Citation Nr: 1242776 Decision Date: 12/14/12 Archive Date: 12/20/12 DOCKET NO. 10-08 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. 3. Entitlement to service connection for a sleep disorder, to include as secondary to sinusitis and a psychiatric disorder. 4. Entitlement to an increased rating for sinusitis, currently rated 10 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. These matters come before the Board of Veterans' Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2009, the RO denied the Veteran's application to reopen his claim for service connection for PTSD, and denied service connection for a sleep disorder and depression. In December 2011, the RO denied an increased rating for sinusitis, rated 10 percent disabling, and denied service connection for bipolar disorder, also continuing the denial for service connection for depression. The Board has combined these issues to a single claim and characterized the issue more broadly, for the reasons stated below. The RO also denied the Veteran's claim for a TDIU. The Veteran was previously represented by a veterans service organization but revoked this representation in September 2009. He is therefore considered unrepresented on this appeal. In an August 2010 statement in support of claim (VA Form 21-4138), the Veteran claimed that there was clear and unmistakable error (CUE) in the RO's December 8, 2000 rating decision. The Board's review of the claims file reflects that this was the date of a supplemental statement of the case (SSOC) in which the RO continued its June 2000 denial of service connection for PTSD. In any event, the Board denied the claim for service connection for PTSD in October 2005, and this decision subsumed the RO's June 2000 decision. An RO decision is subsumed by a Board decision addressing the same issue. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000); 38 C.F.R. § 20.1104 (2012) (RO decision affirmed by the Board is subsumed by the Board's decision). To the extent that the Veteran raises an issue of CUE in the Board's October 2005 decision or a prior RO decision on this issue that was not subsumed, the matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The Veteran wrote in a December 2009 letter that he was never notified of the July 1971 decision granting service connection for sinusitis with headaches. The Board notes that there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (presumption of regularity applies to RO's mailing of a VA decision to a veteran). There is also a July 1971 document entitled Control Document and Award Letter in the claims file, indicating that there was notification of the rating action. In addition, the Board notes that there have been subsequent denials of increased rating claims that were not appealed. See Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008) ("a subsequent final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim"). In any event, as the issue of whether the Veteran was properly notified of the July 1971 RO decision is not before the Board, it is referred to the AOJ for appropriate action. The claims for service connection for an acquired psychiatric disorder other than PTSD, for service connection for a sleep disorder, to include as secondary to sinusitis and a psychiatric disorder, and for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an October 2005 decision, the Board denied service connection for PTSD. 2. Evidence received since the October 2005 Board decision is cumulative of the evidence that was of record at the time of that decision and does not relate to the basis for the prior denial. 3. Symptoms of the Veteran's sinusitis have not more nearly approximated incapacitating episodes or non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting, and there were no polyps or obstruction during the appeal period. CONCLUSIONS OF LAW 1. The October 2005 Board decision that denied service connection for PTSD is final. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 20.1100(a), 20.1104 (2012). 2. Evidence received since the October 2005 Board decision is not new and material and the claim for service connection for PTSD is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for a rating higher than 10 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.97, Diagnostic Codes (DCs) 6513, 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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 2002 & Supp. 2012)) redefined VA's duty to assist claimants in the development of their claims. 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) (2012). 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 United States Court of Appeals for Veterans Claims (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). In addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of an application to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Id. at 11-12. Further, VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. With regard to the application to reopen the claim for service connection for PTSD, the RO sent a May 2008 letter that informed the Veteran of the prior denials of his claims, including the most recent denial by the Board in October 2005. The letter correctly indicated that the Veteran's claim was previously denied because of the lack of a diagnosis of PTSD. The Veteran was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate an underlying service connection claim, including the current disability element, which was the basis for the prior denial and is the basis for the Board's denial of reopening herein. Therefore, the May 2008 letter provided the notice required by the Kent decision. As to the claim for an increased rating for sinusitis, in January 2009, March 