Citation Nr: 1025434 Decision Date: 07/08/10 Archive Date: 07/19/10 DOCKET NO. 08-24 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a psychiatric disorder claimed as panic attacks and anxiety, to include whether new and material evidence has been received to reopen a previously denied claim. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for sleep apnea, claimed as secondary to the service-connected allergic rhinitis. 4. Entitlement to an increased evaluation in excess of 10 percent for the service-connected allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned Acting Veterans Law Judge in a videoconference hearing from the RO in January 2010. A transcript of the hearing has been associated with the claims file. The Board herein below grants service connection for a psychiatric disorder manifested by generalized anxiety disorder (GAD). During the Veteran's Board hearing, his representative raised the issue of entitlement to an increased rating for the service-connected psychosocial gastrointestinal reaction. As the issue is now more properly characterized as entitlement to an increased evaluation for a psychiatric disorder manifested by GAD and psychosocial gastrointestinal reaction, the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action. The issue of entitlement to service connection for a bilateral knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied service connection for a psychiatric disorder including PTSD, anxiety, and somatization disorder, in an April 2000 rating decision; the Veteran was notified in writing of this decision, but he did not file a timely notice of disagreement. 2. The evidence received since April 2000 is neither cumulative nor redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a psychiatric disorder. 3. The Veteran's psychiatric disorder, currently manifested by GAD, manifested during his service and was chronic since service separation, and the weight of the evidence is at least in relative equipoise in demonstrating that the disorder is related to his symptoms during service. 4. Sleep apnea is etiologically related to the Veteran's allergic rhinitis. 5. The service-connected allergic rhinitis is not shown to have been manifested by more than allergic rhinitis without polyps but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. Because evidence received since April 2000 is new and material, the claim of service connection for a psychiatric disorder is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2008). 2. Generalized anxiety disorder is due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009). 3. Sleep apnea is proximately due to or the result of the service-connected allergic rhinitis. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009). 4. The criteria for the assignment of an increased evaluation in excess of 10 percent for the service-connected allergic rhinitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.97 including Diagnostic Code 6522 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Initially, the Board notes that in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations provide that, upon the submission of a substantially complete application for benefits, VA has an enhanced duty to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present case, considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims decided below has been accomplished. To the extent that the action taken below is favorable to the Veteran, the Board finds that no further notification or assistance is required as to the claims of service connection for a psychiatric disorder (to include whether new and material evidence has been submitted to reopen a previously denied claim) and sleep apnea. With regard to the claim for an increased evaluation for the service-connected allergic rhinitis, the VCAA duty to notify was satisfied by a letter sent to the Veteran in October 2007, which fully addressed what evidence was required to substantiate the claim and the respective duties of VA and a claimant in obtaining evidence. The October 2007 letter also advised the Veteran of the five Dingess elements, to specifically include that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman, 19 Vet. App. at 484. For these reasons, the Board finds that any arguable lack of full preadjudication notice in this appeal has not, in any way, prejudiced the Veteran. See Shinseki v. Sanders, ---U.S. ----, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). The Board also finds that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the Veteran in connection with the claim for an increased evaluation. First, the Veteran's service treatment record (STR) is on file, and the claims file contains medical records from those VA and non-VA medical providers that the Veteran identified as having relevant records. The Veteran (nor his representative) has identified, and the file does not otherwise indicate, that any other VA or non-VA medical providers have additional pertinent records that should be obtained before the appeal is adjudicated by the Board. Second, the Veteran was afforded VA examinations, most recently in October 2009, to evaluate the severity of his allergic rhinitis. The Board finds that the October 2009 VA examination is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the service- connected allergic rhinitis in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have increased in severity since that evaluation. The Board thus finds no reason to remand for further examination. Finally, the Veteran has been afforded a hearing before an Acting Veterans Law Judge at which he presented oral argument in support of his claim. For these reasons, the Board finds that all necessary facts have been properly developed in regard to the Veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist in the development of evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In conclusion, because all duties to notify and assist have been satisfied, the Board will proceed with consideration of the merits of the appeal. II. Analysis A. Entitlement to Service Connection The Veteran is contending that service connection is warranted for a psychiatric disorder manifested by panic attacks and anxiety, plus sleep apnea. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Also, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service- connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (BVA has a duty to assess). Anxiety and Panic Attacks As an initial matter, the Board points out that the RO previously denied a claim of service connection for posttraumatic stress disorder (PTSD) and anxiety in a February 1999 rating decision based on a determination that the evidence did not contain a verified stressor. In the same rating decision, the RO also denied service connection for somatization disorder based on a determination that the evidence failed to establish a relationship between somatization disorder, dysomnia/breathing- related disorder, and PTSD. In July 1999, the Veteran submitted a letter requesting that he be considered for service connection for "psychological and anxiety disorders" and somatization disorder. Attached to his July 1999 letter, the Veteran submitted VA treatment records dated between January and April 1999. The Veteran submitted further evidence in August 1999. According to 38 C.F.R. § 3.156(b), if new and material evidence is received during the applicable appellate period following a RO decision (one year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the pending claim that was pending at the beginning of the appeal period. See Charles v. Shinseki, 587 F.3d. 1319 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007); see also Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161- 62 (1999). Here, the new records are material, because they include an April 1999 letter from a private physician who wrote that the Veteran's records "clearly establish the fact that [the Veteran was] treated for anxiety" during active service. Also included is a March 1999 VA neurology note indicating that the Veteran complained of problems associated with anxiety since "several years ago." This new evidence, in other words, addresses the reason the claim was denied in February 1999. In light of this new and material evidence, the February 1999 rating decision did not become final. In an April 2000 rating decision, however, the RO readjudicated the issue, which the RO characterized as service connection for "somatization disorder also claimed as psychological and anxiety disorders" as secondary to the service-connected allergic rhinitis. The RO denied the claim on the basis that the Veteran had not submitted a well grounded claim (because the evidence did not show a relationship between somatization disorder and the service-connected allergic rhinitis). The Veteran did not submit a timely NOD. The Board points out that under section 7 of the VCAA, if a claim previously denied as being not well grounded became final between July 14, 1999, and November 9, 2000, it may be readjudicated under the VCAA "as if the denial or dismissal had not been made," provided a timely request is filed by the claimant or on the Secretary's own motion. See Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1343-44 (Fed. Cir. 2003). If there was a request made by a claimant, that request had to be filed by the claimant no later than two years after the date of the enactment of the VCAA, i.e., not later than November 9, 2002. Here, the Veteran's claim was denied in a rating decision between July 14, 1999, and November 9, 2000, for being not well grounded. He did not, however, submit a request to have the claim readjudicated prior to November 9, 2002. In fact, the record reveals that the RO did not receive any further correspondence from the Veteran until June 2006. Accordingly, the April 2000 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103; Paralyzed Veterans of Am., 345 F.3d at 1343- 44. The Veteran filed his instant petition to reopen in July 2007. A claim that has been previously denied may only be considered if new and material evidence has been submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). During his January 2010 Board hearing, the Veteran argued that his current claim of service connection for "panic/anxiety" is distinct from his previously denied claims. Generally, if claims are "based upon distinctly and properly diagnosed diseases or injuries" they constitute separate claims. Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008). Here, however, the Veteran's prior claim was for "psychological and anxiety disorders." Consistent with the Veteran's broad description of his claim, the RO construed the claim in April 2000 as encompassing "somatization disorder (also claimed as psychological disorders)." Because the RO adjudicated the claim to broadly encompass any psychiatric disorder, the present claim of service connection for panic and anxiety does not constitute a new claim. See Velez v. Shinseki, 23 Vet. App. 199, 205 (2009). The RO properly characterized the July 2007 claim as a petition to reopen the previously denied claims. Regarding petitions to reopen filed on or after August 29, 2001, as in this appeal, Title 38, Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation cited hereinabove, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Here, the evidence associated with the claims file since the April 2000 rating decision includes VA outpatient treatment records, the Veteran's lay testimony at a January 2010 Board hearing, and copies of letters the Veteran wrote to his wife during his active service. The Board finds that these items are "new" evidence because they were not before the adjudicator in April 2000. The Board also finds that the new evidence is "material" because it directly addresses the relationship between the Veteran's service and his psychiatric disorder. The Board accordingly finds that new and material evidence has been received to reopen the claim, and it is now subject to review based on the entire evidentiary record. In this regard, the Board finds that by extending the Veteran the benefit of the doubt, service connection is warranted for generalized anxiety disorder (GAD). The Board points out that the scope of the present claim does not include his claim of service connection for PTSD. That claim has been subject to independent evidentiary development and adjudication, most recently in a May 2009 RO rating decision. In a February 2009 statement, the Veteran wrote that he was submitting evidence to support "PTSD (stressors), sleep apnea, and anxiety." This shows that considered his claims of service connection for PTSD and anxiety distinct. In light of these considerations, his present claim is not found to reasonably encompass a claim of service connection for PTSD. The Veteran's STR shows that he was treated on numerous occasions for complaints of anxiety. For instance, a July 1969 treatment note shows that he was concerned about "anxiety feelings." He was seen for "nervis [sic] trouble." On follow-up in January 1970, it is noted that the Veteran's anxiety had a good response to mild tranquilizer. The record also reveals that the Veteran frequently wrote letters to his wife during this time. He described, for instance, having "anxiety and restlessness" and "nerves . . . not in the best condition," which prevented him from sleeping well. He explained that he saw a psychiatrist who gave him some medicine to relax his nerves. At service separation in March 1970, the Veteran endorsed "frequent trouble sleeping" and "nervous trouble of any sort." The indication was situational insomnia and anxiety. At this January 2010 Board hearing, the Veteran testified that after his service separation in May 1970, he worked in education where his symptoms persisted. Consistent with his assertions, he underwent a VA examination in July 1976. During the examination, the Veteran complained of "nervous problems" with symptoms such as not sleeping well if he did a lot of work. He would also get butterflies in his stomach. The VA examiner, at that time, determined that the Veteran's symptoms did not warrant a diagnosis. More recent treatment records, such as in August 1991 and November 1993, show that the Veteran complained of having anxiety and panic attacks. Then, during a March 1996 VA psychiatry examination, the Veteran complained of anxiety speaking in front of a group. The examiner noted that the Veteran had a history of nervousness prior to service, as well as anxiety and insomnia noted at service separation. The assessment was social phobia developed "recently." In July 1998, the Veteran underwent an extensive evaluation with a private psychologist. The Veteran informed the psychologist that he had a "changed mental and physical status since serving" on active duty. Now, he had panic attacks, including concurrent with a history of allergies. He also had symptoms of insomnia and anxiety. As part of the evaluation, the psychologist administered ten different psychological tests. Based on the evaluation results, the psychologist diagnosed somatization disorder and GAD. He also noted provisional diagnoses of panic disorder with agoraphobia, PTSD, and dysomnia/breathing related disorder. The psychologist then opined that "[i]t is possible that [the Veteran]may have a posttraumatic pattern caused by military service or may have developed an intensified somatiform pattern while on active military duty." During this time, the Veteran underwent regular treatment at a VA mental health clinic (MHC). The treatment notes show that the Veteran complained of such symptoms as anxiety and panic attacks. The assessment was anxiety disorder, not otherwise specified (NOS). In April 1999, the private psychologist who previously evaluated the Veteran in July 1998 wrote a letter explaining that the Veteran's records, including in-service treatment notes from December 1969 and January 1970, clearly establish that he was treated for anxiety and other psychological disorders during active service. Any indication that he did not have these disorders during active service, according to the psychologist, is incorrect. In August 1999, the Veteran underwent a VA psychiatry examination. The Veteran gave a history of anxiety, which, the VA examiner opined, initially appeared to have been social phobia, but is now GAD. Most recently, in May 2009, the Veteran underwent an extensive VA psychological evaluation related to his complaints of diminished concentration and worse short-term memory problems. The Veteran reported a history of having been diagnosed with anxiety during service. Following service, he started having panic attacks and was diagnosed with social phobia at VA in the 1990s. In pertinent part, the VA psychologist noted that the Veteran reported a significant history of anxiety and symptoms that appear most consistent with GAD. He may also experience symptoms of panic disorder and/or social phobia, but the psychologist felt that further information was needed in this regard. In summary, the evidence shows that the Veteran was treated for symptoms of anxiety during service. At service separation, his complaints were found to represent "situational insomnia and anxiety." Subsequent to his service separation, he continued to experience symptoms of anxiety, which a private psychologist in April 1999 and a VA psychologist in May 2009 related to the Veteran's in-service symptoms. In light of this evidence, the Board finds the evidence to be at least in a state of relative equipoise in showing that the Veteran has a psychiatric disorder currently manifested by GAD that was as likely as not incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Accordingly, by extending the benefit of the doubt to the Veteran, service connection is warranted. In making this determination, the Board recognizes that the Veteran is already service-connected for psychosocial gastrointestinal reaction. The claims are considered independent claims of service connection because the disabilities have been separately diagnosed and treated. See Boggs, 520 F.3d at 1335. Nonetheless, the now-service-connected disabilities are related. Accordingly, in assigning an initial disability rating, the RO should consider that the service-connected psychiatric disability is more properly characterized as a psychiatric disability manifested by GAD and psychosocial gastrointestinal reaction. Sleep Apnea The Veteran is also seeking service connection for sleep apnea as secondary to the service-connected allergic rhinitis. In reviewing the evidence, the Board finds that by extending the benefit of the doubt to the Veteran, service connection is warranted. The pertinent evidence includes a March 1996 VA treatment note showing that the Veteran was evaluated for nasal obstruction with history of allergic rhinitis, including complaints of a history of loud snoring and daytime hypersomnolence. The assessment was probable obstructive sleep apnea, with sleep study needed. Similarly, during April 1997 VA treatment, the Veteran complained of loud snoring. The assessment was chronic nasal congestion. In December 1999, the Veteran underwent a VA examination. The VA examiner explained that an October 1999 sleep study showed a combination of sleep apnea and sleep disturbance due to chronic coughing as a result of sinus drainage. Therefore, according to the VA examiner, "all one could say with medical certainty is that [the Veteran's] upper respiratory allergic rhinitis contributes to his insomnia as well as his sleep apnea." The examiner found that the percentage attributable to each could not be distinguished with any medical certainty. A November 2007 VA sleep study indicates that the Veteran could not use a continuous positive airway pressure machine (C-PAP) until his clinical condition involving nasal congestion improved. In light of this evidence, the Board finds that the evidence is at least in a state of relative equipoise in showing that the Veteran's sleep apnea is proximately due to his service-connected allergic rhinitis. Accordingly, service connection is warranted on a secondary basis. See 38 C.F.R. § 3.310. B. Entitlement to an Increased Evaluation The Veteran is also seeking an increased evaluation for the service-connected allergic rhinitis higher than the presently assigned 10 percent rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year of his July 2007 claim. Evaluations of allergic or vasomotor rhinitis are assigned under the provisions of 38 C.F.R. 4.97, Diagnostic Code 6522. The schedular criteria provide that a 10 percent rating is assigned for allergic rhinitis without polyps but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent rating is assigned for allergic rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522 (2008). Here, in comparing the Veteran's symptoms during the period of appellate review to the rating criteria, the Board finds that the service-connected allergic rhinitis does not warrant an evaluation in excess of the currently assigned 10 percent because the evidence does not show that the Veteran has allergic rhinitis with polyps. See id. To the contrary, the evidence shows that the Veteran does not have polyps. He underwent regular treatment at VA for his service-connected allergic rhinitis, but there is no indication of polyps. In a September 2007 letter to the Veteran, the Veteran's VA care providers explained that a computed tomography (CT) scan of the head and sinuses was normal. The Veteran also underwent a VA examination in November 2007. The VA examiner found, in pertinent part, that the Veteran had chronic allergic vasomotor rhinitis with moderate obstruction. The VA examiner, however, did not note the presence of polyps. In October, 2009, the Veteran underwent another VA examination. The examiner noted the Veteran's history of chronic nasal problems with treatment that did not totally relieve the symptoms. On physical examination, the VA examiner found a 50 percent obstruction on the left and 70 percent obstruction on the right. There was no evidence of polyps. The VA examiner's assessment was chronic, allergic, vasomotor rhinitis with chronic obstructive symptoms caused by the thickening of the septum and hyperemia of the turbinates. More recently, a May 2009 VA primary care note shows that the Veteran reported having had no problems related to the allergic rhinitis, and he declined a refill for his medication as he was doing well. In summary, the evidence does not show that the Veteran has allergic rhinitis with polyps. Accordingly, an evaluation higher than 10 percent is not warranted. See 38 C.F.R. § 4.94, Diagnostic Code 6522. "Staged ratings" are not warranted because the schedular criteria for a higher rating were not met at any time during the period under appellate review. See Hart, 21 Vet. App. at 505. The Board's findings above are based on schedular evaluation. To afford justice in exceptional situations, an extraschedular rating may also be provided. 38 C.F.R. § 3.321(b). Here, however, referral for extraschedular consideration is not warranted. First, the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology. Furthermore, the evidence does not show marked interference with employment in excess of that contemplated by the rating schedule. To the contrary, the Veteran testified at his January 2010 Board hearing that he was retired. He explained that he retired early due, in part, to his psychiatric symptomatology, but he did not indicate that his service-connected allergic rhinitis symptoms interfered with his work. The evidence also does not show frequent periods of hospitalization or other evidence that would render impractical the application of the regular schedular standards. For these reasons, the Board is not required to remand the Veteran's claim for consideration of extraschedular ratings under 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115 (2008); 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 As new and material evidence has been received to reopen the claim of service connection for a psychiatric disorder, the appeal to this extent is allowed. Service connection for generalized anxiety disorder is granted. Service connection for sleep apnea is granted. An evaluation in excess of 10 percent for allergic rhinitis is denied. REMAND Upon review, the Board finds that the claim of service connection for a bilateral knee disorder must be remanded for further evidentiary development to include scheduling the Veteran for a VA examination. During his January 2010 Board hearing, the Veteran testified that he first had pain, swelling, fluid while doing advanced training during service. He subsequently had pain on-and-off throughout the remainder of his service, even though he did not complain of knee pain at service discharge or after his service discharge until the pain became more serious in the 1980s. Consistent with his testimony, the Veteran's service treatment record (STR) shows that he sought treatment in December 1967 for complaints of pain in both knees for seven days. Also consistent with the Veteran's assertions, the March 1970 separation examination shows that the Veteran denied trick or locked knee, and clinical evaluation of the lower extremities was "normal." The first post-service treatment, as the Veteran indicated, appears in a May 1986 private (non-VA) treatment note. The Veteran complained of swollen left knee for 10 days, non-tender. Minimal effusion on physical examination. He was treated with aspirin. From June through August 1986, the Veteran sought further treatment for complaints of swelling with and without pain. In July 1986, he had fluid aspirated from his knee. Then in September 1988, the Veteran sought treatment at a private emergency room for unrelated complaints (trouble breathing). On review of the Veteran's history, it is noted that he had intermittent pain and swelling in the left knee "probably due to previous trauma." There was no swelling on physical examination. More recently, during an October 2007 VA orthopedic consultation, the Veteran again complained of chronic bilateral knee pain. Physical examination revealed full range of motion with small effusions and mild varus deformities. X-rays showed minimal joint space narrowing, but no significant change. The assessment was mild arthritis in both knees. Then in February 2008, he was treated for acute bursitis secondary to working on hardwood floors one week prior. In April 2008, on follow-up orthopedic consultation at VA, it was determined that the Veteran had an acute and chronic condition of bilateral knee arthrosis. In summary, the evidence shows (1) competent evidence of a current bilateral knee disability, plus continuous symptoms since service; (2) evidence establishing the Veteran was treated for knee pain during service; and (3) an indication that the recurring knee symptoms may be associated with the Veteran's service. Because the record otherwise lacks sufficient competent evidence upon which the Board can make a decision, remand for a VA examination is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the claims of service connection for a right and left knee disorder are REMANDED for the following action: 1. The RO should send the Veteran a letter advising him of the information and evidence necessary to substantiate the remanded claim, as required by Dingess/Hartmann v. Nicholson, 19 Vet. App. 473 (2006). The letter should also request that the Veteran provide the names, addresses, and approximate dates of treatment for all health care providers who may have additional records pertinent to his claim. 2. After the Veteran has signed any necessary releases, the RO should make as many attempts as necessary to obtain all pertinent records identified by the Veteran not already associated with the claims file. All records obtained must be associated with the claims file. Further, all attempts to procure any identified records must be documented in the claims file and, if any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in order to allow him the opportunity to obtain and submit those records for VA review. 3. After completing the above requested development, the RO should undertake any further development warranted by the record. Then, the RO should schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed bilateral knee disorder. The entire claims file, including a copy of this remand, must be made available to the examiner for review. Accordingly, the examiner should review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies. Based on the examination results, the examiner should provide a current diagnosis and specifically indicate whether it is at least as likely as not that the Veteran has a right and/or left knee disorder that was incurred during his active service, became manifest within a one-year period following his service separation, or is otherwise etiologically related to his active service. In making this determination, the VA examiner is asked to address the Veteran's credible assertions that he has had continuous knee symptoms since his active service. The examiner should prepare a printed (typewritten) report setting forth all examination findings, along with a complete rationale for all opinions and conclusions reached. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. 4. After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the remanded claim of service connection for a bilateral knee disorder in light of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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. 2009). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs