Citation Nr: 1301664 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 04-24 923A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for thoracolumbar spine disability. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety disorder/panic attacks. 3. Entitlement to an initial rating in excess of 30 percent for asthma. 4. Entitlement to an initial rating in excess of zero percent for otitis media. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from January 1993 to October 1996. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office in Pittsburgh, Pennsylvania that denied service connection for an anxiety disorder and a back disability. Service connection was granted for asthma and otitis media, evaluated as 30 percent and zero percent disabling, respectively, effective from May 30, 2003. The appellant appeals for higher initial ratings. The Veteran was afforded a hearing in March 2010 before the undersigned Veterans Law Judge sitting at Pittsburgh, Pennsylvania. The transcript is of record. The case was remanded by Board decisions in 2006, August 2008, July 2010 and February 2012 and is once again before the Board for appropriate disposition. Following review of the record, the issue of entitlement to service connection for thoracolumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. There is competent evidence of record that an acquired psychiatric disorder was not shown in service or for a number of years after discharge from active duty and is unrelated to service. 2. Evaluation of the Veteran's asthma does not reflect pulmonary function testing showing forced expiratory volume in one second (FEV-1) of 40 to 55 percent of predicted value, or a ratio of FEV-1 to forced vital capacity (FVC) of between 40 to 55 percent, or a course of systemic corticosteroids at least three times per year. 3. There is competent lay and clinical evidence of record that substantially approximates at least monthly visits to a physician for required care of exacerbation or flare-ups of asthmatic symptomatology. 4. Bilateral otitis media is not productive of chronic suppuration, aural polyps, mastoiditis or cholesteatoma. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, including anxiety disorder/panic attacks, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. Resolving the benefit of the doubt in favor of the Veteran, the criteria for a rating of 60 percent for asthma have been met since the effective date of service connection. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 4.1, 4.7, 4.10, 4.97, Diagnostic Code 6602 (2012). 3. The criteria for an initial rating in excess of zero percent for bilateral otitis media are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.87, Diagnostic Code 6600 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). The notice requirements of the VCAA apply to all elements of a claim including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). Here, VA notice was not fully compliant prior to the initial unfavorable decisions on the claims. However, a notice deficiency may subsequently be cured by adequate notification followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006.); See also Prickett v. Nicholson, 20 Vet.App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). As to this case, adequate VCAA notice was sent to the appellant in the totality of the notice letters sent to her over the course of the appeal. The correspondence informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. Notice regarding the effective date elements of the claims has also been sent to the Veteran. See Dingess. Therefore, not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of the claims and given ample time to respond, but the agency of original jurisdiction readjudicated the claims in subsequent supplemental statements of the case. For these reasons, it is not prejudicial to the appellant for the Board to decide this appeal as the timing error does not affect the essential fairness of the adjudication. The Board finds that the necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet.App. 384. Service treatment records have been reviewed. Extensive VA and private clinical records have been received and considered in detail. The appellant has been afforded multiple VA examinations over the course of the appeal, to include clinical opinions that are determined to be adequate for adjudication purposes. She was afforded a personal hearing in March 2010. The totality of the evidence including her statements and testimony has been carefully considered. The Veteran has not indicated that there is outstanding evidence that has not been received or considered. The Board is not aware of the existence of any additional or relevant evidence that has not been obtained in this regard. No further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claims. See 38 U.S.C.A. § 5103A (a) (2); Dela Cruz v. Principi, 15 Vet.App. 143; Smith v. Gober, 14 Vet.App. 227 (2000); aff'd 281 F. 3d 1384 (Fed. Cir. 2002); see also Quartuccio v. Principi, 16 Vet.App. 183; Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (2002). As such, the claims of entitlement to service connection for an acquired psychiatric disorder and higher ratings for asthma and otitis media are ready to be considered on the merits. 1. Service connection for anxiety disorder. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). Factual Background Service treatment records reflect no treatment for psychiatric symptoms. A single service clinical entry records a notation of rule out early virus versus anxiety when the Veteran was being treated in January 1993 for respiratory symptoms. When examined in October 1996 for separation from service, the appellant denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort on the Report of Medical History. Her psychiatric status was evaluated as normal and no pertinent defects were noted. A post service private record dated in February 1997 reflects that the appellant was seen in the emergency department at the Naval Hospital at Twenty-Nine Palms for a possible allergic reaction. It was recorded that she was hyperventilating, pale, and anxious. She stated that she was a hypochondriac. It was noted that she was apparently experiencing an anxiety attack because of a rash on her lower extremities. The record reflects that after about 15 minutes of talking to and much coaching the appellant she was able to calm herself down. The assessment/diagnosis was questionable allergic reaction and anxiety reaction. In May 1997, it was recorded that she was seen in the emergency room with complaints of difficulty swallowing. A medical history that included anxiety and depression was recorded. Following examination, the assessment/diagnosis was throat pain and normal examination. A VA outpatient clinical record dated in December 2001 indicated that the Veteran was seen for an initial evaluation after being referred by a primary care physician for anxiety disorder and panic attacks at her request. It was reported that she had described feelings of stress and panic to her primary care provider in October 2001 and was referred for a behavioral consultation. The appellant related that 'anxiety problems' had started around 1994-95 and that she did not know what had "set it off." She said that she would "get up really anxious [and] start to obsess." The Veteran stated that panic attacks occurred approximately one to two times a month on average and that they typically involved fear about something being wrong with her or her having some illness, after which she became scared and began to have panic symptoms. Following evaluation, a diagnostic impression of panic disorder was rendered. It was noted that she would be enrolled in the primary care team, scheduled for a medication evaluation and referred for psychotherapy for an anxiety disorder. A VA outpatient clinical record dated in September 2002 reflects that the Veteran received individual therapy for symptoms diagnosed as generalized anxiety disorder The Veteran was afforded a VA examination in October 2003. It was noted that the claims folder and relevant online records were reviewed. History was provided to the effect that she had first sought psychiatric intervention at the facility in December 2001 but reported that she had experienced her first anxiety attack round 1994 or 1995. She related that she had been diagnosed with asthma shortly before that time, and had had an episode of wheezing that apparently triggered a panic attack whereupon she began to obsess ruminatively that she had emphysema. She believed that she might have had an anxiety attack before that time but typically attempted to ignore them or 'didn't put things together.' She reported other episodes of anxiety during the military sometimes triggered by stressful events and sometimes for no apparent reason, but said that she never sought treatment while in the military. The Veteran related that she began to realize that she had a significant problem shortly after discharge. She stated that she currently experienced numerous attacks that varied in severity and that these had begun to interfere with her marital relationship, parenting and academic pursuits. Pertinent background and history were recited. Following mental status examination, a diagnostic impression of panic disorder without agoraphobia was diagnosed. Among other things, the examiner commented that based on her report, the Veteran experienced her first panic attack when she was in the military but that there were no service military records documenting her account of such. Subsequent VA outpatient clinical records reflect that the appellant continued to receive ongoing individual psychotherapy for symptoms primarily diagnosed as panic disorder without agoraphobia and generalized anxiety disorder. When examined by VA in January 2007 for compensation and pension purposes, anxiety disorder was diagnosed. The examiner found that the appellant did not meet the diagnostic criteria for panic disorder without agoraphobia at that time. It was added that based on her self report and review of her military medical record, she was not diagnosed with any psychiatric disorder until 2001. The examiner found that the incident when she was seen in the emergency room at the Naval Hospital at Twenty-Nine Palms was not sufficient to establish a psychiatric diagnosis and did not fulfill the diagnostic criteria for a panic attack. He stated that "It is this examiner's opinion that her currently diagnosed psychiatric condition is not a result of...military service or any incident therein." He added that the comment regarding a past medical history of depression by a primary care physician during her May 31, 1997 evaluation for difficulty swallowing did not provide sufficient detail to establish a treatment history. Another VA examiner reviewed the record in November 2010 and noted that he had been requested to consider a service clinical entry in 1993 [referring to anxiety] and several post service clinic notes from 1997 in determining whether it was at least as likely as not that these were indicative of the onset of an anxiety disorder for which the Veteran was currently being treated. The examiner provided a comprehensive background narration and chronicled pertinent history dating from service to the present, including a review of previous VA examiners' reports. Following mental status examination, an Axis I diagnosis of adjustment disorder with mixed emotional features secondary to multiple life issues and stressors (financial and her marriage), "not service connected" was rendered. An Axis II diagnostic impression of anxiety disorder, mild to moderate intensity, "not service connected" was also provided. The examiner commented that it was highly unlikely, much less than 50/50, that the vague references to anxiety in her record in 1993 and in 1997 were initial manifestations of an anxiety disorder for which she had been treated since 2001. Legal Analysis On evaluation and analysis of the evidence recited above, the Board finds that an acquired psychiatric disorder, including anxiety disorder/panic attacks, is not related to active service. The Veteran's service treatment records contain no evidence of treatment or a diagnosis of an acquired psychiatric disorder. Although there was a notation of possible anxiety symptoms in 1993 when she was seen for other reasons, no psychiatric diagnosis was provided at that time. The 1996 service discharge examination report is silent for any reference to psychiatric symptomatology, to the include the appellant's affirmative declaration that she did not and had not had nervous trouble of any sort. Her psychiatric status was evaluated as normal at that time. As well, on VA examinations in 2007 and 2010, the examiners clearly determined that the criteria for an acquired psychiatric were not met during service and that current psychiatric disability was not related to the appellant's military service. The preceding points are negative evidence against the claim and clearly militate against a finding that an acquired psychiatric disorder, including anxiety/panic attacks, is of service onset. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (west 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Buchanan v. Nicholson, 451 3d 1331. Lay evidence must be considered when a Veteran seeks disability benefits. See Layno v. Brown, 6 Vet.App. 465, 470 (1994). The Veteran is competent to assert that she had feelings of anxiety and panic attacks in service and state that current psychiatric symptomatology is a continuation of that pattern. The Board can weigh the absence of contemporaneous medical evidence against the lay evidence of record. See Buchanan v. Nicholson, 451 F. 3d 1331 (2006). In this regard, it is pointed out that despite her later testimony and statements to the effect that panic attacks were a frequent occurrence during active duty, the appellant clearly denied nervous trouble of any sort on the Report of Medical History on service discharge examination in 1996. It is thus found that the silent service records that reflect no psychiatric treatment, the normal separation examination, and the appellant's contemporaneous denial any psychiatric symptomatology are far more probative than a remote statement of inservice onset and continuity of symptoms. The Board observes that there was a notation of "rule out early virus versus anxiety" in service treatment records dated in 1993. There was also an anxious presentation and an assessment of anxiety reaction shortly after separation when the Veteran sought treatment in February 1997 for what she described as an allergic reaction. However, in a well-rationalized opinion, the VA examiner in 2010 found that it was highly unlikely that the vague references to anxiety in 1993 and 1997 were initial manifestations of an anxiety disorder. He determined that such symptoms were not sufficient to establish a psychiatric diagnosis or fulfill the diagnostic criteria for a panic attack. The VA clinical professionals in 2007 and 2010 reviewed the record and examined the Veteran and determined that an acquired psychiatric disorder, including an anxiety disorder, was less likely than not related to service, and that an acquired psychiatric disorder was not documented until 2001, five years or so after the Veteran separated from active duty. In this instance, the VA clinical professionals have the greater skill in determining the date of onset of an acquired psychiatric disorder after reviewing the evidence and examining the Veteran. No other physician or provider in the record has related an acquired psychiatric disorder to service. Therefore, the appellant's account of an anxiety disorder related to service is less probative to establish a lay nexus to service in light of the strong clinical evidence to the contrary. The service treatment records that reflect no competent evidence of an acquired psychiatric disorder, and the post-service treatment data that contain no competent clinical evidence linking a current psychiatric disorder to active service far outweigh her contentions in support of the claim. Consequently, the more competent and probative evidence of record concludes that an acquired psychiatric disorder, including anxiety/panic attacks, was first manifested years after discharge from active duty and is not related to service. The Board thus finds that the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder, including anxiety disorder/panic attacks is denied. Higher Ratings Law and Regulations - General Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet.App. at 126; see also Hart v. Mansfield, 21 Vet.App. 505 (2007). 2. Initial rating in excess of 30 percent for asthma. Pursuant to an April 2006 Board decision, service connection was established for asthma, evaluated as 30 percent disabling, effective from May 30, 2003. Pertinent regulations. The Veteran's service-connected asthma is rated as 30 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6602 that is based on results of pulmonary functions tests, the required treatment, and the frequency and severity of the asthmatic attacks. A 30 percent rating is assigned when forced expiratory volume in one second (FEV-1) is in the range from 56 to 70 percent of predicted value, or; the ratio of FEV-1 to forced vital capacity (FVC) is in the range from 56 through 70 percent, or; there is a need for daily inhalation or oral bronchodilator therapy, or; need of inhalational anti-inflammatory medication. A 60 percent evaluation is assigned where forced expiratory volume in one second (FEV-1) is in the range from 40 to 55 percent of predicted value, or; the ratio of FEV-1 to forced vital capacity (FVC) is in the range from 40 through 55 percent, or; 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 is assigned for pronounced bronchial asthma where FEV-1 is less than 40 percent of predicted value, or; the ratio of FEV-1 to FVC is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; which requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. Factual Background and Legal Analysis VA and private clinical records dating back to May 2003 reflect that the appellant has been continuously treated and followed for symptoms associated with asthma, and been placed on a number of medications for her symptoms. In January 2004, a VA Ph. D., R.N. reviewed the extensive evidence and stated that the appellant had experienced many exacerbations that required intervention with antibiotics, steroids or ECC visits despite the use of Montelukast, Foradil. Flunisolide and Albuterol that were her maintenance drugs. It was reported that in January, June, September and December 2003, she was seen for increased symptoms of asthma and treated with steroids and/or antibiotics. The same examiner wrote in September 2009 that the Veteran had a history of frequent exacerbations and required close follow-up that were likely to require treatment with antibiotics and/or oral steroids. It was noted that a review of records for the past two years showed exacerbations in March, July, September and December 2007, April, May, September and December 2008, and March, May, July and September 2009. It was also reported that her current medication regimen included Foradil, Singulair, Mometasone and Albuterol for rescue. The Board observes that VA outpatient treatment records dating through October 2012 (including those shown on Virtual VA) reflect a similar pattern of exacerbations of symptomatology. The record reflects that the Veteran has undergone a number of pulmonary function tests (PFT) on VA examinations over the years. A VA outpatient clinic note in April 2005 indicated that PFT was essentially normal. When most recently afforded pulmonary function testing in 2011, it was reported that FEV1, FVC and FEV1/FVC and diffusing capacity were within normal limits and that spirometry was normal. As such, the PFT values obtained overall do not reflect FEV-1s in the range from 40 to 55 percent of predicted value, nor is it demonstrated that the ratio of FEV-1/FVC has been in the range from 40 through 55 percent. In view of such, the Board finds that no more than a 30 percent disability evaluation is warranted as to this particular aspect of the rating criteria under Diagnostic Code 6602. As well, the Board notes that while the medical records indicate that the Veteran was placed on a number of medications for her service-connected respiratory disorder over the years, including steroids, the clinical data do not substantially document the use of oral steroids which rises to the level of at least three courses of systemic corticosteroids over a year which is required for a 60 percent disability evaluation under Diagnostic Code 6602. The Board does observe, however, that there is extensive medical evidence that shows that the Veteran has sought continuing treatment for asthmatic symptomatology over the years, to include trips to the emergency room, as well as regular care for acute symptoms. She has been prescribed multiple medications for her symptoms. The appellant presented testimony in March 2010 to the effect that she had exacerbations at least eight times a year for which she was given antibiotics and/or steroids. A layman is competent to report what symptoms she experiences through the senses. See Layno v. Brown, 6 Vet.App. 465, 470 (1994). The Board thus concludes that with consideration of the appellant's statements, testimony and the treatment record, the evidence reasonably approximates the criteria for at least monthly visits for required care of exacerbation of asthma for which a 60 percent disability evaluation may be conceded since the grant of service connection. The Board finds that the schedular criteria for a 100 percent disability are not clinically demonstrated. This is because the evidence does not reflect FEV-1 less than 40 percent of predicted value, or the ratio of FEV-1 to FVC is less than 40 percent, or the appellant has more than one attack per week with episodes of respiratory failure, or that she requires daily use of systemic high dose corticosteroids or immuno-suppressive medications. However, the benefit of any doubt is resolved in favor of the Veteran by finding that the service-connected asthma is 60 percent disabling from May 30, 2003. The Board has also considered whether referral for extraschedular consideration is warranted under 38 C.F.R. § 3.321 (2012) but finds that there is no basis for further action as to this question. There is no indication of an exceptional disability picture such that the schedular evaluation for the service-connected asthma is inadequate. See Thus v. Peake, 22 Vet.App. 111, 115 (2008). Moreover, there is no objective evidence demonstrating that the appellant's service-connected asthma markedly interferes with employment beyond that contemplated by the rating schedule. There is no evidence showing that she has been frequently hospitalized due to asthma. The evidence shows that the relative manifestations and the effects of the disability have been fully considered and are contemplated by the rating schedule. Therefore, referral for an extraschedular rating is not necessary. See Thun, supra. 3. Initial rating in excess of zero percent for bilateral otitis media. Pertinent Regulations Pursuant to an April 2006 Board decision, service connection was established for bilateral otitis media, evaluated as noncompensably disabling, effective from May 30, 2003. Otitis media is evaluated as noncompensably disabling under 38 C.F.R. § 4.87, Diagnostic Code 6200 that provides that chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) is evaluated at a 10 percent level during suppuration, or with aural polyps. Id. Factual Background and Legal Analysis After review of the evidence, the Board concludes that a compensable evaluation is not warranted for bilateral otitis media. Although the Veteran presented testimony in March 2010 that she experienced some leakage and drainage of the ears, as well as increased symptoms treated by antibiotics, the record does not confirm this statement to any significant extent. The Board observes that with the exception of episodic reports of earache, pain and a sense of fullness and congestion, to include an occasion in January 2004, and between July and September 2005 (where it was also found that she also had otitis externa for which service connection is not in effect), the criteria for compensable evaluation are not demonstrated. The objective findings relative to ears, to include on VA examinations in August 2003, August 2009 and November 2010 have been substantially normal throughout the appeal period with normal ear canals and tympanic membranes. No active disease process has been noted on multiple ear evaluations except when she was prescribed antibiotics in 2004 and 2005. The evidence does not demonstrate a chronic suppurative process or aural polyps for which a compensable rating is warranted under Diagnostic Code 6200. Therefore, the currently assigned non-compensable (zero percent) evaluation is appropriate. See 38 C.F.R. § 4.31 (2012). The Board would also point out that a note associated with and following Diagnostic Code 6200 provides for separate evaluations of hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull. The record reflects, however, that none of the above has been diagnosed in this case. The Board recognizes that a layperson is competent to describe what comes to him through the senses. See Layno v. Brown, 6 Vet.App. 465. In this regard, the Veteran can assert that the symptoms associated with bilateral otitis media are worse. However, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1135 (Fed. Cir. 2006). To the extent that the appellant asserts that her service-connected otitis media is more severely disabling, the Board points out that the findings on the VA medical examinations and in private reports, and the lack of contemporaneous evidence indicating more significant ear symptoms do not establish that the Veteran has more severe disability in this regard. In view of such, the Board finds that the VA and private findings are more credible and probative. In sum, there is no indication that the service-connected otitis media is significantly active or involves chronic suppuration, mastoiditis, or cholesteatoma. As indicated previously, no aural polyps have been observed. Therefore, the preponderance of the evidence is against the Veteran's claim for a higher disability rating in this regard. Accordingly, a compensable rating under Diagnostic Code 6200 has not been warranted over the course of the appeal. Additionally, the record does not establish that the rating criteria are inadequate for evaluating the Veteran's service-connected bilateral otitis media. The evidence shows that the relative manifestations and the effects of this disability have been fully considered and are contemplated by the rating schedule. Therefore, referral for an extraschedular rating is not indicated at this time. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). ORDER Service connection for an acquired psychiatric disorder, including anxiety disorder/panic attacks, is denied. A 60 percent evaluation for asthma is granted, subject to controlling regulations governing the payment of monetary awards. An initial rating in excess of zero percent for bilateral otitis media is denied. REMAND The Board is of the opinion that further assistance to the Veteran is required in order to comply with the duty-to-assist provisions mandated by 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012) as to the claim for a back disorder. The Veteran asserts that she has a back disorder that is related to service for which service connection is warranted. Service treatment records reflect that she was treated for complaints of low back and sacral pain on a number of occasions during active duty. The Board observes that when the case was most recently remanded in February 2012, it was requested that an opinion be provided following examination as to whether the Veteran had an acquired back condition, and whether any back disability found was related to service. It was specifically requested that the examiner provide an opinion as to whether any current acquired low back disability was causally related to service. The Board observes, however, that on ensuing VA examination in March 2012, the VA physician's assistant made some contradictory and confusing statements. Specifically, he stated that there was no evidence of an acquired disability of the thoracic spine and that current films of the thoracic and lumbar spine were normal. However, he also said that current thoracic spine films showed exaggerated thoracic kyphosis and marginal degenerative change with marginal phytes. The diagnoses included myofascial lumbar pain with mild disc bulges that contradicts the finding of a normal lumbar spine. Additionally, although the examiner related that low back pain began in service, he did not provide an opinion as to whether the current diagnoses he provided relative to the thoracic and lumbar spine were related to service as requested in the Board remand. The Board thus finds that the March 2012 examination report is inadequate and must be remanded for a supplementary opinion. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has stated that if the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. In view of the above, the case is REMANDED for the following actions: 1. Refer the claims folder to the same VA examiner (or another one if that one is not available) who examined the Veteran in March 2012 for a supplementary opinion. [The Veteran may also be scheduled for another VA examination if this is deemed indicated.] The examiner should specifically state whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the current thoracic and lumbar spine disorders as diagnosed by him are related to or are traceable to the low back complaints for which the Veteran was treated in service. The examination report must include well-reasoned rationale for all opinions and conclusions reached. 2. The RO should ensure that the medical report requested above complies with this remand and its instructions. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned for correction. See Stegall. 3. After taking any further development deemed appropriate, re-adjudicate the remaining issue on appeal. If the benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. 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. 2012). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs