Citation Nr: 1338801 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 13-18 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a cervical spine disorder. 3. Entitlement to a compensable evaluation for structural changes to the right maxillary sinus. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. 5. Entitlement to an effective date prior to July 1, 2005, for the award of dependent compensation for the Veteran's spouse. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran's daughter J.B. and son J.C. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In September 2013, the Veteran's daughter J.B. and son J.C. testified at a hearing before the Board. The record was held open for 30 days to allow for the submission of additional evidence. No evidence has been received by the Board. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). The appeal of the reopened claim of entitlement to service connection for a cervical spine disorder, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), and entitlement to an effective date prior to July 1, 2005, for the award of dependent compensation for the Veteran's spouse, is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In March 2006, the RO denied the Veteran's claims of entitlement to service connection for tinnitus and a cervical spine disorder. The Veteran submitted a notice of disagreement with the decision but, after a statement of the case was issued, he did not perfect an appeal thereof and new and material evidence was not received prior to the expiration of the appellate period. 2. Evidence received since the expiration of the appellate period of the March 2006 rating decision is new and material, as the evidence is not cumulative and redundant, and it raises a reasonable possibility of substantiating the claims of entitlement to service connection for tinnitus and a cervical spine disorder. 3. The Veteran's tinnitus cannot be reasonably disassociated with his active military service. 4. The Veteran's structural changes to the right maxillary sinus have been manifested by a clogged right nasal passage with obstruction. CONCLUSIONS OF LAW 1. The March 2006 decision denying entitlement to service connection for tinnitus and a cervical spine disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.202, 20.302, 20.1103 (2005). 2. Evidence submitted to reopen the claim of entitlement to service connection for tinnitus is new and material, and therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Evidence submitted to reopen the claim of entitlement to service connection for a cervical spine disorder is new and material, and therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1154 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 5. The criteria for a 10 percent rating, but not more, for structural changes to the right maxillary sinus have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6502 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopening Previously Denied Claims By way of background, the Veteran submitted original claims of entitlement to service connection for tinnitus and a cervical spine disorder in June 2005. In a March 2006 rating decision, the RO denied the claims. In July 2006, the Veteran filed a notice of disagreement with the decision. Although a statement of the case was issued in February 2007, the Veteran did not perfect the appeal of the two claims by submitting a VA Form 9 or other correspondence containing the necessary information for a substantive appeal. See 38 C.F.R. § 20.202. No correspondence that could be construed as a substantive appeal was received within the period in which to appeal. Additionally, prior to the expiration of the appellate period, new and material evidence was not received which would have had to be considered in connection with the pending claim. See 38 C.F.R. § 3.156(b). As such, the March 2006 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.202, 20.302, 20.1103. In March 2012, the Veteran submitted claims to reopen the issues of entitlement to service connection for tinnitus and a cervical spine disorder. The RO confirmed and continued the denials in the October 2012 rating decision. Although not expressly determined, it appears that the RO reopened the claims as the merits of the claims were addressed. These claims have been certified to the Board for appellate review. Generally, although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). Although it appears that the RO found that new and material evidence had been submitted to reopen the Veteran's two claims, RO decisions are not binding on the Board and, consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claims. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the March 2006 rating decision is the last final disallowance with respect to both of the claims at issue herein, the Board must review all of the evidence submitted since then to determine whether the Veteran's claims should be reopened and re-adjudicated on a de novo basis. Evans, 9 Vet. App. at 282-83. At the time of the expiration of the appellate period of the March 2006 rating decision, the evidence of record included: the Veteran's service treatment records; VA examination reports, dated from April 1946 to February 2006; private treatment records, dated from September 1989 to April 2005; and claims for benefits and statements from the Veteran and his daughter J.B. Following the expiration of the appellate period of the March 2006 rating decision, new evidence added to the record includes: treatment records from the VA Medical Center (VAMC) in Butler, Pennsylvania, dated from May 2006 to November 2012; VA examination reports, dated from July 2008 to August 2012; claims for benefits and statements from the Veteran; and statements and hearing testimony from the Veteran's daughter J.B. and son J.C. A. Tinnitus The Veteran contended that he had tinnitus as a constant ringing in both ears, which he had over an extended period of time due to explosions and gunfire when he was in the military. During a September 2005 VA audiologic examination, he reported that he used to have ringing in his ears all the time, but then the ringing came and went, and that the ringing started in service. The examiner did not provide an opinion as to the possible relationship between the Veteran's tinnitus and military service. In denying this claim in the March 2006 decision, the RO noted that the Veteran's service treatment records were silent as to any complaint of or treatment for tinnitus, and determined that there was no evidence that tinnitus occurred in or was caused by service. The evidence since that time includes a January 2013 statement and September 2013 hearing testimony from J.B. She indicated her father the Veteran will complain about ringing in his ears one minute but he will not remember it the next minute because of his memory problems with dementia. J.B. recalls that the Veteran's ringing in his ears has existed as long as she can remember. This information is new and material evidence as the claim was previously denied in March 2006 based on a determination that there was there was no evidence that tinnitus occurred in or was caused by service. J.B.'s statements and testimony support the contention that the Veteran has tinnitus and has had it for many years. Thus, this evidence is not cumulative or redundant of the evidence that existed at the time of the prior denial, particularly when the credibility of the statements is presumed. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Board therefore finds that the evidence submitted since the expiration of the appeal period for the March 2006 rating decision is new in that it was not previously before VA decisionmakers. Moreover, the new evidence is material because the evidence pertaining to the existence of tinnitus and its possible relationship to service is not cumulative and redundant, and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus. The threshold for reopening a claim is low and this new evidence clearly meets that threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the claim is reopened because new and material evidence has been submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The reopened claim of entitlement to service connection for tinnitus is further addressed on the merits in the decision below. B. Cervical Spine Disorder The Veteran contended that he had cervical stenosis as a result of many parachute jumps during service or possibly related to his paralysis of the cranial nerve. During a February 2006 VA spine examination, he reported that there was no specific neck injury that he knew of, but he may have done some injuries to his neck as a paratrooper. The examiner provided a diagnosis of cervical spine fusion, which occurred in 2005, but the examiner did not provide an opinion as to the possible relationship between the Veteran's cervical spine disorder and military service. In denying this claim in the March 2006 decision, the RO noted that the Veteran's service treatment records were silent as to any complaint of or treatment for a cervical spine condition, and determined that there was no evidence that the cervical spine disorder occurred in or was caused by service. The evidence since that time includes a January 2013 statement and September 2013 hearing testimony from J.B. She indicated that two orthopedic surgeons informed the Veteran and her that the Veteran's condition is seen in men that have jumped out of planes. Additionally, a doctor informed the Veteran and J.B. that the Veteran's head may have jarred back when he was struck by shrapnel, which could have caused problems in the future. This information is new and material evidence as the claim was previously denied in March 2006 based on a determination that there was there was no evidence that a cervical spine disorder occurred in or was caused by service. J.B.'s statements and testimony that recall information relayed by orthopedic surgeons support the contention that the Veteran has a cervical spine disorder that may be related to events in service. Thus, this evidence is not cumulative or redundant of the evidence that existed at the time of the prior denial, particularly when the credibility of the statements is presumed. See Justus, 3 Vet. App. at 512-13. The Board therefore finds that the evidence submitted since the expiration of the appeal period for the March 2006 rating decision is new in that it was not previously before VA decisionmakers. Moreover, the new evidence is material because the evidence pertaining to the possible relationship between the Veteran's cervical spine disorder and service is not cumulative and redundant, and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disorder. The threshold for reopening a claim is low and this new evidence clearly meets that threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the claim is reopened because new and material evidence has been submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The reopened claim of entitlement to service connection for a cervical spine disorder is addressed further in the remand following the decision. II. Service Connection for Tinnitus Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In the case of any veteran who engaged in combat with the enemy in active service . . . during a period of war . . . [VA] shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b); see also 38 C.F.R. § 3.304(d). In June 2005, the Veteran stated that he had tinnitus as a constant ringing in both ears over an extended period of time due to explosions and gunfire when he was in the military. His service treatment records do not reference any complaint of or treatment for tinnitus or ringing in the ears. Nevertheless, The Veteran's service records document that he was assigned to the 502nd Parachute Infantry Regiment of the 101st Airborne Division during World War II. As a light mortar crewman (parachutist), he participated in the Battles or Campaigns of Rhineland, Ardennes and Central Europe. The service records document that he was wounded in action on January 3, 1945 in Belgium when he was struck in the right side of the neck and face by enemy high explosive shell fragments. As a result of his service, the Veteran was awarded the Purple Heart and Combat Infantryman Badge. This evidence from official records shows that the Veteran engaged in combat with the enemy. Experiencing ringing in the ears due to explosions and gunfire is consistent with the circumstances, conditions, and hardships of his combat service, including his injury from combat. Additionally, the service records show that the Veteran experienced right ear hearing problems in service as a result of the injury. This evidence is also consistent with his recollection that he experienced tinnitus. As there is no clear and convincing evidence to the contrary, the Board finds that the Veteran incurred tinnitus during active military service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The remaining question is whether the Veteran currently has tinnitus. He clearly indicated that he had tinnitus in his June 2005 statement and during the September 2005 VA audiologic examination. Although during more recent VA examinations in October 2008 and August 2012, the Veteran did not report experiencing tinnitus, his daughter J.B. explained that the Veteran will complain about ringing in his ears one minute but he will not remember it the next minute because of his memory problems with dementia. This is consistent with the record as the Veteran receives treatment for dementia and he may not recall whether he has had ringing in the ears when asked at certain times. When resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran currently has tinnitus. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As his tinnitus was incurred in active military service, the Board concludes that service connection is warranted for tinnitus. Without deciding whether VA's notice and development requirements have been satisfied for this claim, the Board is not precluded from adjudicating the tinnitus claim because the Board is granting service connection. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992). III. Sinus Disorder Rating A. Duties to Notify and Assist With respect to the Veteran's claim for increase for his service-connected sinus disorder, 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini, 18 Vet. App. at 112. The RO's August 2012 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was told that the evidence must show that his service-connected disability had increased in severity or gotten worse. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of this claim, including the opportunity to present pertinent evidence. The duty to assist the Veteran has been satisfied for this claim. The RO has obtained the Veteran's service treatment records and his identified VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Private treatment records have been submitted on behalf of the Veteran. Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, an August 2012 examiner reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id. As such, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. 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 Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. at 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). B. Analysis Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). 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 (2013). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). 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 (2013). 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). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of a claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms, which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2013). Therefore, with respect to each of the claims herein, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran was injured during service when he was struck in the right side of the neck and face by enemy high explosive shell fragments. This injury resulted in incomplete paralysis of the right seventh cranial nerve for which service connection was granted. In the March 2006 rating decision, the RO awarded service connection for structural changes of the right maxillary sinus as secondary to his service-connected disability and assigned a noncompensable rating. In March 2012, the Veteran filed a claim for increase for his sinus problems. The service-connected sinus disorder has been rated by analogy to Diagnostic Code 6504 for loss of part of the nose or scars. Under that diagnostic code, a 10 percent rating is warranted when there is loss of part of one ala or other obvious disfigurement. A 30 percent rating is warranted when there is an exposure of both nasal passages. 38 C.F.R. § 4.97, Diagnostic Code 6504. The evidence dated prior to the claim does not reflect that the Veteran has had this type of actual loss of part of the nose, or that there is an obvious disfigurement. An August 2012 VA sinus examination also does not show this type of impairment as the examiner found that the Veteran has a slightly smaller right nostril from a past soft tissue wound to the right naso-labial fold without any indication that there is loss of part of the nose. A separate August 2012 VA scar examination report expressly notes that there is no disfigurement present as a result of the sinus disorder. Additionally, the Veteran has not alleged that he has had loss of part of the nose, or disfigurement from the sinus disorder. Thus, a compensable rating is not warranted under Diagnostic Code 6504. Another potentially applicable diagnostic code is Diagnostic Code 6513 for evaluating maxillary sinusitis. Under that diagnostic code, a sinus disorder is rated under the "General Rating Formula for Sinusitis." That formula provides for a noncompensable rating where the sinusitis is detected by x-ray only. A 10 percent rating is assigned for 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. A 30 percent rating is assigned 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 50 percent rating is assigned 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. A note following the rating formula defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513. The evidence dated prior to the claim does reflect a history of sinus infections and sinusitis, particularly so in the private treatment records from the 1990s, including when the Veteran had sinus surgery in May 1994. Although the Veteran, and his daughter J.B. and son J.C., indicate that the Veteran has a history of sinus infections and that he would get sawdust in his sinus cavity when he worked previously as a carpenter, the more recent evidence having a greater bearing on the present claim does not show any current sinus infections or sinusitis. The August 2012 VA sinus examiner noted that the Veteran had past sinusitis but not chronically or currently. Additionally, a January 2013 record from Dr. W.M.Z., the Veteran's private treating physician, notes that the Veteran's right maxillary sinus did not currently look infected and that the sinus was healthy. Without sufficient evidence of current episodes of sinusitis, of either the incapacitating or non-incapacitating nature, a compensable rating is not warranted when applying the General Rating Formula for Sinusitis. See 38 C.F.R. § 4.97, Diagnostic Code 6513. Although a compensable rating is not warranted for loss of part of the nose or sinusitis, the Veteran's sinus disorder may also be evaluated as analogous to traumatic deviation of the nasal septum under Diagnostic Code 6502. Under that diagnostic code, a 10 percent rating is warranted where there is a 50 percent obstruction of the nasal passage on both sides or where there is complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. The Veteran's daughter J.B. recalls that the Veteran's right side of the nose clogs up. As noted previously, the August 2012 VA sinus examiner noted that the Veteran has a slightly smaller right nostril opening. Notably, a September 2005 VA examiner characterized the opening as allowing 25 percent less air passage into the right nostril. Although the evidence does not show that the Veteran's sinus disorder results in a 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, there is at least a positive amount of obstruction. Given the impairment from the obstruction in the Veteran's right nasal passage, the Board finds that the symptomatology of his sinus disorder more closely approximates the level of a 10 percent rating rather than the noncompensable level when resolving reasonable doubt in his favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7 (2013). Accordingly, the Board finds that a 10 percent rating is for structural changes to the right maxillary sinus when it is evaluated under Diagnostic Code 6502. This is the maximum schedular rating under this diagnostic code; thus a higher schedular rating is not permissible. Other than those addressed, no other diagnostic code is potentially applicable that can result in a higher rating. Additionally, as the Veteran's disability has not resulted in distinct time periods where the exhibited symptoms would warrant different ratings, a "staged" rating is not warranted. See Hart, 21 Vet. App. at 509-10. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for the disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected sinus disorder was evaluated as a disorder of the respiratory system pursuant to 38 C.F.R. § 4.97. The criteria are found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 10 percent disability rating for. The analogous rating to traumatic deviated nasal septum takes into account the Veteran's symptoms of a clogged right nasal passage with obstruction. Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.97, Diagnostic Code 6502; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). ORDER New and material evidence has been presented to reopen a claim of entitlement to service connection for tinnitus. Service connection for tinnitus is granted. New and material evidence has been presented to reopen a claim of entitlement to service connection for a cervical spine disorder; the appeal of this issue is granted to this limited extent. An evaluation of 10 percent, but no more, for structural changes to the right maxillary sinus is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In regard to the reopened claim of service for a cervical spine disorder, the Veteran has not yet been afforded a VA examination of his spine that includes a medical opinion as to the possible relationship between his claimed disability and his military service. In view of the evidence of record, the Board finds it necessary to remand this claim for an examination and medical opinion that addresses whether the Veteran has a cervical spine disorder that is related to his military service, including any injuries from parachute jumps or his injury from being wounded by enemy high explosive shell fragments. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As noted previously, the Veteran underwent a cervical spine fusion in 2005. It appears that the surgery took place at the VAMC in Cleveland, Ohio. The record reflects that the Veteran may have had additional treatment at VA facilities prior to the earliest entry in the claims file, which is dated in May 2006. Thus, on remand, the Veteran's available VA treatment records dated prior to May 2006 must be obtained including the records pertaining to the 2005 surgery. Moreover, the Veteran may be receiving regular treatment at the Butler VAMC. Treatment records must be also be requested from this facility on remand. As the outcome of the issue of entitlement to TDIU may be impacted by the outcome of the cervical spine disorder issue, the Board will defer adjudication of the TDIU issue. Additionally, the RO will have the opportunity to readjudicate the matter in light of the additional awards granted by the Board herein. The Board notes that the TDIU claim was in part denied because the schedular rating criteria for a TDIU were not met. Generally, a TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). Currently, the Veteran's service-connected disabilities combine to be 70 percent disabling without one individual disability ratable at 40 percent. However, all of his presently service-connected disabilities result from the same etiology or a single accident, or are from multiple injuries incurred in action. When this is the case, they will be considered as one disability for the purpose of one 60 percent disability or for one 40 percent disability in combination. See 38 C.F.R. § 4.16(a)(2), (a)(4). Thus, the schedular requirements must be considered to have been met when the claim is readjudicated on remand. The issue of entitlement to an effective date prior to July 1, 2005, for the award of dependent compensation for the Veteran's spouse, is not ready for appellate disposition, as remand is required for the issuance of a statement of the case. When a notice of disagreement has been filed, the RO must issue a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). In a March 2006 letter notifying the Veteran of the March 2006 rating decision, the RO indicated that the Veteran was being paid as a veteran with one dependent spouse effective July 1, 2005. In a statement received in July 2006, the Veteran requested that the payment of benefits with one dependent be made retroactive as he was married in 1950. This statement may be reasonably construed as a notice of disagreement with the effective date for the award of dependent compensation for the Veteran's spouse. See 38 C.F.R. § 20.201 (2013). The Veteran's representative later confirmed that it was a notice of disagreement in June 2007. In November 2007, the RO sent the Veteran a letter explaining the assignment of the effective date of July 1, 2005, but the claims file does not reflect that the RO has issued a statement of the case with regard to this issue as is warranted. Accordingly, remand is required for this issue. Accordingly, this case is remanded for the following actions: 1. The RO must issue the Veteran a statement of the case and notification of his appellate rights with respect to the issue of entitlement to an effective date prior to July 1, 2005, for the award of dependent compensation for the Veteran's spouse. See 38 C.F.R. §§ 19.29, 19.30 (2013). The RO must inform the Veteran that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed. 38 C.F.R. § 20.202. If the Veteran perfects an appeal, it must be certified to the Board for appellate review. 2. The RO must obtain the Veteran's VA treatment records dated prior to May 2006, to include the records pertaining to the 2005 cervical spine surgery from the Cleveland VAMC. The RO must also obtain more recent treatment records (since November 2012) from the Butler VAMC. 3. Thereafter, the Veteran must be afforded an appropriate VA examination to determine whether any cervical spine disorder found is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that theses records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed cervical spine disorder is related to the Veteran's active duty service. Consideration must be given to the circumstances of the Veteran's combat service, including any injuries from parachute jumps or his injury from being wounded by enemy high explosive shell fragments. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. If the Veteran is unable to report to the examination on account of his medical condition, the claims file must be forwarded to an appropriate clinician to answer the question based on a review of the claims file. 4. Finally, after undertaking any other development deemed appropriate, the RO must re-adjudicate the reopened issue of entitlement to service connection for a cervical spine disorder and entitlement to TDIU. If a benefit sought is not granted, the RO must furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs