Citation Nr: 1311446 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-15 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased rating for service-connected narcolepsy, evaluated as 20 percent disabling prior to October 25, 2007, and as 40 percent disabling thereafter. 2. Entitlement to an initial evaluation in excess of 50 percent for service-connected sleep apnea. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran appealed, and in May 2011, the Board remanded the claim for additional development. FINDINGS OF FACT 1. A December 2012 RO rating action evaluated the Veteran's sleep apnea together with his service-connected narcolepsy and assigned a combined rating of 50 percent for these disabilities even though narcolepsy and sleep apnea each have their own separate and distinct diagnostic codes (DCs 6847 and 8108). 2. Prior to October 25, 2007, the Veteran's service-connected narcolepsy is not shown to have been productive of at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. 3. As of October 25, 2007, the Veteran's service-connected narcolepsy is not shown to have been productive of at least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. 4. The Veteran's service-connected sleep apnea is not shown to have been productive of chronic respiratory failure with carbon dioxide retention or cor pulmonale, and has not required a tracheostomy. [Continued on Next Page] CONCLUSIONS OF LAW 1. The RO's December 2012 decision to evaluate the Veteran's sleep apnea together with his service-connected narcolepsy and assign a combined rating of 50 percent was improper. 38 C.F.R. § 4.14; 4.97, Diagnostic Code 6847; 4.124a, Diagnostic Codes 8108, 9811 (2012); Esteban v. Brown, 6 Vet. App. 259, 262 (1994) 2. Prior to October 25, 2007, the criteria for a rating in excess of 20 percent for service-connected narcolepsy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b)(1), 3.159, 4.1, 4.7, 4.124a, Diagnostic Codes 8108, 9811 (2012). 3. As of October 25, 2007, the criteria for a rating in excess of 40 percent for service-connected narcolepsy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b)(1), 3.159, 4.1, 4.7, 4.124a, Diagnostic Codes 8108, 9811 (2012). 4. The criteria for an initial evaluation in excess of 50 percent for service-connected obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.7, 4.97, Diagnostic Code 6847 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating/Increased Initial Evaluation The Veteran asserts that he is entitled to an increased rating/increased initial evaluation for his service-connected narcolepsy and sleep apnea. As for the history of the disabilities in issue, see 38 C.F.R. § 4.1, the Veteran's service treatment reports do not show treatment for narcolepsy or sleep apnea; they show complaints of excessive fatigue. In 1998, following separation from service in 1997, the Veteran complained of hypersomnia, which he stated had begun during service. In a June 1998 VA examination report, he stated that he had a 10-year history of problems with sleep and fatigue. In 2000, the Veteran was diagnosed with narcolepsy. Beginning in 2001, the Veteran reported having some occasional paralysis upon awakening. An August 2005 VA examination report noted narcolepsy with cataplexy, and sleep paralysis. The report further noted that the Veteran had frightening dreams, and infrequent cataplectic attacks causing falls, and that his most disabling symptom was sleep paralysis because it may make him late for work. An April 2006 VA progress note showed that the Veteran complained of one to three "attacks" per month in which he felt paralyzed, lasting 30 minutes. He reported that he worked the third shift at the Post Office, that he had to report for work at 10:30 p.m., and that he had to use his sick leave a lot (one to three days per month). The assessments were narcolepsy, and poor sleep apnea. It was noted that the Veteran worked the third shift, and has broken sleep patterns, which likely exacerbate his problem. In November 2004, the RO granted service connection for narcolepsy, evaluated as 10 percent disabling. In December 2005, the RO increased his rating for narcolepsy to 20 percent. In each case, there was no appeal, and the RO's decisions became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012). On October 25, 2007, the Veteran filed a claim for an increased rating for his service-connected narcolepsy, evaluated as 20 percent disabling. In August 2008, the RO denied the claim. The Veteran appealed the increased rating issue, and in April 2009, the RO granted the claim, to the extent that it increased his rating to 40 percent, with an effective date of October 25, 2007. In June 2011, the RO granted service connection for sleep apnea, evaluated as 50 percent disabling, with an effective date for service connection of October 25, 2007. In a December 2012 supplemental statement of the case, the RO stated that it had evaluated the Veteran's sleep apnea together with his service-connected narcolepsy, and assigned a combined 50 percent rating (i.e., for both disabilities), with an effective date of October 25, 2007. Because these increases did not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). As the Veteran filed his claim on October 25, 2007, the time period in issue is from one year prior to the date of receipt of the claim, i.e., October 25, 2006. See 38 C.F.R. § 3.400(o)(2) (2012). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207 -08 (1994). As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson the Veteran is only competent to report observable symptoms, but not the clinical findings which are applied to VA's Rating Schedule. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). As an initial matter, in the December 2012 supplemental statement of the case, the RO stated that it had evaluated the Veteran's sleep apnea together with his service-connected narcolepsy. The RO assigned a combined rating of 50 percent for these disabilities. Under 38 C.F.R. § 4.14 (2012), the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. In Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the U.S. Court of Appeals for Veterans Claims (Court) held that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. In this case, the RO did not cite to any authority for combing the ratings for narcolepsy and sleep apnea, and the basis for the RO's action is unclear. Narcolepsy and sleep apnea each have their own separate and distinct diagnostic codes (DCs 6847 and 8108), and the Board can find no basis for combining the ratings of these two disabilities, as the symptomatology for each disability does not appear to be duplicative or overlapping. Esteban. In this regard, the diagnostic code for narcolepsy, DC 8108, requires that it be rated under the criteria for petit mal epilepsy, which involves seizures. The criteria for sleep apnea, DC 6847, involve such symptoms as hypersomnolence, and the need for a CPAP (continuous positive airway pressure) machine. Accordingly, the Board finds that these disabilities are more properly evaluated separately. In addition, the Board points out that in evaluating these disabilities separately, the Veteran's compensation payments are not reduced, and the provisions at 38 C.F.R. § 3.105(e) (2012) are not applicable. See 38 C.F.R. § 4.25 (2012); VAOPGCPREC 71-91, 57 Fed. Reg. 2316 (1992). The relevant medical evidence is summarized as follows: VA progress notes, dated between 2006 and 2011, show that in December 2006, the Veteran reported that he was seen twice a year for narcolepsy, and that he had been started on Imipramine for sleep paralyzation, which helped his symptoms, with no reports of side effects. He stated that he no longer has episodes of lying "paralyzed" in his bed, or flailing around. The Veteran stated that his narcolepsy was stable with about one to three episodes per month. He stated that he worked the third shift at the Post Office. The examiner noted that he was doing well and is stable on current regimen. He was to stay on Provigil 44 milligrams (mg.) bid (twice per day), and Imipramine 25 mg. po qhs (by mouth, every night). A June 2007 report shows that the Veteran complained of one to three episodes per month, and that he reported that his medications were working well. He reported increased snoring, with some stoppage of breathing, and that he did not feel well-rested after six hours of sleep. The examiner noted that he was doing well on his current regimen, but had increased snoring and possible sleep apnea. There was a suggestion of a possible demyelinating disease. He was to continue Provigil and Imipramine, and was to be given a brain MRI (magnetic resonance imaging study) and a sleep study. An August 2007 sleep study shows that the Veteran was found to have obstructive sleep apnea, normal sleep efficiency, increased stage shifts, and reduced latency to REM (rapid eye movement) sleep. It was recommended that he be given a CPAP trial, and encourage to lose weight. An October 2007 polysomnography report shows that it was recommended that the Veteran use nasal CPAP, and that possible treatment for periodic limb movements may be clinically indicated. A January 2008 report notes that the Veteran had changed his hours of work to 9:30 p.m. to 6:30 a.m., and that he had missed work the previous week due to narcolepsy. He complained of congestion, and reported using a CPAC machine which allowed him to get five to six hours of sleep, increased from three to four hours of sleep. The examiner noted that he had continued occasional narcoleptic attacks but also continues to have poor sleep hygiene and third-shift work. He was to continue Provigil and Imipramine. Two statements from a VA physician (one is co-signed by a second VA physician), dated in March 2008, state that the Veteran has narcolepsy and that he should be allowed to work closer to his home, and on a daytime shift. See also statement from VA nurse, dated in April 2010, and statement from Dr. H.A.B., dated in May 2011 (same). An August 2008 report notes a history of excessive daytime sleepiness for many years, with loud snoring, sleep paralysis, and cataplexy. A September 2008 statement from a VA physician urges that the Veteran should not be scheduled to work third-shift hours, as he has narcolepsy and should maintain a regular sleep/wake schedule, and avoid sleep deprivation. The Veteran reported working 9:30 p.m. to 6 a.m., and sleeping 6:30 a.m. to noon, a total of three to five hours per day "not at a stretch." A March 2009 report notes that the Veteran had provided a list showing the number of missed days from work between December 2008 and March 2009, to include 17 days absent for sleep problems. The physician noted that the Veteran had missed his past two appointments in the Sleep Clinic, and that he had not followed recommendations regarding lifestyle changes that would benefit his sleep disorder. The physician recommended that the Veteran file for disability as he appears to be unable to work in a sustained manner. However, the physician stated that he did not feel that a greater number of days would be appropriate, that he would continue to certify only six days per month, and that he would not provide a medical excuse for days missed beyond this number. A December 2009 report shows that the Veteran stated that his sleep routine was unchanged from his last visit. He complained of daytime sleepiness but denied falling asleep while driving. The assessment noted poor sleep hygiene, and that the Veteran had been unable to make lifestyle changes to improve control of his symptoms. Provigil was to be continued as needed. A June 2010 report shows that the Veteran reported working full-time for the Postal Service, 8:30 p.m. to 4:30 a.m., and that he slept from 5 or 5:30 a.m. to noon, and took a nap for two to three hours in the afternoon or evening, and reported alertness at work. He stated that his current sleep pattern allowed him to be alert at work and he does not wish to change it to consolidate his sleep period. He took Modafinal at night to optimize alertness. His symptoms of sleepiness were noted to be well-controlled. The Veteran denied cataplexy. Reports, dated in July 2010, show that the Veteran reported getting divided, but adequate sleep, and that he denied difficulties performing activities of daily living or instrumental activities of daily living. The Veteran reported being late for work a lot, but "hardly missing any days of work." Treatment reports from H.A.B., M.D., dated between 2006 and 2010, show that in May 2007, the Veteran was treated for narcolepsy. He reported that he worked the third shift, and got about six hours of sleep per day, and that he used Provigil prior to work, and once during work, which was "working well." He reported having cataplexy and sleep promises about once or twice per month, and he felt Imipramine kept his symptoms under control. He denied side effects. The impression was narcolepsy with cataplexy, satisfactorily controlled per patient. He was to continue Provigil and Imipramine. In November 2007, he reported having stable narcolepsy, with about three episodes of cataplexy per week, sleep paralysis twice per week, and hallucinations. He reported sleeping 9 a.m. to noon, and from 5 to 9 p.m., and that he was working the third shift (10:30 p.m. to 7 a.m.). The assessment notes stable narcolepsy with cataplexy, on Provigil and Imipramine, that the Veteran was happy with the level of control, and that there was a recent diagnosis of OSA (obstructive sleep apnea), with use of a CPAP machine. A May 2008 report notes cataplexy two to three times per week and occasional hallucinations, and about "8+ hours" of interrupted sleep per night. The impression was narcolepsy with cataplexy, symptoms complex remains frequent and bothersome, OSA with reported good compliance, and shift work disorder complicating the above. His Imipramine was to be increased 50 mg., and his Provigil was to be continued. A November 2008 report notes that the Veteran reported an essentially unchanged frequency of symptoms since his last treatment, although he had subjective improvement. He reported sleeping about 61/2 hours per day, divided into two episodes. The impression notes subjective improvement of narcolepsy with cataplexy, and OSA with improved compliance, and that a shift work sleep disorder complicated his conditions. A March 2010 report shows that the Veteran reported that he still worked the third shift at the Post Office, that he used a CPAP machine all the time, that he used Provigil twice a shift at work which helped him stay awake, and that he never missed work although he was sometimes late because of oversleeping. He stated he slept about 61/2 hours or more per day, divided in two episodes, and that he had no problems with driving. He stated his sleep paralysis had decreased to one or twice per month, with occasional cataplexy at the same frequency. The impression notes stable narcolepsy with cataplexy, and no need to adjust medications, OSA with improved compliance, and that his shift work sleep disorder complicated his conditions. He was to continue on Provigil and Imipramine. An October 2010 report notes improved sleep paralysis frequency "and he gets it in weeks to months." He denied any problems with driving. He reported sleeping twice per day. The impressions note that he was compliant with his CPAP machine, and that his narcolepsy and sleep apnea were controlled. He was to continue on Provigil and Imipramine. A VA neurological examination report, dated in June 2007, shows that the Veteran reported that use of Modafinil provided significant symptomatic benefit, but that he still had chronic fatigue, which appeared to be further exacerbated by long-term third-shift work at the Postal Service. The Veteran reported that he had made numerous requests to work a daytime shift without success. The Veteran stated that he was late to work, or missed work, twice a week, and eight times per month. He complained of increasing snoring. An examination was performed. The examiner concluded that the Veteran has a well-documented diagnosis of narcolepsy, with continued significant symptoms despite use of Modafinil, and that his examination revealed signs of fatigue, with indications of a possible separate brain disorder. The examiner stated that the Veteran's symptoms and work problems continued to be a significant issue, and that his current rating of 20 percent appeared to underestimate the impact of this condition on his life. A VA neurological examination report, dated in July 2008, shows that the Veteran complained of increased symptoms, but stated that his medications worked well. He complained of snoring, passing gas, and slobbering in his sleep, which negatively affected his relationship with his girlfriend. He reported the following: he still got "paralyzed" when he coughs and laughs, indicating he can't move for a few seconds. He slept on his break at work on a daily basis, and he was likely to fall asleep at work if he did not sleep adequately during the day. His CPAP machine improved his sleep, but he did not use it every time he sleeps. He was late for work, or missed work, ten times. He took medications for narcolepsy prior to work, and four hours into his shift, which helped him stay awake during his job on the third shift. He does not maintain regular sleep-time reporting. He will sleep either immediately when he gets home or may not go to bed for several hours. He does not sleep more than three or four hours, then he will sleep again at least three hours prior to work. He used his CPAC machine as often as he could, suggesting every other day, and he admitted that it was helpful when he used it. The diagnoses were narcolepsy, and sleep apnea. A form filed with the Department of Labor, completed by Dr. H.A.B., dated in May 2011, shows that he states that the Veteran was treated on eight occasions between 2006 and 2010, that he is to continue on the third shift, that he is not to work more than 40 hours per week, and that he may experience fatigue due to medications used for back and neck pain. He further stated that the Veteran had narcolepsy and sleep apnea, that he requires ongoing medication and a sleep apparatus, and that these are chronic conditions which result in flare-ups and impair his ability to sustain wakefulness. Dr. H.A.B. indicated that during flare-ups, the Veteran may be incapacitated and may not be able to stay awake. Flare-ups were estimated to occur four to six times per month, lasting two to three days per episode. A VA examination report, dated in July 2011, shows that the Veteran reported that his use of a CPAP machine had helped him "very much." He complained of disruptive sleep and that he tended to wake up after three hours. This examination was performed in order to obtain an etiological opinion; there were no relevant findings. A. Narcolepsy The Veteran's narcolepsy has been evaluated as 20 percent disabling prior to October 25, 2007, and as 40 percent disabling thereafter. Narcolepsy is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8108, which provides that narcolepsy is to be rated using the criteria for petit mal epilepsy. Under 38 C.F.R. § 4.124a, DC 9811, epilepsy, petit mal, is to be evaluated under the general formula for minor seizures. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. [Note 1] A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). [Note 2] Under the general formula for minor seizures, a 20 percent evaluation is warranted for: At least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent evaluation is warranted for: At least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. A 60 percent evaluation is warranted for: At least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. [Note 1] In the presence of major and minor seizures, rate the predominating type. [Note 2] There will be no distinction between diurnal and nocturnal major seizures. [Note 3] As an initial matter, notwithstanding unexplained statements in VA disability benefits questionnaires (DBQ), dated in July and November of 2012, a review of the medical evidence shows that the Veteran has never been found to have a generalized tonic-clonic convulsion with unconsciousness. See 38 C.F.R. § 4.124a, DC 8911. Upon VA examination in July 2011, no seizures were reported, and no seizure pathology was found on examination. The Board therefore finds that the Veteran's disabilities are not shown to have resulted in a major seizure. Id.; see also Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). 1. Prior to October 25, 2007 The Board finds that a rating in excess of 20 percent is not warranted prior to October 25, 2007. The evidence shows that as of December 2006, the Veteran had been started on Imipramine for sleep paralyzation, which helped his symptoms. He stated that he no longer has episodes of lying "paralyzed" in his bed, or flailing around. The Veteran stated that his narcolepsy was stable with about one to three episodes per month. The examiner noted that he was doing well and is stable on current regimen. In June 2007, the Veteran again complained of one to three episodes per month, and he stated that his medications were working well. He primarily complained of sleep apnea symptoms. Treatment reports from Dr. H.A.B. show that in May 2007, the Veteran reported that he used Provigil prior to work, and once during work, which was "working well." He reported having cataplexy and sleep promises about once or twice per month, and he felt Imipramine kept his symptoms under control. The impression was narcolepsy with cataplexy, satisfactorily controlled per patient. The July 2007 VA neurological examination report notes that the Veteran has significant symptoms despite use of Modafinil, and that his examination revealed signs of fatigue, with indications of a possible separate brain disorder. The examiner stated that the Veteran's symptoms and work problems continued to be a significant issue, and that his current rating of 20 percent appeared to underestimate the impact of this condition on his life. Nevertheless, this report does not show that the Veteran has symptoms implicating the criteria for a rating in excess of 20 percent. See DC 9811. The Board therefore finds that the evidence is insufficient to show that the Veteran's narcolepsy is shown to have been productive of at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. 2. As of October 25, 2007 The Board finds that a rating in excess of 40 percent is not warranted as of October 25, 2007. Reports from Dr. H.A.B. show that the Veteran reported having stable narcolepsy, with about three episodes of cataplexy per week, sleep paralysis twice per week, and hallucinations (November 2007); cataplexy two to three times per week and occasional hallucinations (May 2008) (unchanged as of November 2008; that his sleep paralysis had decreased to one or twice per month, with occasional cataplexy at the same frequency (March 2010); and improved sleep paralysis frequency which "he gets it in weeks to months" (October 2010). They show that on several occasions, his condition was noted to be stable or "controlled." The July 2008 VA neurological examination report merely shows that the Veteran reported that he still got "paralyzed" when he coughed and laughed, indicating he can't move for a few seconds; no specific frequency of symptoms was provided. In July 2011, the Veteran stated that his CPAP machine had helped him "very much." He merely complained of disrupted sleep, and that he tended to wake up after the first three hours. No seizures were reported, and no seizure pathology was found on examination. The Board therefore finds that the evidence is insufficient to show that the Veteran's narcolepsy has been productive of at least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. B. Sleep apnea The Veteran's service connected obstructive sleep apnea has been evaluated as 50 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6847, effective October 25, 2007. Under DC 6847, a 50 percent evaluation is warranted for sleep apnea syndromes which require use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent disability rating is warranted for sleep apnea that results in chronic respiratory failure with carbon dioxide retention or cor pulmonale or, requires tracheostomy. Id. The Board finds that the Veteran does not warrant an initial evaluation in excess of 50 percent for the Veteran's sleep apnea. There is no evidence to show that the Veteran has had chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that he has required a tracheostomy. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. C. Conclusion The Board has fully considered how the Veteran's symptoms affected his overall occupational and social impairment. A Veteran is usually competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claims for increased ratings/increased evaluations, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). While he is competent to report that his symptoms are worse, the training and experience of medical personnel makes the medical findings found in treatment notes and examinations more probative as to the extent of the disability. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Consideration has been given to assigning a staged rating for these claims; however, at no time during the time period in question have the Veteran's symptoms warranted the assignment of a rating higher or evaluation than what has been herein affirmed. See Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007). In conclusion, the Board finds that the criteria for an increased rating for narcolepsy, and an initial disability rating in excess of 50 percent for sleep apnea have not been met. Where, as here, the preponderance of the evidence is against the claims, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's narcolepsy, and sleep apnea, do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In this case, the Veteran has not expressly raised the matter of entitlement to an extra-schedular rating for his service-connected narcolepsy, and/or sleep apnea. The Veteran's contentions have been limited to those discussed above, i.e., essentially that his disability is more severe than reflected by the currently assigned ratings. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). In this regard, the evidence shows that the Veteran has repeatedly been noted to have poor sleep hygiene, and to have been unable to make lifestyle changes to improve control of his symptoms. Although the June 2007 VA examination report shows that the Veteran stated that he had made numerous requests to work a daytime shift without success, a June 2010 VA report shows that the Veteran stated that his current sleep pattern allowed him to be alert at work and that he did not wish to change it to consolidate his sleep period. The May 2011 statement of Dr. H.A.B. appears to show that the Veteran requested to remain on the third shift. In any event, there has been no showing that the Veteran's disability picture for his narcolepsy, and/or sleep apnea, could not be contemplated adequately by the applicable schedular rating criteria discussed above. Those criteria provide for higher ratings in this case, but as has been explained thoroughly herein, the currently assigned ratings adequately describe the severity of the Veteran's symptoms. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's anxiety disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extra-schedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also 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). II. The Veterans Claims Assistance Act of 2000 The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in a letter from the RO dated in December 2007. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). In June 2011, the Veteran was granted service connection for sleep apnea, and assigned an initial disability rating and effective date. As this claim was more than substantiated in that it was proven, the purpose that the notice is intended to serve has been fulfilled and no additional notice is required for this claim. Dingess, 19 Vet. App. at 490-91. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded examinations. In May 2011, the Board remanded this claim. The Board directed that the Veteran be requested to identify all VA and non-VA treatment, followed by an attempt to obtain all identified records of treatment. In May 2011, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's remand. VA and non-VA reports, dated between 2008 and 2012, have been obtained and are associated with the claims file. The Board also directed that the Veteran be afforded another examination, and in July 2011, this was done. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Veteran and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claim on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims does not cause any prejudice to the Veteran. ORDER The ratings assigned for service-connected narcolepsy and sleep apnea may not be combined into a single rating. Prior to October 25, 2007, a rating in excess of 20 percent for service-connected narcolepsy is denied. As of October 25, 2007, a rating in excess of 40 percent for service-connected narcolepsy is denied. An initial evaluation in excess of 50 percent for service-connected sleep apnea is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs