Citation Nr: 21073070 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 00-20 133 DATE: December 7, 2021 ORDER Entitlement to an earlier effective date of October 1, 1996 for the grant of service connection for degenerative arthritis and degenerative disc disease, cervical spine, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an effective date prior to August 12, 1999 for the grant of service connection for chronic sinusitis and allergic rhinitis is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis and degenerative disc disease, cervical spine, is remanded. Entitlement to an initial disability rating in excess of 10 percent for chronic sinusitis and allergic rhinitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 10, 2011 is remanded. FINDINGS OF FACT 1. The initial service connection claim for degenerative arthritis and degenerative disc disease, cervical spine, was received on October 1, 1996, and the evidence indicates that entitlement also arose at least as early as this date; there was no earlier informal or formal service connection claim for degenerative arthritis and degenerative disc disease, cervical spine. 2. The earliest date of receipt for a claim of entitlement to service connection for chronic sinusitis and allergic rhinitis is August 12, 1999. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of October 1, 1996 for the grant of service connection for degenerative arthritis and degenerative disc disease, cervical spine, have been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155 (in effect prior to March 24, 2015), 3.400. 2. The criteria for entitlement to an effective date earlier than August 12, 1999 for the grant of service connection for chronic sinusitis and allergic rhinitis have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from October 1974 to December 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision. After an August 2017 Board decision granted entitlement to service connection for a chronic neck condition, diagnosed as degenerative arthritis, and entitlement to service connection for a chronic sinus condition, diagnosed as chronic sinusitis and allergic rhinitis, the agency of original jurisdiction (AOJ) implemented the awards in an August 2017 rating decision that assigned an initial 10 percent rating for both disabilities effective from August 12, 1999. The Veteran filed a timely notice of disagreement (NOD) with these initial ratings in August 2018. The evidence from the appeal period for these initial increased rating claims includes a January 2001 VA examination in which the Veteran reported that she had not worked since May 1999 as a result of her joints. The record reflects that an October 2011 rating decision later granted entitlement to a TDIU effective from March 10, 2011. However, as the Veteran's claim for a TDIU was raised during the appeal period of her initial increased rating claims for her cervical spine disability and chronic sinusitis and allergic rhinitis, the Board must consider whether entitlement to a TDIU should be awarded for the portion of the appeal period prior to March 10, 2011 as part and parcel of the Veteran's claim for entitlement to higher ratings for these disabilities. Harper v. Wilkie, 30 Vet. App. 356 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). Consequently, the Board has assumed jurisdiction over this issue. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 3. Entitlement to an effective date prior to August 12, 1999 for the grant of service connection for degenerative arthritis and degenerative disc disease, cervical spine. 4. Entitlement to an effective date prior to August 12, 1999 for the grant of service connection for chronic sinusitis and allergic rhinitis. Effective February 19, 2019, the Department of Veterans Affairs (VA) amended its procedural regulations for implementation of the Veterans Appeals Improvement and Modernization Act of 2017 (see 84 Fed. Reg. 138, Jan. 18, 2019); the regulations provided in this decision are from the former version that was in effect at the times relevant to this case. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim providing that "[a]ny communication or action, indicating an intention to apply for one or more benefits . . . [s]uch informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a). The VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection "will be the date of the informal claim." Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103(a); 38 C.F.R. § 3.155). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). In regards to the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier that the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where a claim is granted based on new and material evidence received within an appeal period or prior to an appellate decision, the effective date shall be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). The record shows that in a statement received on February 14, 1991, the Veteran requested a reevaluation of her service-connected back and hemorrhoid disabilities. The Veteran also stated that she wished "to add rheumatoid arthritis (back, neck, knees) as a secondary service-connected disability." Following this claim, the AOJ issued a March 1991 rating decision and identified the issues as including a secondary service connection claim for rheumatoid arthritis of the back, neck, and knees. The AOJ denied the issue after determining that rheumatoid arthritis was not related to the Veteran's back disability originating in service. The Veteran's non-service connected disabilities following the decision were noted to include seronegative rheumatoid arthritis. The Veteran was notified of this decision and her appellate rights in an April 1991 letter. However, the Veteran did not submit a NOD within one year of this notification letter. In a statement that was later received on October 1, 1996, the Veteran noted that her service-connected disability had increased in severity and should be rated much higher. The Veteran reported that doctors also said that her knees, back, and neck arthritis were related to her service-connected disability. The Veteran stated that she also wished to claim "cervica spongelis," indicating that this disorder and her knee condition were injury-related and degenerative due to her condition in the spine. In a July 1997 rating decision, the AOJ characterized the issue as whether new and material evidence had been received to reopen the claim for service connection for seronegative rheumatoid arthritis (claimed as arthritis of the knees, back, and neck), and the decision found that new and material evidence had not been received to reopen this claim. The rating decision's reasons and bases noted that the Veteran claimed service connection for arthritis of the knee, back, and neck as well as "cervica spongelis." However, the AOJ stated that the record showed that service connection was previously denied as rheumatoid arthritis was not related to the Veteran's service-connected disabilities. The AOJ determined that as the evidence did not show a relationship between the claimed conditions and the Veteran's service-connected disabilities, service connection remained denied. The AOJ stated that the evidence submitted in connection with the current claim did not constitute new and material evidence before noting that the March 1991 rating decision was confirmed and continued. A July 1997 letter notified the Veteran of this decision and her appellate rights, stating that new and material evidence adequate to reopen the claim for service connection for rheumatoid arthritis had not been submitted. The Veteran did not submit a NOD within one year of this notification letter. In a subsequent statement received on August 12, 1999, the Veteran stated that she wanted to "reopen her service-connected claim for her service-connected lumbosacral strain and for a compensable evaluation for [her] condition of the spine from [her] neck all the way down [her] back." The Veteran added that she was requesting a compensable evaluation for her neck condition as well as her sinus condition. In response to the August 12, 1999 claim, the AOJ issued a January 2000 rating decision that denied entitlement to service connection for a chronic neck condition and entitlement to service connection for a chronic sinus condition on the basis that the claims were not well grounded. In adjudicating the service connection claim for a chronic neck condition, the rating decision's reasons and bases did not reference the Veteran's previously denied service connection claim for seronegative rheumatoid arthritis. The January 2000 rating codesheet's list of nonservice-connected disabilities also documented seronegative rheumatoid arthritis separately from the claim for a chronic neck condition that was addressed in the decision. The Veteran was notified of this decision and her appellate rights in a January 2000 letter. In a May 23, 2000 statement that was received on May 25, 2000, it was noted that the Veteran was requesting reconsideration of her service connection claims for a chronic neck condition and chronic sinus condition. The statement was signed by the Veteran as well as J.V., LMSW/ACP, the coordinator of the PTSD Clinical Team at VA. A June 1, 2000 stamp on the statement reflects that the AOJ construed this request as a NOD. The AOJ issued a May 31, 2000 Statement of the Case (SOC), notification of which was sent to the Veteran in a June 2, 2000 letter, that addressed the Veteran's service connection claims for a chronic neck condition and a chronic sinus condition. The adjudicative actions section of the SOC noted that the relevant NOD was received on May 25, 2000. The Veteran then submitted a VA Form 9 in September 2000. The record reflects that the AOJ subsequently issued an April 2003 rating decision that again denied entitlement to service connection for a chronic neck condition and entitlement to service connection for a chronic sinus condition. The rating decision and notification letter reflects that the decision was issued in response to the Veteran's submission of a Social Security Administration (SSA) decision on January 31, 2002. Nevertheless, the record reflects that the AOJ determined that the Veteran had already perfected her appeal of these issues to the Board at the time of the April 2003 rating decision. The AOJ certified the Veteran's prior appeal stemming from the January 2000 rating decision to the Board with a December 2007 VA Form 8. Although the September 2000 VA Form 9 was received more than 60 days after the June 2000 SOC, the Board accepted jurisdiction of the appeal in a March 2008 decision and noted that the Veteran was appealing the January 2000 rating decision that denied entitlement to service connection for a chronic neck condition and a chronic sinus condition. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009). In this decision, the Board characterized the issues on appeal as including the question of whether new and material evidence had been received to reopen entitlement to service connection for a chronic neck condition. The Board found that this claim was previously denied in the July 1997 rating decision, and the July 1997 rating decision was final. The Board then reopened this issue before remanding the claim as well as the service connection claim for a chronic sinus condition to the AOJ for additional development and adjudication. In a subsequent December 2008 decision, the Board denied entitlement to service connection for a chronic neck condition, to include as secondary to the Veteran's service-connected back condition, and entitlement to service connection for a chronic sinus condition. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2009 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Board then remanded both service connection claims once more in a March 2010 decision. In a December 2011 decision, the Board again denied entitlement to service connection for a chronic neck condition, to include as secondary to the service-connected lumbosacral strain, and entitlement to service connection for a chronic sinus condition. However, in August 2012, the Board granted the representative's May 2012 Motion to Vacate this decision. In decisions dated in December 2012, October 2014, and February 2016, the Board remanded the two service connection claims to the AOJ. The Board later issued an August 2017 decision that granted entitlement to service connection for a chronic neck condition, diagnosed as degenerative arthritis, and entitlement to service connection for a chronic sinus condition, diagnosed as chronic sinusitis and allergic rhinitis. The Board found that both disabilities were directly related to the Veteran's service. The Board's decision was implemented by the AOJ in an August 2017 rating decision that granted service connection for chronic sinusitis and allergic rhinitis effective from August 12, 1999 as well as service connection for degenerative arthritis and degenerative disc disease, cervical spine (claimed as chronic neck condition) effective from August 12, 1999. The Veteran then filed a timely NOD with these effective dates in August 2018. Regarding the effective date of August 12, 1999 that was awarded for the grant of service connection for degenerative arthritis and degenerative disc disease, cervical spine, the Veteran's representative has contended that the Veteran filed an earlier claim for this disability in the statement received on October 1, 1996. See August 2020 Statement from Representative. The representative noted that in this statement, the Veteran requested a higher disability rating for her service-connected disability and issues related to rheumatoid arthritis. However, the Veteran also indicated that she wished to file a separate claim for cervical spondylosis. The representative asserted that although the subsequent July 1997 rating decision declined to reopen the previously denied claim for entitlement to service connection for rheumatoid arthritis, the rating decision did not adjudicate the claim for entitlement to service connection for the "cervical spondyle." As such, this claim remained pending and unadjudicated until the January 2000 rating decision that resulted in the grant of service connection for the disability. The representative also highlighted the fact that the Veteran was now service-connected for degenerative arthritis of the cervical spine rather than rheumatoid arthritis. The representative submitted medical articles to support the contention that cervical spondylosis was a type of degenerative arthritis, noting that it was sometimes called osteoarthritis of the neck. In contrast, rheumatoid arthritis was a chronic inflammatory disorder. It followed that the service connection claim for cervical spondylosis was separate from the previously denied service connection claim for rheumatoid arthritis that was considered in the July 1997 rating decision, and this claim had been pending since October 1996. Consequently, the representative requested for an earlier effective date to be awarded from the date of the October 1, 1996 claim. As discussed above, in a March 2008 decision, the Board found that the Veteran's service connection claim for a chronic neck condition was previously denied in a final, July 1997 rating decision before determining that new and material evidence had been received to reopen this claim. However, the Board's threshold finality determination made in the context of analyzing whether a claim should be reopened has no preclusive effect and is not a final determination. See Dallman v. Wilkie, 33 Vet. App. 101 (2020). The downstream element of the effective date assigned for the grant of service connection has not been the subject of a final decision. After reviewing the foregoing evidence, the Board agrees with the representative's contentions that the October 1, 1996 statement in which the Veteran stated that she also wished to claim "cervica spongelis" reflected her intention to file a separate service connection claim for a cervical spine disorder other than the previously denied service connection for rheumatoid arthritis. In this regard, claims that are based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (noting that a newly diagnosed psychiatric disorder (e.g., PTSD, even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered). The Veteran's representative has submitted medical articles that provide probative evidence in support of his contention that the Veteran's apparent reference to cervical spondylosis in the October 1, 1996 statement represented a disorder that is distinct from the rheumatoid arthritis that was previously denied in the unappealed, March 1991 rating decision. As the Veteran's October 1, 1996 claim for "cervica spongelis" involves a distinctly diagnosed cervical spine disorder that was not previously addressed in the March 1991 rating decision, the Board finds that it was a distinct claim for new and material evidence purposes at the time of the July 1997 rating decision. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Notably, the July 1997 rating decision characterized the issue as whether new and material evidence had been received to reopen the claim for service connection for seronegative arthritis (claimed as arthritis of the knee, back, and neck) without including the separately claimed "cervica spongelis" in the issue. Although the reasons and bases acknowledged that the Veteran had also claimed "cervica spongelis," the decision appeared to be limited to considering whether there was new and material evidence to reopen the previously denied service connection claim for rheumatoid arthritis. The decision did not specifically address the merits of the Veteran's theory that her separately claimed cervica spongelis was "injury related," indicating that it was directly related to service. The July 1997 notification letter also informed the Veteran that new and material evidence adequate to reopen the claim for rheumatoid arthritis had not been submitted without discussing the "cervica spongelis" claimed by the Veteran. In light of this evidence, it does not appear reasonable to interpret the July 1997 rating decision's determination that new and material evidence had not been received to reopen the service connection claim for rheumatoid arthritis as an implicit denial of the newly claimed "cervica spongelis." See Cogburn v. McDonald, 809 F.3d 1232, 1235 (Fed. Cir. 2016); Adams v. Shinseki, 568 F.3d 956, 962-63 (Fed. Cir. 2009). Consequently, the October 1, 1996 claim for a cervical spine disorder other than rheumatoid arthritis remained pending until the January 2000 rating decision that ultimately resulted in the grant of service connection for degenerative arthritis and degenerative disc disease, cervical spine; a cervical spine disability that is also distinct from the previously considered rheumatoid arthritis. See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009) (a claim remains pending "until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability" (quoting Williams v. Peake, 521 F.3d 1348, 1350 (Fed. Cir. 2008)). Neither the Veteran nor the record has suggested that the Veteran filed any earlier informal or formal claim for this disability. As such, the earliest date of claim for the Veteran's service connection claim for a cervical spine disorder other than rheumatoid arthritis is October 1, 1996. Consequently, the remaining question is whether entitlement arose by that date. In determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant's disability manifested itself under all the "'facts found'" and "the date on which the evidence is submitted is irrelevant." McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In other words, to the extent that the claim for service connection that was granted was for degenerative arthritis and degenerative disc disease of the cervical spine, there need not have been a contemporaneous diagnosis of this disability. The Veteran indicated that she was having cervical spine complaints with the submission of the October 1, 1996 statement. A relatively short time later, an April 1997 treatment record confirmed that the Veteran had experienced chronic neck pain since the 1980's. The provisional diagnosis on this consultation sheet was neck pain. A subsequent treatment record that appeared to be associated with an August 1997 entry noted an impression of degenerative joint disease with chronic neck pain, mechanical with myofascial pain. A March 1998 treatment record similarly stated that the Veteran had a history of chronic neck pain. Based on the above and resolving reasonable doubt in favor of the Veteran, the Board finds that the records showing a history of cervical spine pain symptoms since the 1980's are sufficient to establish that entitlement to service connection for degenerative arthritis and degenerative disc disease of the cervical spine arose when the Veteran initially filed her service connection claim on October 1, 1996. For the foregoing reasons, an October 1, 1996 effective date, but no earlier, for service connection for degenerative arthritis and degenerative disc disease of the cervical spine is warranted. As there is no evidence or argument that an earlier effective date is warranted, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board will next consider whether the Veteran is entitled to an effective date prior to August 12, 1999 for the grant of service connection for chronic sinusitis and allergic rhinitis. The Board notes that although the Veteran's representative marked the box in the March 2020 VA Form 9 to indicate that the Veteran was appealing all the issues from the February 2020 SOC, including the issue of entitlement to an effective date prior to August 12, 1999 for the grant of service connection for chronic sinusitis and allergic rhinitis, neither the Veteran nor her representative has provided any theories to explain why they believe that an earlier effective date is warranted with respect to this claim. The record shows that the AOJ awarded service connection for chronic sinusitis and allergic effective from August 12, 1999 based on the Veteran's submission of a statement on that date in which she indicated that she was seeking a compensable evaluation for a sinus condition. The record does not show any prior formal or informal claims for this condition; thus, this is the date of claim for the above disability. In sum, there is no additional document that might be construed as a claim of entitlement to service connection for chronic sinusitis and allergic rhinitis prior to August 12, 1999. Thus, the date of claim is August 12, 1999. Further, as to when entitlement arose, even if it arose prior to August 12, 1999, the effective date would have to be the later of the two dates, which would be the current date of claim. Based on the evidence discussed above, an earlier effective date for the grant of service connection for chronic sinusitis and allergic rhinitis is not warranted, and the appeal is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable under these circumstances. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 5. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis and degenerative disc disease, cervical spine, is remanded. The Veteran's cervical spine disability was most recently evaluated during a September 2018 VA examination. The examiner noted that the Veteran was not being examined immediately after repetitive use over time, and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. However, the examiner did not provide an opinion on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The examiner stated that she was unable to provide such an opinion without mere speculation as there was no conceptual or empirical basis for making such a determination without observing function under those conditions. However, a VA examiner's determination that an opinion regarding additional functional loss under specific circumstances, such as during flare ups, could not be provided "without directly observing function under these circumstances," "is at odds with VA's guidance on the matter." Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Instead, "it must be apparent that the inability to provide an opinion without resorting to speculation 'reflect[s] the limitation of knowledge in the medical community at large' and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner." Sharp, 29 Vet. App. at 33 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). As the VA examination is therefore inadequate, an additional VA examination should be obtained on remand. 6. Entitlement to an initial disability rating in excess of 10 percent for chronic sinusitis and allergic rhinitis is remanded. The Veteran was last provided with a VA examination to evaluate her chronic sinusitis and allergic rhinitis in September 2018. In the examination report, the examiner noted that the Veteran had not undergone sinus surgery. Under the remarks section of the report, the examiner indicated that the Veteran thought she had a sinus surgery two times that year, but there was no evidence in the claims file. Following this examination, a September 2019 VA treatment record indicated that the Veteran's history of surgeries included a sinus surgery/thyroidectomy. An October 2019 VA treatment also record noted that the Veteran had a raspy low voice due to surgery (sinus); and a November 2019 VA treatment record reported that the Veteran had undergone sinus surgery, and she was having difficulty talking. The disability is currently evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6513. Under this diagnostic code, a higher 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. As these records indicate that there may have been a material change in the severity of the Veteran's disability since the last VA examination, the Board finds that a remand for a new VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 7. Entitlement to a total disability rating based on TDIU prior to March 10, 2011 is remanded. As any decision with respect to the increased rating claims remanded herein might impact the Veteran's claim for entitlement to a TDIU prior to March 10, 2011, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran's increased rating claims are completed and the matters are either resolved or prepared for appellate review. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment related to her cervical spine disability and chronic sinusitis and allergic rhinitis, to include any records of surgeries related to these disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records dated since February 2020. 2. After completing the preceding development in paragraph 1, the Veteran should be afforded a VA examination to address the current severity and manifestations of her degenerative arthritis and degenerative disc disease, cervical spine. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability. It should be noted that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the degenerative arthritis and degenerative disc disease, cervical spine under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask her to describe the additional functional loss, if any, she suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. The examiner must also indicate whether a diagnosis of intervertebral disc syndrome is warranted, and if not, should provide a fully reasoned explanation as to why such a diagnosis is not warranted. The examiner must indicate whether the Veteran has incapacitating episodes due to intervertebral disc syndrome. For VA rating purposes, 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. If the Veteran experiences incapacitating episodes, the examiner must indicate the approximate number of weeks in the last year the Veteran has experienced incapacitating episodes. The examiner must also indicate whether the Veteran has any neurological disability as a result of her degenerative arthritis and degenerative disc disease, cervical spine. If so, the examiner should indicate the nerve or nerves affected, whether the neurological symptoms are better described as paralysis, neuritis, or neuralgia, and describe the severity of the neurological symptoms. The examiner should also state whether there are any scars related to the Veteran's cervical spine disability. If so, he or she should provide the findings necessary under the rating criteria for scars. 3. After completing the preceding development in paragraph 1, the Veteran should be afforded a VA examination to address the current severity and manifestations of her chronic sinusitis and allergic rhinitis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability. It should be noted that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the chronic sinusitis and allergic rhinitis under the rating criteria. 4. Then, readjudicate the issues on appeal, to include the inextricably intertwined issue of entitlement to a TDIU prior to March 10, 2011. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.