2009, and September 2009 letters, along with the May 2008 letter, the RO satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the May 2008 and September 2009 letters complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the May 2008 and September 2009 letters. None of the above letters specifically addressed the claim for an increased rating for sinusitis by informing the Veteran that he had to show that this disability had worsened in order to establish entitlement to an increased rating. However, the May 2008 and September 2009 letters explained how the RO determines the appropriate disability rating and the September 2009 letter indicated that the RO would consider the impact of the decision on employment and daily life as well as specific test or measurement results, thus complying with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). To the extent that the Veteran was not provided with information specifically with regard to the claim for an increased rating for sinusitis, this notice defect was not prejudicial, as, given the multiple VCAA letters, a reasonable person could be expected to understand from the notice what was needed. Goodwin v. Peake, 22 Vet. App. 128, 133-34 (2008); see also Mlechick v. Mansfield, 503 F.3d 1340, 1344 (Fed. Cir. 2007) (section 5103(a) notice error not prejudicial when a reasonable person could be expected to understand what was needed). Contrary to VCAA requirements, most of the VCAA-compliant notice in this case was provided after the initial adjudication of the claims. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claims in a May 2012 SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. The Veteran has been found disabled by the Social Security Administration (SSA), and the RO requested the records relating to the SSA's disability determination. The SSA indicated in a March 2012 communication that they could not send the requested records because the records did not exist and further efforts to obtain them would be futile, as they had been destroyed. The RO was therefore not required to take additional action in compliance with its duty to assist in this regard. 38 C.F.R. § 3.159(c)(2) (VA will end efforts to obtain Federal records where custodian indicates the records do not exist). The RO also found in April 2009 that information required to corroborate the stressful events claimed by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) or to allow a meaningful search of other sources. In any event, the Board is denying the application to reopen because there is no new evidence relating to a diagnosis of PTSD. Any error with regard to obtaining information relating to claimed stressors is therefore non-prejudicial. The Veteran was also afforded July 2009 and September 2011 VA examinations that addressed the severity of his sinusitis. Although the Veteran claimed in his December 2011 NOD that the September 2011 VA examination was inadequate, he did not specify the basis of this inadequacy. As shown by the discussion below, the July 2009 and September 2011 VA examinations were adequate because they were based on consideration of the Veteran's prior medical history and described the disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran was not afforded a VA examination specifically with regard to his PTSD. Such examination was not required because, as shown below, new and material evidence has not been received to reopen the claim for service connection for PTSD, and the duty to assist a claimant by affording him a medical examination or medical opinion does not arise until the claimant has submitted new and material evidence sufficient to reopen the claim. Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003); Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007) (in the absence of new and material evidence, VA is not required to provide a medical examination or obtain a medical opinion to a claimant attempting to reopen a previously disallowed claim). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims being decided herein are thus ready to be considered on the merits. Analysis Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In order to warrant service connection for PTSD there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2010); see also Cohen v. Brown, 10 Vet. App 128 (1997) (holding that in making a PTSD diagnosis, mental health professionals 'are presumed to know the DSM-IV requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis). In October 2005, the Board denied the Veteran's claim for service connection for PTSD. As the Veteran did not seek, and the Chairman did not order, reconsideration, the Board's October 2005 decision was final. See 38 U.S.C.A. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). The Board's denial was based on a finding that the preponderance of the evidence indicated that there was no valid diagnosis of PTSD. The Board noted that, while PTSD was initially diagnosed in December 1998, when the same examiner evaluated the veteran more recently in November 2002, he could find no evidence to support a current diagnosis of post traumatic stress disorder. The evidence before the Board included the December 1998 VA examination report, which included a diagnosis of PTSD, and a November 2002 VA examination report in which the same examiner found no evidence to support a current diagnosis of PTSD. The record also contained a December 2002 addendum to the examination report, in which the examiner indicated that he could not state whether the December 1998 diagnosis of PTSD was in error or whether the Veteran's symptoms had remitted, but nevertheless confirmed that he found no evidence of PTSD on the December 2002 examination. The application to reopen must be denied because none of the evidence received since the Board's October 2005 denial contains evidence of a diagnosis of PTSD or relates to the previous lack of such diagnosis. The evidence received since the October 2005 Board denial includes VA treatment records and the August 2009 VA psychiatric examination conducted in connection with the claim for service connection for psychiatric disabilities other than PTSD. None of these documents contain a diagnosis of PTSD. In fact, there are multiple psychiatric mental status examinations that reflect diagnoses of psychiatric disabilities other than PTSD. The Veteran has highlighted portions of some of these examinations, but they each contain diagnoses of psychiatric disabilities other than PTSD and therefore do not constitute new and material evidence. For example, a July 2008 VA treatment note indicated that, after mental status examination, the diagnoses were alcohol dependence, cocaine dependence, rule out SIMD, rule out substance induced insomnia, and history of adjustment disorder. A January 2009 VA treatment note contained a diagnosis of alcohol and cocaine dependence and adjustment disorder with depressed mood. An August 2009 VA treatment note indicated in the assessment that the examiner was concerned that the Veteran might be bipolar or cyclothymic and would continue to assess the Veteran, and the Axis I diagnoses were alcohol dependence and cocaine abuse in remission since November 2008, with past diagnoses of psychological stress, depressive disorder NOS (not otherwise specified), and psychosocial circumstances. A September 2009 VA treatment note indicated that, based on review of the Veteran's chart, indicated that the Veteran had recently complained of nightmares, had no steady girlfriend, and said his most traumatic memory was when he was running when bombs were being dropped in Vietnam. An addendum to the September 2009 note indicated that the Veteran wanted referral to a PTSD program. A November 2009 VA treatment note contained a diagnosis after mental status examination of mood disorder, NOS, alcohol dependence and cocaine abuse in early remission, with past diagnoses of psychological stress, depressive disorder NOS, and psychosocial circumstances, to be monitored for bipolar disorder or cyclothymia. A January 2011 VA treatment note indicated that the Veteran was a cook in an artillery unit with the 1st infantry division while in Vietnam. A February 2011 problem list included adjustment disorder unspecified and adjustment reaction with mixed emotion, psychological stress, and depressive disorder. A May 2011 VA treatment note indicated that the Veteran related a past history of bad dreams and sleep walking. Finally in this regard, on the August 2009 VA examination, after reviewing the claims file and examining the Veteran, the examining physician diagnosed only alcohol and cocaine dependence currently in apparent remission. After noting that the Veteran did not meet the criteria for a diagnosis of either an anxiety or depressive disorder, the examiner wrote that he did not find evidence of another psychiatric disorder on examination. The above evidence, including those portions highlighted by the Veteran, do not contain evidence of a diagnosis of PTSD and in fact reflect that multiple mental health care professionals have found that the Veteran does not have PTSD. The evidence received since the Board's October 2005 denial is therefore cumulative of the evidence previously of record that the Board found did not reflect a diagnosis of PTSD, an essential element for establishing service connection for this disability. This evidence therefore does not relate to the basis of the prior denial and does not warrant reopening. To the extent that the Veteran has stated he has PTSD, such is cumulative of the prior claim and assertions. Such lay evidence is not new and material. In addition, in his July 2011 statement, the Veteran reported a diagnosis of PTSD by Dr. "S." A layperson is competent to report a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board's review of the evidence reflects that Dr. "S" was the physician who diagnosed PTSD in December 1998 and later determined that the Veteran did not have PTSD. The Veteran is therefore not reporting a new diagnosis that was made since the Board's October 2005 denial of the claim, but, rather, referring to evidence previously of record. His report of that diagnosis of PTSD is therefore not new and material evidence. The Board also notes the Veteran's statements indicating that reopening is warranted under the new regulation applicable to PTSD claims. Effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, Final Rule, 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3). The amendment provides that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. The Supplementary Information in the announcement of the Final Rule, however, indicated that "VA will not apply the rule to claims that were finally denied before the effective date of the rule unless new and material evidence is submitted," and, "The change in the evidentiary standard for establishing occurrence of an in-service stressor would not constitute a basis on which to reopen a finally denied claim for service connection for PTSD because it is procedural in nature and does not effect a substantive change in the law governing service connection for disabilities." 75 Fed. Reg. at 39851. In addition, the regulatory change was intended to reduce the evidentiary burden of establishing a stressor and did not relate to the criteria for establishing a diagnosis of PTSD. Id. While VBA Training Letter 10-05 (July 16, 2010) provides for reopening under the new regulation where a lay statement indicated a stressor causing fear of hostile military or terrorist activity as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, that directive was premised on the assumption that the lack of a valid stressor was the basis for the prior denial, and such was not the case here, where the basis for the prior denial was the lack of a valid diagnosis of PTSD. For the foregoing reasons, the evidence submitted since the October 2005 Board denial is cumulative of the evidence already of record and does not relate to the basis for the prior denial. The evidence is therefore not new and material and reopening of the claim is not warranted. The benefit-of-the-doubt doctrine is not for application. Annoni v. Brown, 5 Vet.App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). Increased Rating for Sinusitis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation 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 here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, the uniform 10 percent rating is proper. The veteran's sinusitis is rated under 38 C.F.R. § 4.97, DC 6513, applicable to chronic maxillary sinusitis. However, the actual criteria for rating sinusitis is set forth in a General Rating Formula under 38 C.F.R. § 4.97. Under that formula, a 10 percent rating is warranted for 1 or 2 incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires 3 or more incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or for near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The Veteran noted in a March 2012 statement that he had rhinitis as well as sinusitis. The Board is in any event required to consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. Under DC 6522, applicable to allergic or vasomotor rhinitis, a 10 percent rating is warranted for greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side without polyps; a 30 percent rating requires polyps. On the July 2009 VA examination, the Veteran indicated that the primary symptoms were lack of drainage and pain in the maxillary region predominantly. The Veteran had never had surgery or a drainage procedure, but used medication. There was a degree of underlying rhinitis. It was noted that a June 2008 CT scan of the sinuses for other reasons showed all sinuses were clear and well aerated. Examination did not show maxillary tenderness or frontal tenderness, and there was no nasal obstruction. Sinus X-ray demonstrated a normal appearance of the sella, no abnormal opacification of the maxillary or frontal sinuses was detected, and the impression was no gross evidence of sinusitis. On the September 2011 VA examination, the Veteran complained of swelling and pain in the paranasal sinus area and bi-temporal area, with associated itching, watering eyes, and some yellow discoloration. On examination, palpation of the paranasal sinus resulted in not pain but sensitivity. The nasal airways were adequate bilaterally intranasally. No abnormality was seen, there was no crusting, no erythema, no blood, no excessive mucus, and a possible very slight decrease in the normal mucus blanket. There were no polyps, although the Veteran stated that on one occasion in past years he had been told he had a nasal polyp in the right nasal cavity. The examiner reiterated that no polyps were seen. The examiner noted normal sinus X-rays in July 2009 and July 2010. He noted a January 2011 tomography scan that showed normal maxillofacial areas, and the September 2011 X-ray taken in connection with the VA examination were also normal. In the discussion section, the examiner noted the normal sinus X-rays and the Veteran's life long history of non-seasonal recurrent allergic rhinitis, and that the Veteran's symptoms occurred as often as two to three times per week. He wrote, "The main complaint when asked directly about his nasal sinus symptoms and activity is that it sometimes makes him sleepy," and that another complaint was of not being able to sleep with a ceiling fan in warm weather or with heat in the winter because of increased nasal congestion. The examiner noted that the impact of this impairment on physical and sedentary employment was minimal. The above evidence reflects that a rating higher than 10 percent is not warranted under either DC 6513 or 6522. There was no evidence of incapacitating episodes. In addition, there was no evidence of non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. Significantly, the Veteran's main complaints were of sleeping problems and lack of drainage and pain, but there were neither examination findings nor statements indicating headaches and purulent discharge or crusting. In addition, the Veteran reported that he was told of a single polyp on one occasion and was competent to do so, Jandreau, 492 F.3d at 1377, but he did not indicate whether this was during the appeal period, and the Board finds the normal sinus findings throughout the appeal period to be of greater probative weight than the Veteran's general statement. The weight of the evidence thus reflects that there was no rhinitis with significant obstruction or polyps warranting a higher or separate rating under DC 6522. The Veteran also requested in his March 2012 statement that he experienced pain, which is not a symptom listed in the criteria for sinusitis or rhinitis, and that an extraschedular rating should therefore be considered. 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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the pain referred to by the Veteran is contemplated by the applicable rating criteria. Pain is one of the symptoms listed in the criteria for higher ratings for sinusitis, but other symptoms are required as well, and the Board has found that the overall symptomatology did not more nearly approximate those required for a higher schedular rating. As to the effect of the disability on the Veteran's sleep, the Board has recognized this effect in the remand section below by affording the Veteran a VA examination to determine whether he has a sleep disorder secondary to sinusitis. To the extent that the sleep-related symptoms or any other symptoms are not contemplated by the schedular criteria, the Veteran did not claim, and the evidence does not reflect, that such symptoms have caused marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. In fact, the Veteran indicated that he had not had surgery for his sinusitis or rhinitis and the September 2011 VA examiner specifically indicated that the impact of impairment from the sinusitis and rhinitis on sedentary employment was minimal. Therefore, referral for consideration of an extraschedular rating for sinusitis is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the symptoms of the Veteran's sinusitis and rhinitis most nearly approximate the criteria for a 10 percent rating. The benefit-of-the-doubt doctrine is therefore not for application and the claim for an increased rating for sinusitis must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER The application to reopen the claim for service connection for PTSD is denied. An increased rating for sinusitis, currently rated 10 percent disabling, is denied. REMAND Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, as noted above in connection with the application to reopen the claim for service connection for PTSD, the Veteran has been diagnosed with multiple psychiatric disabilities other than PTSD. He also wrote in a June 2011 statement that he had psychiatric symptoms continuously since service. The Board notes that there were no references to psychiatric symptoms in the STRs and the psychiatric system was normal on the February 1971 separation examination. The Veteran was afforded an August 2009 VA examination. After reviewing the claims file and examining the Veteran, the examiner wrote, "Based on the information the Veteran provided in today's examination, he did not meet criteria for either an anxiety or depressive disorder." He therefore did not express an opinion as to the etiology of any psychiatric disorder diagnosed during the appeal period. The Veteran correctly noted in his February 2010 substantive appeal (VA Form 9) that he had been diagnosed with other psychiatric disabilities during the appeal period. Although a necessary element for establishing such a claim is the existence of current disability, the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As indicated in the RO's August 2009 decision denying service connection for depression, the Veteran's claim was filed in August 2008. The August 2009 VA examination was therefore inadequate because an opinion was required as to whether any psychiatric disorder diagnosed during the appeal period was related to service. A remand is therefore warranted to obtain an opinion on this question. As the Veteran has claimed service connection for a sleep disorder secondary to a psychiatric disorder, the claims are inextricably intertwined and the claim for service connection for a sleep disorder must be remanded as well. In addition, the Veteran indicated on the September 2011 VA examination that the sinusitis made him sleepy. In addition, the Veteran was diagnosed with sleep apnea in a December 2011 private treatment note, and a December 2011 VA treatment note indicated that he had symptoms of a sleep behavior disorder for years. The Veteran claimed in a January 2011 statement that he was entitled to a VA examination as to his sleep disorder. The Board agrees. Such examination should include consideration of whether a sleep disorder is caused or aggravated by service connected disability and whether it is related to service. Finally, as the Veteran is not currently eligible for a TDIU on a schedular basis, it would be premature to decided the claim for a TDIU prior to final adjudication of the claims being remanded herein, and the claim for a TDIU must therefore be remanded as well. Accordingly, the claims for service connection for an acquired psychiatric disorder other than PTSD, for a sleep disorder, and for a TDIU, are REMANDED for the following action: 1. Request an opinion from a VA psychiatrist or psychologist as to the etiology of any psychiatric disorder other than PTSD diagnosed since the Veteran filed his claim in August 2008. The claims file must be sent to the psychiatrist or psychologist for review. The psychiatrist or psychologist should indicate with regard to any psychiatric disorder diagnosed since August 2008 whether it is as least as likely as not (50 percent probability or more) that such disorder is related to service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports in his written statements and statements made to health care professionals must be taken into account, along with the other evidence of record, in formulating the requested opinions. 2. Schedule the Veteran for a VA examination as to the etiology of any current sleep disorder. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any sleep disorder is related to service. The examiner should also indicate whether any current sleep disorder was either (1) caused or (2) aggravated by either his sinusitis/rhinitis or a psychiatric disorder. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. 3. Readjudicate the claims for service connection for a psychiatric disorder other than PTSD, service connection for a sleep disorder, and a TDIU. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures, including issuance of a SSOC. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs