Citation Nr: 1333227 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 12-07 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for bilateral plantar fasciitis. 2. Entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea with bronchial asthma. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active military service from October 1987 to October 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2010 and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an increased disability rating in excess of 10 percent for bilateral plantar fasciitis is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran's bronchial asthma is manifested by FEV-1 results of between 60 and 84 percent of predicted value; FEV-1/FVC ratios of between 61 and 63 percent; and daily inhalational bronchodilator and anti-inflammatory therapy; and is not productive of FEV-1 results between 40 and 55 percent predicted; FEV-1/FVC ratios between 40 and 55 percent; at least monthly visits to a physician for required care of exacerbations; intermittent courses of oral or parenteral systemic corticosteroids; or immuno-suppressive medications. 2. The Veteran's obstructive sleep apnea is manifested by the use of a continuous positive airway pressure (CPAP) breathing assistance device and persistent day-time hypersomnolence; and is not productive of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or a tracheostomy. 3. The Veteran's obstructive sleep apnea is his most prominent disability. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for obstructive sleep apnea with bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Codes 6602, 6847 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). Under the VCAA, VA must assist a claimant when he or she files a complete, or substantially complete, claim for benefits. This assistance involves notifying claimants of evidence that is necessary, or would be of assistance, in substantiating their claims, and providing notice that, if service connection is awarded, a disability rating and an effective date for the award of benefits will be assigned. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2013); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). For increased disability rating claims, the VCAA only requires general notice that is not tailored to the specific disability that informs the claimant that the evidence necessary to substantiate a claim includes: (1) evidence showing a worsening or increase in severity; (2) evidence showing the effect of any worsening on employment; and (3) general notice of how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277-78 (Fed. Cir. 2009). In this case, the Veteran received a VCAA notice letter in September 2009 that informed him of the evidence required to substantiate an increased evaluation claim, how VA determines disability ratings and effective dates, and what evidence VA is responsible for obtaining. The Board acknowledges that the letter only indicated that VA was working on the Veteran's increased disability rating claim for obstructive sleep apnea but finds that notice for the Veteran's increased disability rating claim for bronchial asthma would have contained the same general information, as the notice does not need to be specifically tailored to the disability claimed. Vazquez-Flores, 580 F.3d at 1277-78. The Board also notes that the record contains medical records regarding the Veteran's bronchial asthma from 2009 through 2012, and that the Veteran has not alleged any prejudice from the notice error. Shinseki v. Sanders, 556 U.S. 396, 410-412 (2009) (holding that an error in VCAA notice should not be presumed prejudicial); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 106-107 (2010) (holding that VA does not have a burden to prove no prejudice from inadequate notice of evidence necessary to substantiate an increased disability rating claim unless no notice at all was provided). The Board therefore finds that the Veteran was not prejudiced by the failure to list bronchial asthma as a condition in the September 2009 VCAA notice letter and there is no bar to proceeding with a final decision at this time. VA also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. The RO associated the Veteran's service treatment records (STRs) and post-retirement treatment records from the General Leonard Wood Army Community Hospital (Army Hospital) and the VA medical center (VAMC) in Columbia, Missouri, with the claims file. The Veteran has not identified any treatment records aside from those that are already of record; therefore, the Board concludes VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty to provide a medical examination and obtain an opinion when required. VA provided the Veteran several medical examinations regarding the severity of his obstructive sleep apnea and bronchial asthma. The examinations are adequate, as the examination report shows that the examiner considered the relevant history of the Veteran's symptoms and provided a sufficiently detailed description of the disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds there is no further action needed to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim The Veteran contends he is entitled to a disability rating in excess of 50 percent for his obstructive sleep apnea with bronchial asthma; or, that he is entitled to a separate rating for his bronchial asthma in excess of 30 percent. The Board finds the Veteran not entitled to a disability rating in excess of 50 percent for his obstructive sleep apnea with bronchial asthma because his obstructive sleep apnea is the most prominent condition under 38 C.F.R. § 4.96(a), and it does not produce chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy to warrant a rating in excess of 50 percent. When deciding a case, the Board must consider all evidence on both sides of an issue, base its decision on the entire record, and state the reasons or bases for any findings and conclusions on material issues of fact and law. 38 U.S.C.A. §§ 1154(a), 5107(b), 7104(a) (2013); 38 C.F.R. §§ 3.303(a), 3.304(b)(2), 3.307(b) (2013); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board must focus on the evidence necessary to substantiate a claim and what the evidence fails to show, and, in doing so, explain why any material evidence favorable to the claimant was rejected or given little weight. 38 U.S.C.A. § 7104(d)(1); Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). But see Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (finding that the Board need not discuss every piece of evidence in the record). If VA determines that a preponderance of the evidence supports a claim, or if the claim is in relative equipoise, the claimant shall prevail. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, the claim will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Disability evaluations are governed by VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). The percentage ratings in the Rating Schedule represent the "average impairment in earning capacity" resulting from service-connected disabilities, and residuals thereof, in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). When assigning a disability evaluation, the Board must consider the potential application of any applicable regulation governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). During an evaluation, the symptomatology of a veteran's service-connected disability is compared with criteria set forth in the Rating Schedule and a percentage rating is assessed. 38 C.F.R., Part 4. If more than one percentage rating could apply, the higher one will be assigned if the disability picture more nearly approximates the required criteria for that rating. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. If, however, the multiple diagnostic codes each require "distinct and separate" symptomatology that does not duplicate or overlap with the symptomatology required in the other diagnostic codes, a veteran may be assessed multiple ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A veteran may also be assessed multiple ratings if multiple distinct degrees of disability occurred during the relevant period. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected respiratory disorders are rated under 6602-6847. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27 (2013). The Veteran's bronchial asthma may be evaluated under the rating schedule for the respiratory system as a disease of the trachea and bronchi. Under Diagnostic Code 6602 for bronchial asthma, the following ratings apply. 38 C.F.R. § 4.97, Diagnostic Code 6602. A 30 percent rating applies if there is a forced expiratory volume in one second (FEV-1) of 56 to 70 percent of predicted value; or, an FEV-1/forced vital capacity (FVC) ratio of 56 to 70 percent; or, daily inhalational or oral bronchodilator therapy; or, inhalational anti-inflammatory medication. A 60 percent rating applies if there is an FEV-1 of 40 to 55 percent of predicted value; or, an FEV-1/FVC of 40 to 55 percent; or, if there were at least monthly visits to a physician for required care of exacerbations; or, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating applies if there is an FEV-1 of less than 40 percent of the predicted value; or, an FEV-1/FVC of less than 40 percent; or, more than one attack per week with episodes of respiratory failure; or, if the veteran requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. The Veteran's obstructive sleep apnea may be evaluated under the rating schedule for the respiratory system as a restrictive lung disease. Under Diagnostic Code 6847 for sleep apnea syndromes (obstructive, central, mixed), the following ratings apply. 38 C.F.R. § 4.97, Diagnostic Code 6847. A 50 percent rating applies if the Veteran's obstructive sleep apnea requires the use of "a breathing assistance device such as [a] continuous airway pressure (CPAP) machine." A 100 percent rating applies if the Veteran has "[c]hronic respiratory failure with carbon dioxide retention or cor[]pulmonale"; or, if the Veteran's obstructive sleep apnea required a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. Under 38 C.F.R. § 4.96(a), when respiratory disabilities that are rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847 coexist, they "will not be combined with each other." Instead, the veteran will be assessed one rating for an overall respiratory disability using the diagnostic code for the disability that is most prominent. This single disability rating will only be "elevat[ed] to the next higher level [if] the overall disability warrants such elevation." 38 C.F.R. § 4.96(a). Initially, the Board notes that the Veteran has asserted he should receive a separate disability rating for his bronchial asthma that is in excess of 30 percent. Specifically, the Veteran stated in his May 2009 claim and reiterated in his April 2010 notice of disagreement (NOD) that he is seeking separate ratings and the next higher evaluation for asthma because 38 C.F.R. § 4.96 provides that asthma and sleep apnea will not be combined with each other. The Board acknowledges that the May 2012 VA examiner stated that bronchial asthma and obstructive sleep apnea are separate conditions, and that the examination report form itself required the examiner to fill out separate reports for the two conditions. The Board notes, however, that the express language in 38 C.F.R. 4.96(a) states that "[r]atings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other." The Board is bound by the express terms of 38 C.F.R. § 4.96(a); therefore, coexisting respiratory disorders, such as the Veteran's bronchial asthma, rated under Diagnostic Code 6602, and obstructive sleep apnea, rated under Diagnostic Code 6847, cannot be assigned separate ratings. To determine whether the bronchial asthma is now the most prominent disability, however, in this decision the Board will evaluate them separately before assigning a single disability rating. The pertinent record evidence includes a November 2009 VA examination; a September 2010 VA examination; the Veteran's April 2010 NOD; VAMC Columbia treatment records from November 2009 to July 2011; Army Hospital treatment records from December 2009 and March 2010; a February 2012 letter from a VAMC physician; and May 2012 VA examinations. The Board finds nothing in the record indicating that the current record evidence is not adequate for rating purposes. A November 2009 VA examination report regarding the severity of the Veteran's obstructive sleep apnea indicated that his obstructive sleep apnea was intermittent with remissions and that he had used a CPAP machine since 2006. The examiner was not asked to review the claims file or other medical records, but she did review "Remote Data" and information in VA's computerized patient record system (CPRS). There was no history of hospitalization, lung or chest trauma, respiratory system neoplasm, pulmonary embolism, respiratory failure, cough, fever, hemoptysis, night sweats, orthopnea, paroxysma nocturnal dyspnea, weight change, or non-angina chest pain. The Veteran reported having good and bad days, a history of shortness of breath on mild exertion, and peripheral swelling. His sleep-related problem was described as daytime hypersolmnolence, snoring, and sleep disruption. A physical examination showed the Veteran had no respiratory abnormalities, his heart sounds and chest expansion were normal, and there were no signs of a benign or malignant neoplasm or venous congestion. An x-ray was negative for infiltrate or effusion, with a few small calcified granulomas in the mid and lower lungs, and the Veteran's heart size was normal/upper limit normal but was in part accentuated by the depth of inspiration. Regarding employment, the examiner noted the Veteran had worked full-time as a security guard with a contracted security company for the prior 1-2 years and that during his military career he had worked as a truck driver. The Veteran reported having lost less than one week of work during the past 12 months due to back pain and clinic appointments. The examiner found the Veteran's obstructive sleep apnea had significant effects on his employment because he needed more rest periods and caused decreased concentration, inappropriate behavior, poor social interactions, decreased mobility, lack of stamina, and weakness or fatigue. Regarding his usual daily activities, the examiner found the Veteran's obstructive sleep apnea had a moderate impact on chores; a mild impact on shopping, exercise, sports, recreation, traveling, and feeding; and no impact on bathing, dressing, toileting, or grooming. In November 2009 VAMC treatment records, the Veteran complained of having the flu, but his lungs were clear to auscultation bilaterally, with no wheezing or crackles. He was taking an inhaled bronchodilator, albuterol, every four hours as needed for shortness of breath, montelukast, and loratadine, an anti-histamine, by mouth once a day as needed for allergies. It was also noted that compliance with CPAP had been encouraged. In December 2009 Army Hospital treatment records, the Veteran reported for an occupational pulmonary function test (PFT) but was unable to complete the PFT because he was unable to get reproducible results. It was noted that the Veteran had a history of asthma, that he denied having had a cold, the flu, or pneumonia during the prior three weeks, and that he had completed paperwork for a security guard position. A December 2009 VAMC PFT showed, pre-bronchodilator, an FEV-1 of 69 percent of predicted value and an FEV-1/FVC of 57 percent; and, post-bronchodilator, an FEV-1 of 84 percent of predicted value and an FEV-1/FVC of 61 percent. The PFT showed a 22 percent change, which the PFT report indicated showed a significant response to inhaled bronchodilators. The report further found the PFT showed normal inspiratory and expiratory pressures and a reduced FEV-1 and/or FEV-1/FVC ratio consistent with moderate obstructive defect, and that, compared to previous studies, there was no change in obstructive defect. In December 2009 Army Hospital treatment records, the Veteran again reported for a PFT. He indicated that he had been sick, but was feeling much better, and he requested to be allowed to try the spirometry, so he could get back to work. The Veteran had four good tests with two reproducibles, but the Veteran's numbers were low, showing an FEV-1 of 72 percent of predicted value and an FEV-1/FC of 111 percent, and he was instructed to call back when he was feeling 100 percent to repeat the PFT. In March 2010 VAMC treatment records, the Veteran reported that he had been recently treated for pneumonia and bronchitis, and that, after the pneumonia and bronchitis, he was not able to pass a PFT test done at the Army Hospital. The Veteran stated that he was told his PFT results were abnormal and that he was advised to follow-up with his primary care provider. The Veteran indicated he was only using Albuterol for shortness of breath and was prescribed fluticasone, an anti-inflammatory corticosteroid, as a nasal spray to be taken once a day to replace his montelukast prescription; an inhaled anti-inflammatory corticosteroid, mometasone, to be taken at bedtime; and his loratadine prescription, to be taken once a day as needed for allergies, was continued. A March 2010 Army Hospital PFT reported only pre-bronchodilator results and showed percentages only for the results of Trial 1. For Trial 1, the pre-bronchodilator FEV-1 result was 60 percent of predicted value and the FEV-1/FVC ratio was 62 percent. The interpretation indicated moderate obstruction. In his April 2010 NOD, the Veteran stated that he was taking fluticasone propionate nasal spray 50 mcg, albuterol sulfate inhalation aerosol 90 mcg, and an asmanex mometasone furoate twisthaler 220 mcg to control symptoms, and that he was using an inhaler daily. A September 2010 VA examination report regarding the Veteran's respiratory condition with sinusitis-rhinitis noted that the date of onset for his sinusitis-rhinitis was 2004 and that it had initially manifested after the Veteran had suffered some recurrent bouts of bronchitis, after which he developed persistent asthma assessed with allergies manifest as sinusitis/rhinitis. The examiner reviewed the claims file and medical records, including seven volumes of untabbed STRs, and diagnosed the Veteran with asthma, indicating that the Veteran's respiratory condition with sinusitis-rhinitis was a problem associated with the diagnosis. As treatment, the report indicated the Veteran used an inhaled bronchodilator and an inhaled anti-inflammatory daily, as well as Claritin and fluticasone to hold symptoms at bay. The Veteran's treatment response was good, there were no side effects, and any acute attacks had stopped. The VA examiner indicated that the Veteran did not use oral steroids, parenteral steroids, antibiotics, or any other immuno-suppressive treatment, and there was no history of respiratory system trauma or swelling; hospitalization or surgery due to respiratory problems; or hypertension, dizziness, syncope, angina, fatigue, or dyspnea. A physical examination revealed no evidence of abnormal breath sounds. The examiner found the December 2009 VAMC PFT revealed an obstructive condition, but noted the Veteran had taken his medication that morning, his diaphragm and chest expansion were normal, and there was no chest wall scarring or deformity of the chest wall, cor pulmonale, pulmonary hypertension, or right ventricular hypertrophy. Posterior lateral chest x-rays interpreted in January 2010 at the Army Hospital showed the lungs were symmetrically and adequately inflated; no airspace consolidation, mass, pneumothorax, or pleural effusion was present; the cardiomediastinal silhouette was within normal limits; and the osseous structures and overlying soft tissues were unremarkable. The interpretation found the x-ray showed no radiographic evidence of acute cardiopulmonary disease. A waters view sinus procedure, also interpreted in January 2010 at the Army Hospital, showed sinus films, minimal membrane thickening, no masses, no air fluid levels, and no bone destruction. The interpretation found the results showed a major abnormality for which no attention was needed. The examiner diagnosed the Veteran with atopic, or allergic, chronic sinusitis-rhinitis and found that there were no conditions that may be associated with pulmonary restrictive disease and that the Veteran's condition between asthma attacks showed moderate impairment. Regarding employment, the examiner noted the Veteran had been employed full-time for the past 2-5 years as a Department of Defense security guard and had lost one week of work during the prior 12 months due to appointments. The examiner found the Veteran's bronchial asthma affected his usual occupation because he had difficulty achieving high exertion levels, and his usual daily activities because it limited exercise and sports capacity. The examiner found the Veteran's atopic chronic sinusitis-rhinitis affected his usual occupation because he had difficulty breathing during flare-ups and it gave him headaches with sinus infections, and his usual daily activities for the same reasons, but also because it resulted in postponement of some chores, exercise, and sports. In September 2010 VAMC treatment records, the Veteran reported having an occasional wheeze, but that his asthma was overall well-controlled. A physical examination showed his lungs were clear to auscultation bilaterally, with no wheezing or crackles. A list of his medications included albuterol, as needed, fluticasone nasal spray, once a day, loratadine once a day as needed for allergies, and a mometasone inhaler, to be taken at bedtime. For his bronchial asthma/chronic obstructive pulmonary disease (COPD), he was prescribed asmanex, or mometasone, and albuterol. For his allergies, he prescribed fluticasone in place of montelukast. The examiner also noted he had encouraged compliance with former prescriptions. In November 2010, the Veteran was service connected for atopic chronic sinusitis and rhinitis, evaluated at 10 percent. The rating decision mentioned Claritin and fluticasone nasal spray as treatment and discussed the sinus water test x-rays that showed minimal mucous membrane thickening; no masses; and no detected air fluid levels. In July 2011 VAMC treatment records, the Veteran's lungs were again found clear to auscultation bilaterally, with no wheezing or crackles. A list of his medications included inhaled albuterol, to be taken three times a day as needed; inhaled mometasone, to be taken at bedtime; and a fluticasone nasal spray, to be taken once a day. The plan for his bronchial asthma involved taking the inhaled asmanex, or mometasone, and inhaled albuterol, and the plan for his allergies was to take the fluticasone nasal spray and Claritin. The Veteran's March 2012 substantive appeal included a February 2012 letter from his VA treating physician stating that the Veteran had a history of asthma, and used two different inhalers as treatment, including albuterol and mometasone. The physician also indicated the Veteran's December 2009 PFTs demonstrated moderate obstruction. A May 2012 VA examination report regarding the severity of his bronchial asthma showed the Veteran was diagnosed with asthma and continued to have shortness of breath at times, both with and without activity, and that he was on a daily controller steroid inhaler which was working quite well for him. The examiner reviewed VAMC records in the claims file and VA CPRS records. A January 2012 Army Hospital PFT showed an FEV-1 of 76 percent of predicted value and an FEV-1/FVC of 63 percent, and the examiner found it accurately reflected the Veteran's current pulmonary function and that the FEV-1 percent of predicted value result most accurately reflected the Veteran's level of disability due to his bronchial asthma. The examiner indicated the Veteran's respiratory condition did not require oral or parenteral corticosteroid medications, antibiotics, oxygen therapy, or oral bronchodilators, but that it did require inhaled medications; specifically, intermittent inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. The Veteran had not had any asthma attacks with episodes of respiratory failure in the prior 12 months and had required care for exacerbations less frequently than monthly, as there had been no exacerbations since the winter of 2010-11, and therefore no physician visits required for exacerbations since then and none in the prior 12 months. The examiner noted that no exercise capacity test or imaging studies had been performed and that there were no other significant diagnostic test findings and/or results. Regarding functional impact, the examiner indicated the Veteran's respiratory condition did not affect his ability to work. The examiner also noted that the Veteran had multiple respiratory conditions; that asthma was responsible for the limitation in pulmonary function, but that he also had sleep apnea. The examiner indicated that sleep apnea is a separate condition that did not affect this, and that because they are actually two separate and unrelated conditions, he had completed two separate examination reports. A May 2012 VA examination report regarding the severity of the Veteran's obstructive sleep apnea stated that in 2006 the Veteran had a sleep study just prior to retiring from the Marines due to problems breathing at night and daytime somnolence and he was diagnosed with obstructive sleep apnea. The examiner indicated that the Veteran's sleep apnea caused persistent daytime hypersomnolence and did not require continuous medication, but that the Veteran was using CPAP every night which helped depending on how well he could keep it on. There were no scars or any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his obstructive sleep apnea. Regarding functional impact, the examiner indicated the Veteran's obstructive sleep apnea did not affect his ability to work. A letter sent by the Veteran to VA in June 2012 indicated that he had temporarily lost his job due to federal cut-backs. Based on the criteria in Diagnostic Code 6602, the Board finds that, for purposes of determining whether bronchial asthma is the Veteran's most prominent disability under 38 C.F.R. § 4.96(a), the Veteran's bronchial asthma would not warrant a disability rating in excess of 30 percent. The record does not contain evidence that would warrant a rating higher than 30 percent, as there appears to be no evidence of PFT results showing either an FEV-1 of between 40 and 55 percent of predicted value or an FEV-1/FVC ratio of between 40 and 55 percent; monthly visits to a physician; or at least three courses of systemic corticosteroids per year. Instead, the PFTs in the record show FEV-1 results of between 60 and 84 percent of predicted value and FEV-1/FVC ratios of between 61 and 63 percent, as the Veteran had an FEV-1 of 84 percent of predicted value and an FEV-1/FVC of 61 percent in December 2009; an FEV-1 of 60 percent of predicted value and an FEV-1/FVC of 62 percent in March 2010; and an FEV-1 of 76 percent of predicted value and an FEV-1/FVC of 63 percent in January 2012. Other record evidence, to include VAMC and Army Hospital treatment records and various VA examination reports, does show the Veteran was using an inhaled bronchodilator in November 2009, and that he currently uses an inhaled bronchodilator, albuterol, and an inhaled anti-inflammatory corticosteroid, asmanex or mometasone, daily. Although mometasone is an inhaled anti-inflammatory corticosteroid, it is not an oral or parenteral systemic corticosteroid, as reflected in the September 2010 and May 2012 VA examination reports, both of which indicate the Veteran's bronchial asthma did not require the use of an oral or parenteral corticosteroid, but did require the daily use of an inhaled steroid anti-inflammatory. Similarly, while fluticasone is an anti-inflammatory corticosteroid taken as a nasal spray, it was not noted as a systemic oral or parenteral corticosteroid in the VA examination reports and, moreover, it was cited as treatment for the Veteran's sinusitis-rhinitis in the November 2010 rating decision and for the Veteran's allergies in several treatment records. Consequently, a disability rating in excess of 30 percent for bronchial asthma is not warranted at this time. 38 C.F.R. § 4.97, Diagnostic Code 6602. As the Veteran's bronchial asthma would not warrant a disability rating in excess of 30 percent, the Board concludes that his obstructive sleep apnea remains the most prominent disability. Further, based on the criteria in Diagnostic Code 6847, the Board finds that the Veteran's obstructive sleep apnea does not warrant a disability rating higher than 50 percent. The record shows that the Veteran has used a CPAP since 2006 which meets the criteria for the currently assigned 50 percent rating, but it does not, however, show that the Veteran has had chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that the Veteran's obstructive sleep apnea has required a tracheostomy. The Board therefore finds that the Veteran is not entitled to a disability rating in excess of 50 percent for his obstructive sleep apnea for his most prominent disability. 38 C.F.R. § 4.97, Diagnostic Code 6847. Finally, the Board has carefully reviewed and considered the Veteran's statements regarding the severity of his respiratory condition. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. After examining all the evidence, the Board finds that the currently assigned 50 percent rating for the Veteran's obstructive sleep apnea with bronchial asthma is appropriate, and concludes that the weight of the evidence is against assigning a rating in excess of 50 percent. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.97, Diagnostic Codes 6602, 6847. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Hart, 21 Vet. App. at 511-512. The Board also finds that the claim does not need to be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). In this regard, the Board must refer a claim if (1) a service-connected disability presents such an exceptional disability picture that the available schedular ratings do not reasonably describe or contemplate the severity and symptomatology of the disability, and (2) the disability picture exhibits other factors, such as marked interference with employment and frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). In this case, the Veteran's disability picture is not exceptional or unusual. The competent objective medical evidence of record reflects that the schedular criteria contemplate the manifestations of the Veteran's service-connected obstructive sleep apnea and bronchial asthma, and there is no indication that the average disability would be in excess of that contemplated by the assigned 50 percent disability rating. Further, the record does not show frequent hospitalizations or emergency room visits for the Veteran's service-connected obstructive sleep apnea or bronchial asthma and there is no evidence of incapacitating episodes. While the November 2009 VA examiner found the Veteran's obstructive sleep apnea significantly affected his employment, he also noted the Veteran had held full-time employment as a security guard for the prior 1-2 years and had not missed more than one week of work during the 12 months prior. The examiner also found the Veteran's obstructive sleep apnea had at worst only a moderate impact on his ability to do chores. The May 2012 VA examiner, however, found the Veteran's obstructive sleep apnea did not affect his ability to work at all. Regarding the Veteran's bronchial asthma, there is some evidence in the record that in December 2009 the Veteran had trouble getting reproducible PFT results he might have needed to return to work; however, there is a December 2009 PFT test in the VAMC records and the September 2010 VA examiner reported that the Veteran had been employed full-time as a security guard for the 2-5 years prior and had lost only one week of work during the prior 12 months due to appointments. The Board acknowledges that the September 2010 VA examiner did find the Veteran's bronchial asthma, assessed with sinusitis-rhinitis, affected his usual occupation because the Veteran had difficulty achieving high exertion levels and his daily activities because his exercise capacity was limited, but notes that the May 2012 VA examiner found the Veteran's bronchial asthma did not affect his ability to work. Further, the Board notes that the May 2012 VA examiner reported that the Veteran had not had asthma attacks or episodes of respiratory failure during the prior 12 months or any exacerbations since early 2011. Overall, the Board finds the record does not show marked interference with employment, as the Veteran continues to maintain employment as a security guard and there is no record that he ever missed more than one week of work in a year due solely to his obstructive sleep apnea and bronchial asthma. While the Veteran indicated in a letter that he was temporarily out-of-work, the Board notes that it was temporary and that the Veteran indicated it was due to the federal sequester. Accordingly, the referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea and bronchial asthma is denied. REMAND The Board remands the Veteran's claim seeking an increased rating in excess of 10 percent for bilateral plantar fasciitis for additional development and because the Veteran submitted additional pertinent evidence to the Board and the record does not contain a waiver of the right to have the agency of original jurisdiction (AOJ) review it in the first instance. If a Veteran submits additional pertinent evidence to the Board without providing a written waiver, or an oral waiver during a hearing, of the right to have the agency of AOJ-here, the RO-review the evidence, the Board must refer the evidence back to the AOJ unless the Board fully grants the benefit or benefits sought on appeal. 38 C.F.R. § 20.1304(c) (2013); Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (holding that 38 U.S.C.A. § 7104(a) (2013) requires that the Board cannot consider additional evidence in the first instance without obtaining a wavier because claimants get "one review on appeal to the Secretary") The Veteran's appeal was certified to the Board in August 2012, and the appellate record was received by the Board in September 2012. On October 22, 2012, the Board received evidence that the Veteran had a VA podiatry consultation on October 12, 2012, that indicated he was referred to prosthetics for ED boots and semi-rigid orthosis and that he was to return to see the VA podiatrist in three months. This evidence is pertinent to the Veteran's appeal because it indicates that his treatment has changed, as there is no prior mention in the record that the Veteran's bilateral plantar fasciitis required more than special insoles. The Board notes that the Veteran's last VA examination took place in 2012, and the evidence suggests that the Veteran's condition may have worsened or further changed upon subsequent appointments with the VA podiatrist. More contemporaneous medical findings are needed to evaluate the present nature and severity of the Veteran's bilateral plantar fasciitis on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO should therefore also provide the Veteran with a new VA examination considering the current severity of the Veteran's bilateral plantar fasciitis. Additionally, current treatment records should be obtained before a decision is rendered in this case. Accordingly, the case is REMANDED for the following action: 1. First, undertake appropriate development to obtain any outstanding, pertinent medical records to include from VA and the General Leonard Wood Army Community Hospital. 2. Then, provide the Veteran with a VA examination, by an examiner with sufficient expertise, to determine the current severity of his bilateral plantar fasciitis. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA that is not already in the claims file. The examiner should review the claims file and perform all indicated studies. The RO or AMC should ensure that the VA examiner provides all information necessary for rating purposes. 3. The RO or AMC should undertake any additional development it deems warranted. 4. Then, the RO or AMC should readjudicate the issue of entitlement to a disability rating in excess of 10 percent for the Veteran's bilateral plantar fasciitis. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and the appropriate opportunity to respond to the SSOC. If necessary, the case should then be returned to the Board for further appellate consideration. The appellant 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. 2013). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs