Citation Nr: 1619090 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 07-32 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disability. 2. Entitlement to an initial, compensable rating for sinusitis prior to August 14, 2012, and in excess of 10 percent from August 14, 2012. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. E. Wilkerson INTRODUCTION The Veteran served on active duty from June 1966 to June 1969. These matters initially came before the Board of Veterans' Appeals (Board) on appeal of November 2005, September 2007, and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the November 2005 rating decision, the RO denied service connection for bilateral hearing loss. In the September 2007 rating decision, the RO granted service connection for sinusitis and assigned an initial noncompensable rating, effective the date of claim, June 30, 2004. Further, the RO denied service connection for lipomas and sleep apnea in the August 2009 rating decision. In June 2007, the Veteran presented testimony during a hearing before a Decision Review Officer (DRO) at the RO. In June 2011, the Veteran testified during a Board hearing at the RO before the undersigned Veterans Law Judge. Transcripts of both hearing are associated with the electronic claims file. In July 2012, the Board remanded these issues to the Agency of Original Jurisdiction (AOJ) for further development. By rating decision in July 2013, the RO increased the sinusitis disability rating to 10 percent, effective August 14, 2012. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue therefore remains in appellate status and has been characterized as set forth on the front page of this decision In September 2015, the Board issued a decision granting a 30 percent initial rating for sinusitis as well as the claim for service connection for lipomas, and denying the claim for service connection for left ear hearing loss. The Board also remanded the issues of entitlement to service connection for right ear hearing loss and sleep apnea to the AOJ for additional development. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In March 2016, the parties filed a Joint Motion for Remand partially vacating the Board's September 2015 decision to the extent that it granted entitlement to an initial 30 percent rating, but no higher, for sinusitis, from June 30, 2004, the date of award of service-connection and that determined that a claim for a TDIU had not been raised by the record and remanded the matters for readjudication in light of the Joint Motion for Remand. The Board notes that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of points raised in the Joint Motion for Remand and the Veteran's continued report that he is unemployed, at least in part, due to his service-connected sinusitis, the Board will address this claim. In March 2016, the Appeals Management Center issued a rating decision granting service connection for right ear hearing loss, representing a full grant of this matter previously on appeal. Accordingly, this matter is no longer before the Board. The remaining claim of entitlement to service connection for sleep apnea has since returned to the Board for the purpose of appellate disposition. This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Obstructive sleep apnea is proximately due to or the result of the Veteran's service-connected sinusitis and allergic rhinitis. 2. From the date of award of service connection, June 30, 2004, the Veteran's sinusitis has more nearly approximated more than six non-incapacitating episodes per year, but has not been productive of chronic osteomyelitis, or required repeated surgeries. CONCLUSIONS OF LAW 1. Obstructive sleep apnea is due to or a result of a service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.310 (2015). 2. Effective June 30, 2004, the criteria for entitlement to a 30 percent rating, but no higher, for sinusitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code 6512 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Given the favorable disposition of the claim for service connection for sleep apnea, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. With respect to the remaining claim herein decided, under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim for increased initial rating for sinusitis, the Courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a Notice of Disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to this claim is unnecessary. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. In this case, VA obtained the Veteran's service treatment records and all of the identified post-service VA and private treatment records. Additionally, the Veteran was afforded VA examinations in July 2007, June 2010 and August 2012 to evaluate the severity of his service-connected sinusitis. The Board finds that the August 2012 VA examination is adequate because, as discussed below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it provides 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)). The Veteran also presented testimony at a Board hearing in June 2011. During the hearing, the Veterans Law Judge clarified the issue and explained the basis for rating disabilities. His functional impairment and manifestations were addressed. The Veteran was provided an opportunity to submit additional evidence. The actions of the Veterans Law Judge supplement VCAA and comply with any duties owed during a hearing. 38 C.F.R. § 3.103. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection The Veteran contends that he is entitled to service connection for obstructive sleep apnea, as he believes that the disability had its origin in service, or, in the alternative, is due to or aggravated by a service-connected disability. As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disability for which he claims entitlement to service connection is the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2014) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a), and not the disability on appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C.A. § 1101. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). The Veteran's service treatment records reflect no complaint, finding, or diagnosis of obstructive sleep apnea. Service treatment records do indicate treatment for upper respiratory infection, including in September 1967 and February 1969, as well as treatment for swollen, infected tonsils in November and December 1968 and pharyngitis in May 1969. The Veteran's May 1969 discharge examination was normal with respect to sleep apnea or any related condition. A history of recurrent upper respiratory infection and pharynx complaints was noted on report of medical history at discharge, but the Veteran denied frequent trouble sleeping. Following discharge from service, an April 1994 progress note from private physician Dr. J. indicates a history of sinusitis and post nasal drainage. It was noted that the Veteran could only sleep while sitting upright. The exact reason was not clear, and the examiner indicated that the condition might possibly be related to reflux esophagitis. The Veteran was to be treated for post nasal drainage and his progress monitored. A September 1998 medical report from Dr. J. notes that the Veteran had problems breathing in his sleep and had undergone a sleep study. It was noted that he had previously undergone a tonsillectomy in 1971. A history of orthopnea, and suspicious of reflux esophagitis was indicated. An October 2005 sleep study report from the Jackson Sleep Disorders Center indicates a diagnosis of mild obstructive sleep apnea. A trial of use of a C-PAP was recommended. On VA examination in July 2007, the Veteran reported that he sometimes could not sleep because of postnasal drainage. He also reported diagnosis of sleep apnea. He did not use a C-PAP as he could not afford one at the time. A September 2010 report from Dr. L. of the East Alabama Medical Center reflects that the Veteran discussed obtaining an opinion to connect his sleep apnea to his time in the military. The Veteran indicated that he was in the military from 1966 to 1969, and when he got out in 1970 or 1971 he was married and his wife said that he snored and had apnea at that point. In 1994, he became concerned of sleep apnea, and had a 1995 polysomnogram at Baptist Medical Center in Montgomery, when he was diagnosed. It was unclear whether he did anything about this. Again in 2004 he was sent back for a follow up study at Jackson and told that he had sleep apnea. He had been to VA and they have advised him to try to get a letter from his physician stating that this is likely a service related medical problem. Dr. L. indicated that he explained to the Veteran that unless it was documented in his service record, there is no way to do that otherwise, but he could assist him within the bounds of reason. A January 2011 VA otolaryngology consultation reflects that the Veteran was to be started with use of a C-PAP. The treatment provider noted that, if the Veteran did not tolerate the C-PAP, he probably had sleep apnea from multiple levels of destruction. The provider noted that he could first work on his nose, such as a septoplasty and turbinoplasty, and the cyst on the inside of his nose could be addressed at that same time. Also they could address his uvula with a UP3 and to do this not only for sleep apnea but the choking cessation if he desired. The examiner felt that the Veteran's tongue base could also be addressed, but he likely had significant obstruction in his hypopharynx and this would not cure it completely. During the Veteran's June 2011 Board hearing, the Veteran testified that his wife first noted that the Veteran stopped breathing in his sleep shortly after he got out of service. He indicated that he underwent a sleep study in approximately 1994, after she passed away, and was told that he had sleep apnea. He underwent a second sleep study in the 2000s, but again did not seek treatment afterwards. He indicated that he had recently been prescribed use of a C-PAP. In a June 2011 statement, the Veteran's treating private physician, Dr. J. wrote that the Veteran had sinusitis and sleep apnea, and had previously undergone a tonsillectomy in 1970. He expressed his opinion that it is very clear that sleep apnea can be made worse by enlarged tonsils and sinusitis. He noted that, in fact, tonsillectomies in children now are curing sleep apnea in patients, including children. He expressed his belief that that recurrent allergies and enlarged tonsils contributed to sleep apnea, including sinusitis, that drain on the tonsils. They kept them inflamed and swollen. He continued that, as result of this conclusion, one could easily conclude that the Veteran's sleep apnea is longstanding and is related to a multitude of factors all of which that contribute to obstruction of his posterior airways. Therefore, he concluded that the sleep apnea is related to his tonsillitis as well as his chronic sinusitis and chronic allergic condition. On VA examination in August 2012, the Veteran reported problems with snoring in the 1970s. He underwent sleep study evaluation in 1995. He underwent another sleep study in 2005, but denied any treatment. In 2010, he was seen again by Dr. J. and referred to East Alabama Medical Center, where another sleep study was performed with C-PAP titration study. He reported that a C-PAP was prescribed at that time. The examiner diagnosed obstructive sleep apnea and noted a date of diagnosis in 2005. After review of the claims file and examination, the examiner opined that the claimed sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that obstructive sleep apnea was caused by relaxation of muscles in the posterior pharynx. He noted that he was unable to create a link between the Veteran's previous pharyngitis/tonsillitis and his obstructive sleep apnea, first diagnosed in 1995, per his self-report. The examiner further noted that there was no evidence that the Veteran was evaluated, diagnosed, or treated for obstructive sleep apnea while on active duty. In addition, the examiner opined that the Veteran's sleep apnea was less likely as not caused or aggravated by any service-connected condition, to include sinusitis and/or allergic rhinitis. He found no medical evidence that supported the Veteran's claim of obstructive sleep apnea as being secondary to or aggravated by his service-connected sinusitis/allergic rhinitis. In a January 2016 VA medical opinion report, the reviewing VA physician indicated that he reviewed the entire electronic claims file, including the Veteran's lay statements and hearing testimony. He noted the Veteran's relevant medical history as well as the June 2011 statement from Dr. J. In addition, the examiner noted the risk factors for obstructive sleep apnea, including being male, overweight, over age 40, having large tonsils, and nasal obstruction due to a deviated septum, allergies, or sinus problems. After this review, the VA physician opined that it is less likely than not that the Veteran's sleep apnea is solely due to or caused by the Veteran's service-connected sinusitis and allergic rhinitis. He noted that the Veteran had significant, multiple risk factors for obstructive sleep apnea in addition to the service-connected allergies and sinusitis, including his age, an ENT specialist documented large tongue base/hypopharynx and enlarged uvula, gastroesophageal reflux disease and that he is male. He further indicated that there was no established evidence-based nexus between a diagnosis of tinnitus and the development of obstructive sleep apnea. The reviewing physician also opined that the claimed obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the physician noted that recurrent, nonspecific upper respiratory infections were not a recognized risk factor for the development of obstructive sleep apnea. While enlarged tonsillar tissues due to chronic/recurrent tonsillitis had been considered a risk factor for the development of obstructive sleep apnea, the Veteran reportedly underwent a tonsillectomy in 1970, but was not diagnosed with obstructive sleep apnea until 2005. He opined that tonsillar hypertrophy no longer became a risk factor over that 35 year time span. No other in-service risk factors were found. In an addendum opinion dated in March 2016, the reviewing VA physician opined that it is not as least as likely as not that the Veteran's obstructive sleep apnea had been aggravated beyond the baseline symptomatology by the service-connected tinnitus, sinusitis, and allergic rhinitis. The physician indicated that the baseline level of severity was mild obstructive sleep apnea, and that there was no noted increased in severity of obstructive sleep apnea, as it is not addressed in recent years in VA treatment records, nor is the use of a C-PAP. The physician indicated that he conducted a telephone interview with the Veteran. He reported that the Veteran was using a full face mask C-PAP compliantly and effectively until he began to have nighttime choking spells in 2015. He reported that the choking was not caused by GERD, because he was familiar with GERD symptoms. VA treatment providers advised him to discontinue use of the C-PAP until a choking evaluation had been completed. He noted that sleep apnea symptoms had returned. The physician continued to opine that there was no recent objective documentation of aggravation of the Veteran's obstructive sleep apnea beyond its natural progression by sinusitis or rhinitis. The prior use of a C-PAP full face mask typically mitigated sinus/rhinitis congestion, so his appropriately-treated obstructive sleep apnea would not likely have been aggravated by sinusitis/rhinitis. Although discontinuation of a -CPAP was medically-advised, the obstructive sleep apnea aggravation was literally due to lack of use of C-PAP (lack of compliance) rather than sinusitis/rhinitis. In this case, the Veteran's private treating physician, opined that the Veteran's obstructive sleep apnea was related to his chronic sinusitis and chronic allergic condition, disabilities for which the Veteran is service-connected. The opinion is supported by medical rationale and treatment records disclose that that the Veteran had been treated by Dr. J. for a number of years. In contrast, the August 2012 VA examiner failed to provide any rationale for his conclusion that the Veteran's obstructive sleep apnea was not due to or caused by his service-connected disabilities. While in the Board attempted to obtain a medical opinion thoroughly addressing the matter of entitlement to service connection on a secondary basis, the January 2016/March 2016 opinion fails to do so. The January 2016 reviewing physician found it less like than not that the Veteran's obstructive sleep apnea is secondary to his service-connected sinusitis and/or allergic rhinitis and his rationale was that the disability was not solely due to or caused by the Veteran's service-connected sinusitis and allergic rhinitis, given the Veteran's other risk factors. However, this opinion does not rule out sinusitis or allergic rhinitis or sinusitis as at least a causal factor in the development of obstructive sleep apnea. The Board further emphasizes that 38 C.F.R. § 3.310 does not require that the service-connected disability be the sole cause of the claimed disability in order for service connection to be warranted. Accordingly, in resolving all reasonable doubt in the Veteran's favor, the Board finds that the records supports the conclusion that the Veteran's obstructive sleep apnea is caused by or proximately due to his service-connected sinusitis and allergic rhinitis and that service connection is warranted for this disability. III. Increased Rating The Veteran is seeking an initial higher rating for sinusitis. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. The Veteran's sinusitis has been evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6512. Under this code, a 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A maximum 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. The Veteran filed his claim for service connection in June 2004. Private treatment records prior to this date shows ongoing treatment for sinus problems. In support of his claim, he submitted a June 2005 statement from his private physician, which noted complaints of sinus congestion, but did not provide any further details. At the RO hearing, the Veteran testified that he had sinusitis and was currently on Zyrtec, but he still had flare-ups. He also reported headaches associated with his sinusitis. The Veteran was first afforded a VA examination in June 2007. The claims file was reviewed. The Veteran reported chronic sinus problems. The Veteran used Zyrtec daily as well as an inhaler as needed. He reported postnasal drainage at night, trouble breathing through his nostrils and headaches. He also indicated that he had sinus infections. On physical examination, there was mild tenderness over the maxillary sinuses. The examiner opined that the Veteran's sinusitis was related to his military service. Unfortunately, the examiner did not discuss the number of incapacitating or non-incapacitating episodes per year as the examination was primarily for service connection purposes. Private treatment records showed that, in June 2008, the Veteran presented with sinus problems which began several months prior. Symptoms of cough with yellow phlegm, nasal congestion with clear drainage and sneezing were observed. The assessment was acute sinusitis and Avelox and Singulair were prescribed. A follow up January 2009 record shows a follow up for acute sinusitis. The Veteran was still on the same medications. The assessment was acute sinusitis, stable. The Veteran was hospitalized in January 2009 for asthmatic bronchitis with a secondary diagnosis of sinusitis. It was noted that the Veteran had a headache and facial discomfort. It was felt that significant frontal sinusitis was attributing to the symptoms. In a March 2010 private opinion, the Veteran's private physician noted that the Veteran was previously on daily prescription Zyrtec, but was now on the same over the counter medication Zyrtec. The Veteran reported daily problems. The examiner indicated that the Veteran had non-incapacitating episodes, but he had daily sinus drainage, headaches, pain and purulent discharge. The examiner further noted that his records showed that the Veteran had these problems for many years. The examiner concluded that the Veteran's sinus problems appeared to be incapacitating since he required daily medications, had had intermittent problems and was hospitalized for pneumonia in 2009, which was interrelated. The first VA examination provided to assess the severity of the Veteran's sinusitis was in June 2010. The examiner clearly noted that there was no history of osteomyelitis. The examiner observed a history of incapacitating episodes, but then indicated that none required 4 to 6 weeks of antibiotic treatment. The examiner did note non-incapacitating episodes, which were near constant. The symptoms included fever, purulent drainage and sinus pain. The duration was less than 14 days. Current sinus symptoms were purulent nasal discharge, headaches, sinus pain, sinus tenderness and fever. The headaches were daily and breathing difficulty was constant. On physical examination, there was tenderness over the maxillary sinus, but no evidence of active disease. A contemporaneous x-ray showed an impression of no acute sinusitis, but minimal mucosal thickening right maxillary sinus; chronic sinusitis. The diagnosis was sinusitis. A follow up January 2011 VA treatment record showed that the Veteran presented with complaints of sinusitis. He reported having to be on antibiotics 5 to 6 times per year. He reported facial pain and nasal congestion. He was taking Zyrtec and nasal spray. On physical examination, he had inflamed mucosa and crustitis. A round of antibiotics and a nasal steroid were prescribed. In July 2011, the Veteran was treated for an acute sinus infection. An August 2011 VA otolaryngology note indicated that he continued to have some slight drainage, but he was overall better. An August 2011 CT scan showed no evidence of sinus disease. On VA treatment in September 2011, the Veteran reported infection 2 to 3 times per year that required multiple rounds of antibiotics and steroids to resolve. With sinus infection, he experienced symptoms of headache, ear congestion, facial pain, pain under his chin, and yellow nasal discharge. He also reported persistent itchy, watery eyes, runny nose, and post nasal drip. On VA treatment in February 2012, the Veteran reported that he had recently completed a course of antibiotic for sinusitis. He continued to complain of nasal congestion, cough, post nasal drip, and headache. In May 2012, the Veteran presented for follow-up treatment. He was on a regimen of Flonase, Zyrtec, and saline nasal rinse at night. He stated that it was the first year that he had not been sick during this time of year in a long time. He reported no antibiotic use since he was last treated for sinusitis in January 2012. He stated that nasal congestion, cough, and headache had all improved. He still had some post nasal drip if he slept on his back at night, but felt that he did not have much during the day. On remand, the Veteran was afforded another VA examination in August 2012. The claims file was reviewed. The Veteran was currently on Zyrtec, Nasacort spray and Ocean spray. He reported being treated intermittently with antibiotics for sinus infections. He denied any surgeries for sinuses. The Veteran reported headaches, pain and purulent discharge. In this regard, he reported frontal headaches two to three times per week and intermittent tenderness to the maxillary sinuses. He also reported post nasal drip, cough, and headaches. The Veteran indicated that his symptoms were continuous. With an acute episode, he also had ear pain, fever and intermittent discolored drainage in addition to the above symptoms. The examiner did note that there was no recent antibiotic prescription in the VA treatment records. The examiner found that the Veteran had at least 4 non-incapacitating episodes over the past 12 months, but no incapacitating episodes. He had never had sinus surgery. A CT scan showed no evidence of sinusitis, but an X-ray report showed chronic sinusitis in both maxillary antra. The examiner found that the Veteran's sinusitis did not impact his ability to work. He concluded that the Veteran reported continuous problems on a daily basis with the above symptoms. A follow up April 2013 VA treatment record again showed that the Veteran was seen for recurrent sinusitis. He continued to have sinus infections about every 3 months requiring antibiotics. He was currently on amoxicillin for an infection. He felt that his symptoms had not completely cleared. He reported occasional dizziness and ear fullness. He also had drainage and paranasal discomfort. An additional two weeks of amoxicillin was prescribed. An August 2014 VA otolaryngology note indicates that the Veteran was seen for chronic non-allergic rhinitis and recurrent sinusitis. He had a CT scan done in May 2013 which showed no paranasal sinus disease. He was maintained on budesonide irrigations, Singulair, Flonase, Zyrtec and Atrovent nasal spray. He stated that he was still having post nasal drip. The drainage was a clear thin liquid that ran freely, especially when he ate. His only symptom was thin, watery rhinitis, but he felt that his sinuses caused him to develop other infections and symptomatology. He stated that he occasionally had earache with otorrhea and occasional tenderness in the right ear canal. An assessment of rhinosinusitis and vasomotor sinusitis was noted. He was to continue with present medical regimen, with an additional course of prednisone for a few weeks to try to stabilize the sinuses. A February 2015 VA treatment note indicates that the Veteran presented with a 3 week history of sinus congestion and sore throat. He was assessed with an upper respiratory infection. Continued treatment records from private physician Dr. J. dated through 2016 document treatment of exacerbations of sinusitis. In statements of record and at the Board hearing, the Veteran reported that he experienced daily symptoms as well as the need to use medication daily. Even with medication, he continued to suffer from symptoms, including frequent drainage, pain and headaches. He has further indicated that he was put on antibiotics and steroids two to three times per year. He reported being hospitalized for pneumonia in 2009. He also reported that when he was still working, he had to take sick leave often from the Post Office due to his sinus condition. Based on the medical evidence of record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 30 percent rating is warranted under the general ratings formula for sinusitis. While the most recent VA examination documented that the Veteran only suffered from four non-incapacitating and no incapacitating episodes, the Veteran has reported near constant non-incapacitating episodes that included headaches, purulent drainage and sinus pain. Moreover, importantly, VA and private treatment record document continuing treatment for recurrent sinusitis that included these symptoms, throughout the course of the appeal. Further, the March 2010 private opinion and June 2010 VA examination also document near constant sinus symptoms. Therefore, the Board finds that the Veteran's sinusitis more nearly approximates a 30 percent disability rating. Based on the clinical treatment records and the Veteran's competent statements, the Board also finds that the Veteran's sinusitis has been consistent throughout the course of the appeal and a 30 percent rating is warranted for the entire appeal period. See Hart, supra. However, based on the evidence of record, a higher 50 percent rating is not warranted under the general ratings formula. Again, a 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The VA examinations did not show chronic osteomyelitis. Moreover, the evidence of record clearly shows that the Veteran has not had repeated surgeries for his sinusitis. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his sinusitis. 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. Again, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Notably, the Board's award of a 30 percent rating is based, in part, on his description of the frequency, duration and severity of symptoms. With respect to his entitlement to a higher rating still, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are 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. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptomatology associated with the Veteran's disability is fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The evidence of record certainly shows that the Veteran's disability has impacted his ability to work. However, the level of interference shown is contemplated by the disability evaluation already assigned to the Veteran's disorder. Therefore, referral for consideration of an extraschedular rating for the disability on appeal is not warranted. 38 C.F.R. § 3.321(b)(1). Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities in concluding that referral for consideration of an extraschedular rating is not warranted. Here, the Veteran already has a 40 percent evaluation for his service-connected disabilities. This evaluation fully contemplates the combined impact and referral for extraschedular consideration is not warranted. In conclusion, an initial 30 percent rating, but no higher, is warranted for the Veteran's service-connected maxillary sinusitis from the date of award of service connection, June 30, 2004. The Board, however, finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 30 percent for the appeal period. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER Service connection for obstructive sleep apnea, as secondary to service-connected disability, is granted. An initial 30 percent rating for sinusitis is granted, subject to the controlling regulations applicable to the payment of monetary benefits. REMAND As indicated above, the Veteran has indicated that he is unable to work due to his various service-connected disabilities. Review of the claims reveals that the Veteran has recently filed a claim for service connection for posttraumatic stress disorder (PTSD) and that the AOJ is developing this claim. In addition, given the Board's decision granting service connection for obstructive sleep apnea, the AOJ must issue a rating decision promulgating the decision and assigning a rating for the disability under the applicable rating criteria. Given the foregoing, we find that the issues of entitlement to service connection for PTSD and assignment of a rating for obstructive sleep apnea are intertwined with the issue of entitlement to a TDIU inasmuch as a grant of service connection for a PTSD and assignment of a disability rating could affect the outcome of this claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Further consideration of the claim for entitlement to service connection for TDIU must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's VA treatment since March 2016. 2. After promulgation of the Board's decision with respect to the claim for service connection for obstructive sleep apnea, and adjudication of the claim of entitlement to service connection for PTSD-and any other development deemed warranted-the AOJ should readjudicate the intertwined claim of entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ____________________________________________ T. Mainelli Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs