that the Veteran does not meet the schedular criteria for an initial compensable rating for his TMJ condition based on limitation of range of motion alone. The VA examination reports consistently indicate that lateral excursion is greater than 4 mm and that the inter-incisal range is greater than 40 mm. See 38 C.F.R. § 4.150, Dialogistic Code 9905. Nevertheless, the Veteran's lay testimony and aspects of the examination reports suggest that the Veteran has painful motion of the jaw, discomfort, and crepitus of the jaw in the form of clicking or popping on one or both sides. Therefore, under a liberal interpretation of the law as applied to the facts found in this case, the Board finds that a rating of 10 percent is warranted for the Veteran's TMJ condition, for the full period from December 22, 1997, to the present. See 38 C.F.R. § 4.59, DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Although the VA examiners have had different opinions in this regard, the Veteran's lay testimony is competent evidence to indicate that he has experienced this set of symptoms for the full rating period. However, the next higher rating of 20 percent is not warranted for any staged period or for the full period from December 22, 1997, to the present. In this regard, the preponderance of the evidence shows that the Veteran has not experienced limitation of motion, or the functional impairment equivalent, to 21 to 30 mm. See 38 C.F.R. § 4.150, Diagnostic Code 9905. Consequently, a higher initial rating of 10 percent for the Veteran's TMJ condition is granted for the period from December 22, 1997, to May 30, 2012; and a higher initial rating in excess of 10 percent is denied on or after May 31, 2012. II. Traumatic Arthritis of the Distal Right Third Finger The Veteran is currently assigned a noncompensable evaluation for traumatic arthritis of the distal right third finger pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5229. Under Diagnostic Code 5229, limitation of motion of the index or long finger warrants a 10 percent disability rating for a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. A gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension is limited by no more than 30 degrees, warrants a noncompensable (0 percent) evaluation. Under Diagnostic Code 5226, a 10 percent rating is warranted for ankylosis of the index or the long finger of either the major or minor extremity. The Veteran's service treatment records show that he was seen in November 1983 for an injured right hand third distal finger injury. He had apparently pulled and twisted the finger while playing football. There was tenderness on palpation of the second joint with possible edema. Private records of treatment and evaluation in 1996 and 1997 indicate that the Veteran had bilateral carpal tunnel syndrome and cervical spine radiculopathy on the left side. In August 1996, he was treated for complaints in the wrists and hands. The Veteran identified the onset of pain in his wrists and hands as following a motor vehicle accident in June 1995. He also identified numbness and tingling in the fingers, especially in the middle three digits. He was diagnosed as having bilateral carpal tunnel syndrome. On private examination in August 1997, his hands were nontender, and he was able to approximate all fingers to the midpalmar crease. At a VA examination in April 2004, the Veteran provided a history of his finger being stomped on by muggers in Germany in 1985. He stated he was treated with rest and aspirin. He also noted that, through the years, he had pain of the right hand, especially the index and middle fingers. He described the pain as occurring daily and lasting for a few hours. He stated he would lose grip and noted the shooting of his firearm was affected because he was right-handed. The Veteran indicated that he took ibuprofen and Relafen daily, and he described functional impairment due to the right hand condition as loss of grip. He also indicated he was unable to do lifting and that shooting was affected, but he stated that he had no lost time from work. On physical examination, the Veteran was noted to be right-hand dominant. He could make a fist with both hands, and he was able to tie his shoelaces, fasten buttons and pick up a piece of paper and tear it without difficulty. He was also able to approximate the tips of all the fingers with the proximal transverse crease of his palms. His hand strength was normal bilaterally. On range of motion of testing of the right long finger, the Veteran had flexion deformity at DIP at 10 degrees with normal PIP flexion 100 degrees and MP flexion 90 degrees. By comparison, the left long finger was normal, with DIP flexion of 90 degrees, PIP flexion of 100 degrees, and MP flexion of 90 degrees. A neurologic examination of the upper and lower extremities was normal bilaterally, and motor strength and reflexes were normal in the upper and lower extremities bilaterally. X-rays of the right hand revealed osteoarthritis of the distal interphalangeal joint of the 3rd finger, which the examiner opined could be post-traumatic. Early osteoarthritic changes of the interphalangeal joint of the thumb were also noted. The diagnosis was traumatic arthritis of the right hand. Subjectively, the Veteran was noted to have a smashing injury to the right hand while in Germany in 1985. He reported experiencing right hand pain, especially in the middle and index fingers, since that time. The examiner opined that examination of the right hand was unremarkable, except for the right middle finger, which revealed a mild flexion deformity at the DIP joint. In the addendum report, the examiner elaborated that the Veteran was status post right hand injury with traumatic arthritis and flexion deformity at the middle finger DIP joint. In another addendum report, after review of the claims file, the examiner opined that the right third finger disability was a result of the documented in-service football injury in 1983 at which time the diagnosis was rule out finger fracture. In a statement dated in April 2007, the Veteran reported having right hand pain, right hand and wrist throbbing, and total numbness of the right hand at times. VA treatment records dated in September 2009 show that the Veteran complained of tingling and numbness in his right arm and medial three fingers of that arm. The assessment was neck pain with radiculopathy. At VA treatment in March 2010, a clinical evaluation of the upper extremities was normal. At VA treatment in June 2010, the Veteran was noted to have diabetes with neuropathy. An August 2010 VA problem list includes an assessment of mallet finger with an onset in 1983. At a May 2012 VA examination, the examiner recorded the following history: The Veteran's right hand was stomped on by muggers in Germany in 1985 with conservative treatment thereafter. In September 2009, the Veteran had bilateral upper extremity neuropathy symptoms with a history of neck problems and was diagnosed with radiculopathy. In August 2010, he reported working as a volunteer firefighter, teaching hunting safety, and working as a cashier. The examiner noted that the Veteran was found to have equal grips and motor strength on examination in April 2011 and November 2011. The May 2012 VA examiner noted that, at a VA examination in April 2004, the Veteran described having pain daily, especially in the 2nd and 3rd digits, which resulted in loss of grip and difficulty shooting or lifting. X-rays showed osteoarthritis of the distal interphalangeal (DIP) joint of the right third finger and early osteoarthritis of the thumb. An examination revealed normal dexterity and strength with flexion deformity of the right long finger of ten degrees at the DIP joint with full flexion of digits otherwise. There was no ankylosis. The Veteran's service treatment records were noted to reveal an injury to the right hand 3rd digit in 1983 when he caught his hand in a football player's jersey resulting in twisting and pulling of his finger. The May 2012 VA examiner diagnosed the Veteran as being status post right third DIP mallet fracture with residual deformity and degenerative joint disease. Presently, he had daily stiffness in DIP with intermittent knife sharp shooting pain towards the proximal interphalangeal (PIP) joint from the DIP joint. The first two fingers of the right hand were noted to go numb and burn, which the Veteran attributed to his neck problems, which he described as unrelated to the problems for which the VA examination was being conducted. The Veteran was noted to be right-handed. He did not report that flare-ups impacted the function of the hand. There was no gap between the thumb and the pads of the fingers. There was also no gap between the fingertips and the transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips. The May 2012 VA examiner found that there was limitation of extension and evidence of painful motion of the long finger. Specifically, it was found that extension limited by no more than 30 degrees (unable to extend finger fully, extension limited to between 0 and 30 degrees of flexion). Painful motion was found to begin at extension of no more than 30 degrees (unable to extend finger fully, painful extension begins between 0 and 30 degrees of flexion). There was no additional limitation of motion for any fingers after testing, nor was there any gap between the thumb pad and the fingers following the testing. In addition, there was no gap between any fingertip and the proximal transverse crease of the palm in attempting to touch the palm with the fingertip post-test. There was limitation of extension for the right long finger post-test. Extension was limited by no more than 30 degrees (unable to extend finger fully, extension limited to between 0 and 30 degrees of flexion). The Veteran was found not to have additional limitation in range of motion of any of the fingers or thumbs following repetitive-use testing. There was limitation of extension of the long finger post-test. Extension was limited by no more than 30 degrees (unable to extend finger fully, extension limited to between 0 and 30 degrees of flexion). There was functional loss or functional impairment of the long finger, but no additional limitation in range of motion of any of the fingers or thumbs following repetitive-use testing. There was less movement than normal of the right long finger, and there was pain on movement and deformity of the right long finger. There was a nodule over the third DIP joint with -5 degrees extension deformity. The Veteran's hand grip was 5/5, and there was no ankylosis of the thumb or fingers. The Veteran was found to have no hand, thumb, or finger condition that impacted his ability to work. His motor strength was 5/5 for the upper extremities bilaterally for all fingers and both wrists, including grip. A report of a May 2012 X-ray report indicates that routine views of the right fingers demonstrated, with respect to the right third finger, elongated deformity of the distal phalangeal base of the third 3rd digit consistent with a previous healed mallet type fracture with subsequent degenerative changes. Degenerative changes to the other fingers of the right hand were noted as well. There were no acute fractures or destructive lesions, and mineralization was normal. The impression was multifocal remote posttraumatic/degenerative changes. At his February 2013 Board hearing, the Veteran described neurological symptoms in his hands that he felt might be related to finger joint inflammation associated with his service-connected disability. He also indicated that he could not actively touch his finger to his palms or make a fist and stated that attempting to do so could be very painful. At a July 2013 VA examination, the examiner reviewed the claims file and provided a diagnosis of degenerative joint disease (DJD) in the distal interphalangeal (DIP) joint of the long finger on the right hand, status post injury. The Veteran was noted to be right-hand dominant. Flare-ups were not reported. The examiner noted limitation of extension by no more than 30 degrees with no objective evidence of painful motion. There was no additional limitation in the range of motion following repetitive-use testing. The examiner noted functional impairment after repetitive use due to less movement than normal and deformity. Ankylosis was not present. Imaging studies demonstrated the presence of arthritis in multiple joints of the right hand. Based on the results of the examination, as well as a review of the claims file, the examiner opined that the Veteran's described numbness of the 2nd, 3rd, and 4th fingers of the right hand is less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected disability of the right third finger. The examiner noted that the Veteran had a known diagnosis of bilateral carpal tunnel syndrome (bilateral median neuropathy) affecting the 2nd, 3rd, and 4th fingers of the right and left hands. It was stated to be a permanent disability in 1997, as documented in the claims file. Therefore, he reasoned that it is more likely that the Veteran's carpal tunnel syndrome has caused the numbness of the fingers of the right hand as well as the left. Additionally, the examiner explained that it is not likely that the degenerative joint disease of a distal area of a finger would cause a proximal neuropathy because it is not anatomically possible for a distal arthropathy to cause proximal nerve loss. The July 2013 VA examiner's medical opinion provides evidence showing that the Veteran's bilateral neurological disability is separate and distinct from his arthritis of the right third finger. As the opinion is well explained and based on an accurate history and relevant examination, the Board finds it to be of high probative value. Consequently, the Board concludes that a rating based on neurological disability of the 2nd, 3rd, and 4th fingers due to carpal tunnel syndrome is not appropriate as part and parcel of the Veteran's service-connected right third finger disability. The Board also finds that a compensable rating is not warranted for the service-connected traumatic arthritis of the distal right finger at any point during the pendency of the appeal. The Board affords greater probative value to the consistent VA examination results that directly address the rating criteria than to the Veteran's lay descriptions of his right third finger disability, particularly because medical expertise is required to differentiate between the orthopedic symptoms and neurological symptoms. Thus, the preponderance of the competent, credible, and probative evidence shows that a compensable rating for traumatic arthritis of the distal third finger is not warranted under the criteria that require favorable or unfavorable ankylosis of the digit. See 38 C.F.R. § 4.71a, Diagnostic Code 5226. Further, there is some pain, but the examination results consistently show substantial range of motion of the finger, even with the effects of repetitive use and pain, such that extension is limited to no more than 30 degrees, and the finger can touch the pad of the thumb. Accordingly, the Board finds that the Veteran is not entitled to a higher initial evaluation for his traumatic arthritis of the distal right third finger. III. Sinusitis The Veteran is currently assigned a noncompensable evaluation for sinusitis pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6513. Under that diagnostic code, a 10 percent rating is warranted for 1 or 2 incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires 3 or more incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or for near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula under 38 C.F.R. § 4.97 provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The Veteran's service treatment records dated from July 1979 to January 1987 show that the Veteran was diagnosed with sinusitis in 1980. His sinus problem occurred intermittently with sinus headaches and sometimes required treatment with antibiotics. On a dental questionnaire in January 1985, he reported a history of a sinus condition. At a private orthopedic evaluation in January 1996, the Veteran gave a history of "chronic sinus infections over the past year." A private record of treatment in September 1997 indicates that the Veteran complained of a chronic sinus infection. He was diagnosed as having chronic sinusitis and treated with antibiotics. At a VA dental examination in September 1998, the Veteran complained of recurrent sinus infections since 1980, although no examination of the sinuses was conducted. In a statement received in September 1999, the Veteran described an injury to the sinuses during in-service dental treatment and continuing problems with his sinuses since that time. In a statement dated in November 1999, the Veteran wrote that he experienced low-grade sinus and ear infections, which tended to flare up on a regular basis. At an April 2004 VA examination, the Veteran related a history of his sinus problems occurring intermittently, perhaps once per week, lasting for two hours, and associated with sinus headaches and sometimes requiring antibiotics. April 2004 X-rays of the sinuses showed that the sinuses had post-inflammatory changes in the left half of the frontal and both maxillary sinuses with more prominent changes on the left. The April 2004 VA examiner diagnosed the Veteran as having sinusitis. Subjectively, he was found to have sinusitis with intermittent symptoms of sinusitis attacks resulting in headaches and antibiotic treatment. Objectively, the examination of the sinuses at the time of examination showed no tenderness or presence of mucus. On examination of the ear, nose, and throat in April 2004, the Veteran was found to have no active sinusitis and no tenderness or purulent discharge from the nose. In an addendum report in April 2004, after review of X-rays and the claims file, the examiner opined that the sinus condition was related to dental surgery in 1980. In a statement dated in April 2007, the Veteran reported recurrent sinusitis with pressure and pain varying in intensity and treated with antibiotics and painkillers. A March 2010 VA X-ray included findings of no intraorbital metallic foreign bodies, bony orbits and maxillofacial structures intact, and no significant sinus mucosal abnormalities. The purpose of the X-ray was to ensure there were no metallic bodies in the Veteran's head, so that he could undergo a March 2010 MRI of the cervical spine. At a VA outpatient clinic in November 2010, the Veteran was seen at a routine follow-up appointment for elevated blood pressure, diabetes, and pain. Among the several health care matters discussed in the report of treatment was the Veteran's description of "[c]hronic sinus infection," since 1980. (Quotations in original treatment report.) The Veteran recounted that, when he has one, he gets light-headed and feels dehydrated, has a "mild" fever (quotations in original), and it just goes away. On clinical examination of the head, ears, eyes, nose and throat, the treating physician found no suspicious lesions of the face or ears, no nasal discharge, and the oropharynx had moist mucus membranes and no exudates. In this context, it was further noted that the Veteran had a tobacco use disorder (using smokeless tobacco orally). His oral cavity was examined, his problem list was updated accordingly, and he was strongly encouraged to stop. In a February 2011 VA outpatient care treatment note, there was a note that the Veteran had a sinus infection that "moved down to his ears, messed him up, amoxicillin knocked out the infection, killed the good bacteria, and gave him a major stomach upset." The time frame of the sinus infection was not indicated. At a May 31, 2012, VA examination, the examiner recounted a history of the Veteran having been originally diagnosed with sinusitis in the service in approximately 1980. It was noted that in November 2010 the Veteran gave a history of chronic sinus infection since 1980. He indicated that, when he would get a sinus infection, he felt light-headed and dehydrated, experienced a "mild" fever (quotes in original examination report), and it would just go away. X-ray reports from 2004 were noted to show post-inflammatory changes in the left half of the frontal and bilateral maxillary sinuses. After reviewing the claims file and recounting the pertinent post-service history, the May 2012 VA examiner diagnosed the Veteran as having a remote history of chronic sinusitis that had since resolved and was asymptomatic. He opined that there was no current diagnosis. The examiner related that the Veteran did not recall having a sinus infection for the past four years. It was noted that, on the way to the examination, the Veteran noted some change in pressure with altitude and hills affecting his sinuses, but otherwise he described no symptoms. The Veteran stated that things were better since he retired to a drier climate. The examiner indicated by a checked box that the Veteran had sinusitis. When asked whether the Veteran had any other pertinent physical findings, complications, conditions, signs or symptoms related to sinusitis, the examiner indicated that the right tympanic membrane was occluded with cerumen. The left tympanic membrane was noted to be clear. The nares were patent bilaterally with mild crusting. The oropharynx was clear with poor dentition. There was no sinus tenderness and no lymphadenopathy. March 2010 X-rays of the sinuses were noted have been normal with no significant sinus mucosal abnormalities. The examiner opined that the Veteran's sinusitis did not impact his ability to work. At his February 2013 Board hearing, the Veteran described ongoing treatment for sinusitis at VA, including the intermittent prescription of antibiotics. At a July 2013 VA examination, the examiner reported that the Veteran did not have sinusitis at that time. The examiner noted that, although the Veteran had sinusitis in service and at the time of his examination in 2004, he did not currently have sinusitis. The examiner elaborated that imaging studies failed to show any evidence of sinusitis, and clinically, there was no evidence of the condition; therefore, a current diagnosis of sinusitis was not warranted. Affording the benefit of the doubt in favor of the Veteran, the Board finds that for the period from December 22, 1997, to May 30, 2012, the criteria for a 10 percent rating were met or approximated. Although there is some evidence suggesting otherwise, the Veteran reported recurrent sinus infections, described his symptoms and x-rays in 2004 revealed post-inflammatory changes. It was also noted in 2004 that he had required the use of antibiotics. Therefore, resolving all reasonable doubt, the Board concludes that an initial 10 percent rating is warranted during this time period. However, the Veteran has not been shown to have 3 or more incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. Therefore, a rating in excess of 10 percent is not warranted for the period from December 22, 1997, to May 30, 2012. The Veteran has described weekly or daily headaches and similar symptoms during the rating period, yet on clinical evaluation, sinusitis has not been found. On this point, the July 2013 VA examiner noted that the Veteran had trouble differentiating his TMJ pain from his sinus headache pain. Thus, the findings of clinicians experienced in a relevant field of medicine are of a higher probative value than the Veteran's lay impressions. For the period beginning on May 31, 2012, the preponderance of the evidence is most consistent with a noncompensable (0 percent) rating, as there is no indication that the criteria for a 10 percent rating have been met. As noted, a 10 percent rating is warranted for 1 or 2 incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. See 38 C.F.R. § 4.97, Diagnostic Code 6513. The May 2012 VA examiner found that the Veteran had a remote history of sinusitis, which had resolved and was asymptomatic, and he opined that there was no current diagnosis. Similarly, the July 2013 VA examiner noted that, although the Veteran had sinusitis in service and at the time of his examination in 2004, he did not currently have sinusitis. The examiner elaborated that imaging studies failed to show any evidence of sinusitis, and clinically, there was no evidence of the condition; therefore, a current diagnosis of sinusitis was not warranted. The Board finds the May 31, 2012, and July 2013 examiners' opinions to be based on an accurate history and a detailed examination with well-reasoned explanations for the relevant findings. Thus, the examiners' opinions are of a very high probative weight. Although the Veteran is competent to describe ongoing treatment for what he perceived to be sinusitis, as he did at his February 2013 hearing, the Board finds the medical histories elicited by and the opinions provided by the VA examiners to be of greater probative weight and to be fully consistent with what is actually shown in the contemporaneous VA treatment records. As noted, the Veteran indicated in July 2013 that he had trouble differentiating between sinus headaches and TMJ pain. Further, the VA examiners have more medical expertise as to whether the Veteran still experiences sinusitis or whether the condition is resolved, so that their opinions on the subject are of a greater probative weight than the Veteran's description of symptoms, such as dizziness and pain, which he perceives to be ongoing symptoms of sinusitis. Accordingly, because the preponderance of the evidence shows that the Veteran's sinusitis has been essentially asymptomatic for the period from May 31, 2012, to the present, a noncompensable (0 percent) rating is warranted. Extraschedular Evaluation In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disabilities are not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected disabilities under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial rating of 10 percent for TMJ dysfunction for the period from December 22, 1997, to July 7, 2013, is granted. An initial rating in excess of 10 percent for TMJ dysfunction for the entire appeal period is denied. An initial compensable rating for traumatic arthritis of the distal right third finger is denied. An initial rating of 10 percent is granted for sinusitis for the period from March 22, 1997, to May 30, 2012. An initial compensable rating for sinusitis is denied on or after May 31, 2012. ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs