Citation Nr: 1339960 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 94-36 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for limitation of motion of the lumbar spine with scoliosis for the period prior to July 8, 2003. 2. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the cervical spine since July 8, 2003. 3. Entitlement to an initial evaluation in excess of 60 percent for residuals of a transsphenoidal hypophysectomy of a pituitary tumor. 4. Entitlement to an initial evaluation in excess of 10 percent for sinusitis. [The claims for service connection for polycythemia and hypertension, claimed as secondary to the service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor, and the claims for increased initial ratings for organic brain syndrome and residuals of hernia repair, are addressed in a separate decision.] REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esquire ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to March 1975, from December 1975 to December 1979, and from October 1983 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. All issues listed in the case caption, above, however, initially stem from the June 1994 rating decision that, inter alia, denied service connection for a lumbar spine disability, awarded service connection for a cervical spine disability at a noncompensable rate, awarded service connection and a 10 percent disability rating for pituitary ademoma (later characterized as residuals of a transphenoidal hypophysectomy of the pituitary gland), and denied service connection for a sinus condition. The Veteran perfected appeals as to each of these claims, which have been continuously developed ever since. The initial Board decisions addressing all four claims, from March 2001 and October 2005, were subsequently vacated pursuant to the United States Court of Appeals for Veterans Claims (Court) granting joint motions for remand (JMR). In March 2008, the Board granted a 20 percent initial rating for limitation of the lumbar spine motion with scoliosis prior to July 8, 2003, and remanded the three remaining issues. To the extent that an even higher rating was not granted for the lumbar spine disorder prior to July 8, 2003, the Court granted a joint motion for partial remand in November 2009. Moreover, in March 2010, the RO effectuated the 20 percent evaluation for the lumbar spine disability from August 27, 1993, and also confirmed a 40 percent evaluation as of July 8, 2003. A Notice of Disagreement as to this matter was received from the Veteran in March 2010, but only to the extent that a higher rating was not granted prior to July 8, 2003. However, as noted above, the evaluation assigned prior to July 8, 2003, is already being addressed on appeal. As the period since July 8, 2003, was neither part of the November 2009 JMR, nor included in the March 2010 NOD, it will not be analyzed further. The remaining issues, while on remand, were the subject of substantial confusion, as the RO appears to have been erroneously notified (not by the Veteran) that the claims were being withdrawn. In a letter dated in April 2010, the Under Secretary of Veterans Affairs for Benefits informed the Veteran's United States Senator that the pending appeal was withdrawn due to "a simple clerical error" and that he regretted the resulting inconvenience to the Veteran. Thus, these issues remain on appeal. In May 2011, the Board found that all four issues required additional development and remanded for that action. The Board is satisfied that the RO and AMC has now substantially complied with all remand directives as they pertain to the two claims herein decided. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required.) Thus, the Board shall proceed with the decision as to these claims, below. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the cervical spine since July 8, 2003; and entitlement to an initial evaluation in excess of 60 percent for residuals of a transsphenoidal hypophysectomy of a pituitary tumor are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. From August 27, 1993, to July 8, 2003, the Veteran had symptoms compatible with lumbosacral strain with loss of lateral motion and muscle spasm of the lumbar region, but there was no evidence of listing of the whole spine, a positive Goldthwaite's sign, marked limitation of forward bending, or any other indications of severe lumbosacral strain; or evidence indicating severe limitation of motion of the lumbar spine; or additional limitation of motion of the lumbar spine due to pain, weakness, lack of endurance, fatigue, or incoordination; or severe intervertebral disc syndrome (IVDS) with recurring attacks with intermittent relief; or incapacitating episodes of IVDS at any time. 2. Since the initial grant of service connection, the Veteran's sinusitis has resulted in moderate disability with drainage and headaches, with four to five non-incapacitating symptom episodes annually, but his sinusitis has not been manifested by any incapacitating episodes at any time, or by severe and frequent headaches, purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for limitation of lumbar motion with scoliosis, prior to July 8, 2003, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293, 5295 (in effect prior to September 26, 2003). 2. The criteria for an initial rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4 .16, 4.97, Diagnostic Codes 6510-6514 (2012); 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514 (in effect prior to October 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, the initial June 1994 rating decision under appeal was issued long before the VCAA was enacted, and the VCAA notice was first given to the veteran in June 2003. The Court acknowledged in Pelegrini that some claims were pending at the time the VCAA was enacted and that proper notice prior to the initial AOJ decision was impossible. The Court specifically stated in Pelegrini that it was not requiring the voiding or nullification of any AOJ action or decision, only finding that appellants are entitled to VCAA-content-complying notice. Thus, the timing of the notice in this matter does not nullify the rating action upon which this appeal is based. In this case, in a June 2003 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate increased rating claims. He was also notified as to what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. While this letter did not advise the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determination, several later communications with the Veteran, to include the most recent supplemental statement of the case (SSOC) in February 2012, notified the Veteran of the evidence necessary to establish these claims, to include an outline of the rating criteria for each of the disabilities for which the Veteran is claiming that an increase is warranted. Moreover, the Board recognizes that the Veteran's appeals are longstanding and have challenged the initial evaluations assigned for these disabilities. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases in which 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. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, the duty to notify with regard to the initial rating claims has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, post-service private and VA treatment records, several VA examination reports, the records of the Social Security Administration, as well as the Veteran's and his representative's lay statements. The Board has noted that in a letter dated in October 2013, the Veteran's representative argued that the examinations which were conducted in 2011 were not adequate. The Board finds that the examinations were adequate to allow proper adjudication of the issues on appeal. The examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. With respect to the contention that the sinus examination was not adequate because it was not conducted by a specialist, the Board finds that it was in fact adequate. It was conducted by a medical doctor, and there is no indication that an examination by an ear nose and throat specialist was required. The Board notes that the Court has held that a nurse, nurse practitioner, or other non-physician VA health care provider may provide competent medical evidence as long as the examination and opinions themselves are not incomplete or otherwise insufficient. See Cox v. Nicholson, 20 Vet. App. 563, 568-569 (2007). Given that the examination findings were adequate, the Board finds that the performance of the examination by a medical doctor rather than by an ENT specialist did not render it inadequate or that the RO/AMC failed to substantially comply with the Board's remand instructions in this regard. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Regarding the claim for an increased rating for the lumbosacral spine, the representative contends that another examination is required because the VA examiner did not specifically address whether there was ankylosis. The Board finds, however, that by not diagnosing ankylosis, the examiner effectively ruled it out. The examiner discussed findings on imaging studies and summarized them, noting that there was evidence of lumbar disc disease, rotoscoliosis and calcification. If ankylosis had been present, the examiner would have discussed that as well. The fact that he did not do so effectively indicates that it was not present. The representative further argues that the examiner did not consider specific records referenced in the Board prior remand when opining with respect to the date of onset of IVDS. The Board notes that the VA spine examiner did not specifically discuss all such records, but the examination report does in fact reflect that the claims file was reviewed and considered. To the extent that the examiner did not specify whether particular findings noted on the current examination were present prior to 2003, the Board notes that there are 13 claims files of evidence upon which to base such a determination. Regarding whether IVDS was present prior to 2003, the Board has found below that it was in fact present, so any alleged deficiency in the examiner's opinion regarding the onset of IVDS is moot. The representative also argues that the examination was insufficient because it was not conducted during the winter when the disability is worse. However, the examiner specifically discussed the fact that flare-ups occur during winter. The Board also notes that the issue currently before the Board is the proper rating of the lumbosacral spine disorder during the period prior to July 2003. In light of this, the Board concludes that the time of year when the examination was conducted in 2011 was inconsequential. The Board also notes that another examination would reflect the severity 10 years after the relevant time period, and would not be useful in resolving the issue on appeal. Therefore, the Board finds that a remand for additional examinations is not warranted. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Legal Criteria and Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by a veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to an appellant applies (unless otherwise provided). Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA has also issued a General Counsel opinion, which held that VA must first determine whether the revised version is more favorable to the Veteran, which may require the Board to apply both the old and new versions of the regulation. VAOPGCPREC 3-2000 (2000). If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. Id. Thus, while the Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, an effective date based on the revised criteria may be no earlier than the date of the change. Id.; DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A. Lumbar Spine The Veteran has been assigned a 40 percent rating for his limitation of lumbar motion with scoliosis effective from July 8, 2003, and the 40 percent rating from that date is not currently on appeal. The Veteran's limitation of lumbar spine motion with scoliosis was initially assigned a 10 percent rating under 38 C.F.R. § 4.71a , Diagnostic Code 5295, effective from August 27, 1993. The Board, in March 2008, granted a 20 percent disability rating under DC 5292 and 5295. As noted in the Introduction above, the Court vacated the Board's decision as to the rating period prior to July 8, 2003. Thus, the analysis below will discuss the appropriate rating for that time period. As shown below, the Board finds that the Veteran met the criteria for a 20 percent rating for his limitation of motion of the lumbar spine with scoliosis, prior to July 8, 2003, but that a rating in excess of 20 percent for this time period for the limitation of motion or for the associated intervertebral disc syndrome (IVDS) is not warranted. Current spine regulations provide criteria under the General Rating Formula for Diseases and Injuries of the Spine. Because the only period under appeal is that prior to July 2003, the General Rating Formula is inapplicable. The Board will examine each rating criteria related to the lumbar spine that was in effect prior to July 8, 2003. Diagnostic Code 5285 (in effect prior to September 26, 2003) provided ratings for residuals of fracture of vertebra. There is no evidence of fractured vertebra in this case. Diagnostic Code 5289 (in effect prior to September 26, 2003) provided ratings for ankylosis of the lumbar spine. Favorable ankylosis of the lumbar spine was to be rated 40 percent disabling. Unfavorable ankylosis of the lumbar spine was to be rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5292 (in effect prior to September 26, 2003) provided ratings based on limitation of motion of the lumbar spine. Slight limitation of motion of the lumbar spine was to be rated 10 percent disabling; moderate limitation of motion of the lumbar spine was to be rated 20 percent disabling; and severe limitation of motion of the lumbar spine was to be rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5293 (in effect prior to September 23, 2002) provided ratings based on intervertebral disc syndrome. Postoperative intervertebral disc syndrome that was cured was to be rated noncompensably (0 percent) disabling. Mild intervertebral disc syndrome was to be rated 10 percent disabling. Moderate intervertebral disc syndrome with recurring attacks was to be rated 20 percent disabling. Severe intervertebral disc syndrome with recurring attacks with intermittent relief was to be rated 40 percent disabling. Pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief, was to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided that intervertebral disc syndrome (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided a 10 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. Notes following Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided guidance in rating intervertebral disc syndrome. Note (1) provided that, for purposes of ratings under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2) provide that, when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3) provide that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, rate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher rating for that segment. 38 C.F.R. § 4.71a. Diagnostic Code 5295 (in effect prior to September 26, 2003) provided ratings for lumbosacral strain. Lumbosacral strain with slight subjective symptoms only was rated noncompensably (0 percent) disabling. Lumbosacral strain with characteristic pain on motion was rated as 10 percent disabling. Lumbosacral strain with muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in the standing position, was rated 20 percent disabling. Severe lumbosacral strain with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, was rated 40 percent disabling. 38 C.F.R. § 4.71a. Traumatic arthritis that had been substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code or the specific joint or joints involved. 38 C.F.R. § 4.71a, 5003. VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 93 (30th ed. 2003). The Veteran's service treatment records include physical therapy notes in January 1989 showing that the Veteran reported lumbar spasm. A May 1991 X-ray report of the lumbosacral spine notes that the Veteran had scoliotic curvature. The radiologist further stated that this suggested left paraspinal muscle spasm. The Board finds that this suggests that the Veteran's scoliosis of the lumbar spine resulted in continuing muscle spasms. A January 1994 VA examination report showed some loss of lumbar spine motion, along with x-ray results showing early disc thinning at L5. In August 1994, the Veteran's physician, Dr. Hamer, noted that the Veteran's condition was due to the degenerative nature of the discs in his spine and that he had radicular pain at that time. Loss of lateral lumbar spine motion and degenerative disc disease of the lumbar spine was again noted in the October 1999 VA examination report. In a March 2001 letter, a private chiropractor stated that he had treated the Veteran for lumbosacral syndrome, lumbar neuritis/neuralgia, and muscle spasms since July 1999. An undated letter from this chiropractor was submitted to the Board by the Veteran in November 2007. The chiropractor confirmed that the muscle spasms discussed in his March 2001 letter specifically referred to lumbar muscle spasms. A June 2002 private record from the Bossier Health Center notes that the Veteran complained of muscle spasms and indicated that he had pain on range of motion of his back. Moreover, upon examination in September 2011, the VA examiner confirmed that the Veteran does have IVDS, but noted that the approximate date of onset is difficult to ascertain. Nonetheless, the examiner stated that "there is plenty of evidence to show that there were problems prior to his retirement." The Veteran had muscle spasm on extreme forward bending and loss of unilateral lateral spine ever since discharge from service and thus met the criteria for a 20 percent rating under Diagnostic Code 5295, the code for lumbosacral strain, prior to July 8, 2003. The Board notes that the Veteran did not meet the criteria for a rating in excess of 20 percent under Diagnostic Code 5295 at any time prior to July 8, 2003. None of the medical evidence prior to that date revealed listing of the whole spine, a positive Goldthwaite's sign, marked limitation of forward bending, or any other indications of severe lumbosacral strain. The Veteran was also not entitled to a rating in excess of 20 percent for his low back disability based on limitation of motion prior to July 8, 2003. A higher rating would have required evidence of severe limitation of motion of the lumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5292. The January 1994 VA examination (showing 75 degrees of forward flexion) and October 1999 VA examination (showing 90 degrees of forward flexion) VA only showed the Veteran to have slight limitation of motion of the lumbar spine. The medical evidence prior to July 8, 2003 does not indicate that the Veteran experienced such additional limitation of motion of the lumbar spine due to pain, weakness, lack of endurance, fatigue, or incoordination that resulted in the Veteran experiencing more than moderate limitation of motion of the lumbar spine. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, the Veteran is not entitled to a rating in excess of 20 percent prior to July 8, 2003, on the basis of IVDS. While the Board recognizes that there is "plenty of evidence" of IVDS during this time frame, there is no basis upon which to grant a rating in excess of 20 percent. Again, severe IVDS with recurring attacks with intermittent relief was to be rated 40 percent disabling under Diagnostic Code 5293 in effect prior to prior to September 23, 2002. Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The Veteran's records prior to July 8, 2003, consistently show description of muscle spasms and degenerative disc disease, but do not show the existence of incapacitating episodes at any time, and do not show that the muscle spasms recurred with such frequency that relief can be described only as intermittent. Thus, while Diagnostic Code 5293 does apply in this case, the evidence does not warrant a rating in excess of 20 percent at any time in question. Given the evidence as outlined above, the Board finds that from the grant of service connection until January 8, 2003 the Veteran did not meet the criteria for an increased initial rating higher than 20 percent for limitation of motion of the lumbar spine with scoliosis and IVDS. B. Sinusitis The Board notes that during the pendency of this appeal, effective October 7, 1996, VA revised the criteria for rating the respiratory system, including diseases of the nose and throat. See 61 Fed. Reg. 46,727 (1996). The changes in criteria were considered by the RO in its April 1997 Supplemental Statement of the Case. As such, application of the amended criteria by the Board will not result in any prejudice the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Under the earlier criteria, a noncompensable rating was warranted for X-ray manifestations only, symptoms mild or occasional. A 10 percent rating was warranted for moderate sinusitis, with discharge or crusting or scabbing, infrequent headaches. A 30 percent rating was warranted for severe sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A 50 percent rating was warranted for postoperative, following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514 (effective prior to October 7, 1996). Under the new criteria, effective October 7, 1996, a 10 percent rating is in order for sinusitis with one or two incapacitating episodes per year 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 warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted for chronic osteomyelitis following radical surgery; or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514 (2012). A 10 percent rating is in effect for the Veteran's sinusitis throughout the course of this claim. The Board notes that the assignment of a 10 percent rating arose from the October 2005 Board decision, which was vacated by the Court to the extent that a rating in excess of 10 percent was not granted. Thus, the 10 percent rating is in effect and the only question at this time is whether a rating in excess of 10 percent is warranted. The record reflects that in November 1994, the otolaryngologist who performed preparatory surgery just prior to the surgical removal of the Veteran's pituitary adenoma reported that the Veteran had been experiencing chronic sinusitis for at least the last eight to ten years, that his principal problems were drainage, nasal blockage, and moderate to severe headaches. The headaches prior to surgery were described as lasting from several hours to several days and as being severe enough to interfere with normal daily work activities; they were described as occurring less frequently after the surgery, but with more intensity. This specialist also opined that the Veteran's periodic use of antibiotics, described as two to three times per year for two to four weeks at a time, would be indefinite. Upon VA examination in December 1995, however, the Veteran's sinuses were found to be normal. At an August 1998 VA examination, the Veteran reported having allergy problems associated with grasses in the spring that were usually controlled with over-the-counter medication, with his last sinus infection occurring two years prior. At a July 2003 VA examination, the Veteran complained of four to five episodes annually of sneezing, teary eyes and headaches without purulent discharge. The Veteran was found to have mild deviation of the septum with mild bilateral turbinate hypertrophy but no obstruction. Notably, there was no erythema or discharge. The Veteran related that his last severe sinus infection had been about two years prior to the examination and the examiner diagnosed chronic sinusitis with mild nasal septum deviation. The Board notes that the deviated septum was later repaired. Treatment records include complaints of periodic nasal drainage and treatment with use of nasal sprays and antibiotics for short periods of time. The Veteran has also been treated for migraine headaches associated with his history of a pituitary tumor, as opposed to his sinusitis. Treatment records do not include complaints of crusting or purulent discharge. In January 2006, the Veteran sought treatment from his private physician for symptoms of sinusitis. He was coughing and had sinus drainage. Sinus x-ray at that time showed normal waters view. The physician diagnosed an upper respiratory infection, and prescripted medication as treatment. In March 2009, the Veteran had a physical at a VA facility in order to establish care. At that time, his eyes were reported as clear, he had clear nasal passages, turbinates boggy, and no sinus pain. There were essentially no sinusitis symptoms at that time. The Veteran underwent additional VA examination of his sinus condition in May 2010. The Veteran reported that he has watery eyes, itchy nose, and postnasal drip on most days. He also reported approximately six sinus headaches in the prior year, but that he had not been treated for a sinus infection during the course of the year. It is noted that the Veteran does not have a history of incapacitating episodes, but that he does have approximately four episodes per year, lasting from seven to fourteen days, of headache, purulent drainage and sinus pain. Physical examination yielded no evidence of sinus disease, no nasal obstruction or polyps, and no other symptoms. The examiner noted that he only has problems with outdoor activities, particularly when there has been grass mowing. Most recently, in September 2011, the Veteran was examined and x-rays of the sinuses were obtained. X-ray revealed mucosal thickening and/or traces of fluid, left sphenoid and mid ethmoid sinuses. The remaining sinuses were noted as clear. At the time of this examination, the Veteran reported drainage and a cough and that he was having no problems breathing through the nose. The examiner noted that he does bring up "some yellowish type material" but that he has not speech impairment secondary to the sinus problems, and that he has no purulent discharge. The Veteran reported headache two to three times per month, and that he had experienced no incapacitating episodes. Physical examination revealed no abnormalities, including no pain or tenderness over the maxillary sinuses, nor frontal sinuses, normal in the paranasal area. The Board recognizes the Veteran's representative's recent statement suggesting that the medical doctor that conducted this examination is not qualified, because he is not an ear, nose and throat specialist. The Board, however finds no deficiency in this report and finds no reason to deem a medical doctor incompetent to assess the symptoms reported here. Thus, the Board finds no reason to remand this claim for a new examination. Throughout the course of this appeal, the evidence fails to show that the Veteran has ever experienced an incapacitating episode related to his sinusitis. Moreover, the most frequency with which the Veteran reported non-incapacitating episodes was at the time of the May 2010 VA examination, during which a frequency of 4 such episodes per year was reported. This does not meet the criteria for a 30 percent rating. Essentially there is simply no evidence to establish that the Veteran has had any incapacitating episodes of sinusitis, and there is no evidence to suggest severe and frequent headaches, purulent discharge or crusting in order to warrant a 30 percent rating under the old rating criteria. Further, the evidence does not suggest that non-incapacitating episodes with headaches, pain, and purulent discharge or crusting have occurred with such a frequency that a 30 percent rating is warranted under the new rating criteria. Essentially, the evidence establishes that the Veteran's symptoms most closely approximate the severity of sinusitis needed for the currently assigned 10 percent rating, but no more. A rating in excess of 10 percent, therefore, must be denied. C. Extraschedular The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point since the Veteran's initial claim have the disabilities been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms' (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that schedular criteria are adequate to rate the disabilities under consideration. Although the Veteran's complaints of disabilities suggest interference with occupational functioning, it does not appear that his disabilities "markedly" interfere with employment. Accordingly, and because there is also no evidence that he has been hospitalized for his disabilities at any time during the appeal periods, the threshold requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial rating in excess of 20 percent for limitation of the lumbar spine motion with scoliosis prior to July 8, 2003, is denied. An initial rating in excess of 10 percent for sinusitis is denied. REMAND While the Board sincerely regrets the delay, an additional remand is required with regard to the Veteran's appeal of his cervical spine rating and his residuals of the pituitary tumor rating for the reasons discussed, below. Degenerative Disc Disease of the Cervical Spine The Board, in May 2011, remanded the issue of entitlement to a rating in excess of 20 percent for degenerative disc disease of the cervical spine. The remand was in order to afford the Veteran a VA examination to assess the current severity of the cervical spine disability, to include an assessment as to ankylosis, additional disability during flare ups, and an analysis of the degree of any associated objective neurological abnormalities (i.e. radiculopathy). The VA examination was conducted in September 2011. At this time the Veteran reported ongoing intermittent pain, this time at a level of 4 on a scale of 1 to 10. He reported flare-ups primarily in the wintertime, during which the pain reaches the level of 5 and "the neck pops and will not turn." This examiner noted that the Veteran's cervical spine forward flexion is zero to 45 degrees with no objective evidence of painful motion. The Veteran also reported no radicular pain or other signs or symptoms of radiculopathy at the time of this examination. The examiner again confirmed IVDS in the cervical spine, but noted that the Veteran's IVDS is not manifested by incapacitating episodes. No new x-rays were taken and the examiner referenced the May 2010 x-ray report. The Board notes that this report does not mention ankylosis of any sort, but does suggest that the Veteran's intermittent flare-ups may include symptoms that can be likened to ankylosis. However, the VA examiner failed to adequately discuss additional disability during flare ups. Rather, the examiner merely documented the Veteran's report of symptoms without an analysis as to the severity of disability during flare-up. Moreover, the examiner suggested that there is no radiculopathy whatsoever, which is inconsistent with the Veteran's prior history as related to his cervical spine. While the Board sincerely regrets any additional delay, the Board finds that the May 2011 remand directives have not yet been substantially complied with. A remand is required. Residuals of a Transsphenoidal Hypophysectomy of a Pituitary Tumor The Veteran contends that a 100 percent rating is warranted for his service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor. The current 60 percent rating is assigned under 38 C.F.R. § 4.119, Diagnostic Code 7903. This rating is assigned by analogy to hypothyroidism. The Board notes that a 100 percent rating requires a showing of cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. The most recent VA examination related to this claim was conducted in May 2010. He reported symptoms at that time of fatigability, excess sweating and heat intolerance. He denied muscular weakness, cold intolerance, cardiovascular involvement, bradycardia or sleepiness. In April 2012, however, the Veteran, by way of his representative, suggested that he experiences heat intolerance and cold intolerance, as well as being flushed and excess sweating. The representative points to these symptoms in addition to the Veteran's dementia as the rationale for arguing that a 100 percent rating is warranted. The Board notes, however, that a separate rating is presently assigned for a mental disorder, which has been characterized as an organic mental disorder associated with the pituitary tumor. It is unclear from the record whether the Veteran has residuals of the pituitary tumor that warrant a higher rating, in addition to the already separately compensated symptoms of a mental disorder. The Board finds that a new examination is needed to assess the residuals of the pituitary tumor. For this reason, a remand of this claim is necessary. Because neither of these claims have been developed to the extent that they substantially comply with the Board's prior remands, additional remand is necessary. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a new VA cervical spine examination, with an appropriate examiner, to ascertain the history, nature, symptoms, and severity of his service-connected cervical spine disability, to include an assessment of the orthopedic and neurologic manifestations of the cervical spine disability. The examiner must review the entire claims file in conjunction with the examination. The examination must include: 1) range of motion studies; 2) a discussion of the presence and extent of any ankylosis, painful motion, functional loss due to pain, excess fatigability, weakness, and an assessment of the frequency and duration of additional disability during flare-ups (to include an assessment of whether the symptoms described by the Veteran to occur during flare-up may be likened to ankylosis); 3) a summary of the frequency and duration of any doctor-prescribed bed rest; and (4) an analysis of the degree of any associated objective neurological abnormalities (i.e., radiculopathy), to include whether there is evidence of incomplete paralysis of the nerves associated with the Veteran's radicular complaints in the shoulders. If possible, this examination should be scheduled for a winter month, during which the Veteran reports his flare-ups to occur. All opinions and conclusions expressed by the examiner must be supported by a complete rationale in a typewritten report. 2. The Veteran should be afforded a VA examination from an appropriate examiner to determine the residuals of his pituitary tumor, to include an assessment as to whether any of the following are present, or have been present at any time since the initial grant of service connection for this disability. The examiner must review the entire claims file in conjunction with the examination. The examiner should determine whether the Veteran's residuals of pituitary tumor are manifested by cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. The examiner should specify the extent to which any mental disturbance present at any time during this claim and appeal can be identified as the dementia, slowing of thought, and depression directly associated with the pituitary tumor, or whether it is a separate mental disorder. All opinions and conclusions expressed by the examiner must be supported by a complete rationale in a typewritten report. 3. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs