Citation Nr: 1310037 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 08-29 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable rating for left foot status post arthroplasty with hemiphalangectomy of the fifth digit, due to hammertoe and painful corn. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to February 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal of November 2007 and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia and San Diego, California. In the November 2007 decision, the Roanoke RO granted the Veteran service connection for left foot status post arthroplasty with hemiphalangectomy of the fifth digit due to hammertoe and painful corn and assigned a noncompensable rating from February 12, 2007 to April 5, 2007; a temporary 100 percent disability rating from April 6, 2007, to May 31, 2007; and a noncompensable rating from June 1, 2007. In the December 2008 decision, the San Diego RO denied the Veteran's claims for service connection for sinusitis and asthma. Due to the location of the Veteran's residence, jurisdiction of her appeal remains with the Roanoke RO. As the appeal of the Veteran's claim for an initial compensable rating for left foot status post arthroplasty with hemiphalangectomy of the fifth digit due to hammertoe and painful corn emanates from her disagreement with the initial noncompensable rating assigned following the grant of service connection of this disability, the Board has characterized the claim as one for a higher initial rating, in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board acknowledges, as noted above, that the Veteran was awarded a temporary total disability rating for left foot status post arthroplasty with hemiphalangectomy of the fifth digit due to hammertoe and painful corn from April 6, 2007, to May 31, 2007, based on surgical or other treatment necessitating convalescence. As the 100 percent rating assigned during that period is the highest rating available, the Board will not disturb that evaluation. In her substantive appeal for the initial rating claim, submitted in August 2008, the Veteran requested a hearing before a Veterans Law Judge (VLJ) sitting at the Board in Washington, D.C. Thereafter, in the substantive appeal submitted in April 2010, with regard to the service connection claims on appeal, the Veteran indicated that she wished to testify before a VLJ sitting at the Roanoke RO. After several postponements, the Veteran was scheduled for a hearing before a VLJ at the Board in Washington, D.C. in October 2011. However, prior to the October 2011 hearing, the Veteran, through her representative, submitted a letter indicating that she wished to withdraw her request for a Board hearing. In August 2012, the Board remanded the case to schedule the Veteran for a hearing before a VLJ sitting at the Roanoke RO. However, in a February 2013 statement, the Veteran, through her representative, indicated that she was also withdrawing her request for a hearing before a VLJ at the RO. See February 2013 Appellate Brief Presentation. The Veteran has not requested that either hearing be rescheduled. Therefore, her request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2012). The issues of entitlement to service connection for sinusitis and asthma 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. FINDING OF FACT Throughout the entire appeal period, the Veteran's left foot disability has been manifested by symptoms that approximate a moderate foot disability. CONCLUSION OF LAW The criteria for a 10 percent disability rating, but not higher, for the Veteran's left foot status post arthroplasty with hemiphalangectomy of the fifth digit, due to hammertoe and painful corn have been met throughout the entire appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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) defined VA's duty to assist a 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) (2012). The claim arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (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 an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. The Duty to Assist 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). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. The Veteran was also provided a proper VA examinations in October 2007 and June 2010, to evaluate her left foot/toe disability, and there is no evidence or contention that there has been a change in the Veteran's symptoms since the last examination in June 2010. As noted above, in August 2012, the Board remanded the Veteran's claim to schedule the Veteran for a hearing before a VLJ sitting at the Roanoke RO. The However, in a February 2013 statement, the Veteran, through her representative, withdrew her request for a hearing before a VLJ at the RO and as such, the hearing was not scheduled. Therefore, the Board finds that the remand instructions were substantially complied with. A Veteran is presumed to be seeking the maximum rating permitted by law, but may limit her appeal to a lesser benefit. AB v. Brown, 6 Vet. App. 35, 39 (1993); Hamilton v. Brown, 4 Vet. App. 528, 544 (1993). In this case, in the August 2008 VA Form 9, the Veteran indicated that she believed that she met the requirements for a higher evaluation of 10 percent for her left foot/toe disability. Since this decision grants a 10 percent rating during the entire appeal period, further assistance is not required to assist the Veteran in substantiating the claim. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Each disability must be considered from the point of view of the Veteran who is working or seeking work. 38 C.F.R. § 4.2 (2012). 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 view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Diagnostic Code 5282 provides ratings based on hammer toes. Hammer toe of a single toe is rated noncompensably (0 percent) disabling. Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling. 38 C.F.R. § 4.71a. A moderate foot injury warrants a 10 percent evaluation; a moderately severe foot injury warrants a 20 percent evaluation and a severe foot injury warrants a 30 percent evaluation. Actual loss of use of the foot warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, DC 5284. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Background Service treatment records show that the Veteran was seen for pain in the left small toe in 1987. In 1991, she was seen for a painful, hard corn on the left little toe. X-rays were normal. She was placed on a physical profile, and continued to be seen intermittently throughout the remainder of her military service for left 5th toe pain and deformity. Left foot trouble due to calluses was noted at the time of her separation examination. Treatment records from the VA Medical Center in Richmond, Virginia show that on April 6, 2007, the Veteran underwent a left foot arthroplasty with hemiphalangectomy of the 5th digit due to hammertoe and painful corn, during which the head of the proximal phalanx and the lateral aspect of the middle phalanx of the left 5th digit were removed. There were no operative or postoperative complications noted. The Veteran was afforded a VA examination in response to her claim in October 2007. The Veteran reported that since her toe surgery in April 2007, her pain had considerably diminished, although it still occurred, and she had frequent, aching discomfort in the little toe, which was worse with activity. She also reported that she was taking Tylenol #3 or Vicodin, on an as needed basis. Physical examination of the feet revealed thickened skin on the plantar aspect of both feet. There were no actual callosities and no skin breakdowns. There was a small callus of the right little toe laterally, which measured approximately 1 cm x 0.5 cm. There was no skin breakdown in the area of the callus. There was also no evidence of malunion of the os calces or astragalus. Range of motion of the ankles was normal, and there was no pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Examination of the feet and toe revealed no evidence of painful motion, edema, disturbed circulation, weakness, atrophy, or tenderness bilaterally. There was active motion in the metatarsophalangeal joint of both great toes. However, the examiner noted that the Veteran had a minimally abnormal gait, which he believed was done purposely by the Veteran, due to her concern for having pain in the toe area. There was no evidence of flatfeet, no deformities of either foot, and no tenderness in either foot. Examination of the Achilles tendon revealed good alignment bilaterally. There was no evidence of clawfeet, and no signs of dropped foot or varus deformity bilaterally. Dorsiflexion of the toes produced no pain bilaterally, and palpation of the metatarsal heads produced no tenderness bilaterally. There was no evidence of hammertoes of either foot, Morton's metatarsalgia, hallux valgus, or hallux rigidus. The examiner noted that with regard to functional limitations, the Veteran was able to ambulate and stand without difficulty, but she did have minimal discomfort if standing or walking for a prolonged period of time. She was not wearing any type of corrective shoes. X-rays of the left foot revealed a small plantar calcaneal spur, and evidence of her prior surgery, resecting the distal end of the proximal phalanx of the left little toe, but otherwise, no significant left foot abnormality. The examiner's diagnosis was status post arthroplasty with hemiphalangectomy of the left fifth digit of the left foot with residual scar for hammertoe and painful corn. In a November 2007 rating decision, the RO granted service connection for left foot, status post arthroplasty with hemiphalangectomy of 5th digit due to hammertoe and painful corn. A noncompensable evaluation was assigned, effective February 12, 2007. A temporary 100 percent evaluation was assigned, effective April 6, 2007, based on surgical or other treatment necessitating convalescence. A noncompensable evaluation was assigned again from June 1, 2007. In a January 2008 statement, the Veteran reported that she continued to experience chronic foot pain, tingling, and numbness at the tip of her toe, even after her surgery in April 2007, especially when wearing shoes, standing or walking. She also reported that she had purchased special shoes, shoe pads, and cushions for comfort. In her August 2008 VA Form 9, the Veteran reported that her left foot disability caused her significant limitations in her ability to walk or stand for prolonged periods of time, and that she experienced significant pain in the foot, which caused her gait to be abnormal. As such, she argued that she met the requirements for a 10 percent rating for her left foot/toe disability. The Veteran was afforded another VA examination in June 2010. She complained of constant, localized pain in the left little toe, which was squeezing, burning, aching, oppressing, sharp, and cramping. She claimed that the pain was at a level of 9. It was exacerbated by physical activity and relieved by rest and pain medication. At the time of pain, she was able to function without medication. She also complained of pain, stiffness and swelling in the left foot at rest, but no weakness or fatigue. She complained of pain, weakness, swelling and fatigue, but no stiffness, while standing or walking, and pain with ambulation. She reported that she was not receiving any treatment for her condition. Examination of the ankles, including range of motion studies, was normal. Examination of the left foot revealed no tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation, and there was active motion in the metatarsophalangeal joint of the left great toe. Palpation of the plantar surface of the left foot revealed no tenderness. Alignment of the Achilles tendon was normal on the left while the Veteran was weight bearing and non weight bearing. There was no evidence of pes planus, pes cavus, hammer toes, Morton's Metararsalgia, hallux valgus, or hallux rigidus. The Veteran did not have any limitation with standing or walking, and she did not require any type of support with her shoes. X-rays of the left foot were abnormal, in that they showed post-surgical changes and a small calcaneal spur, which the examiner noted was unrelated to the claimed condition. The examiner continued the established diagnosis of status post arthroplasty with hemiphalangectomy of the left fifth digit of the left foot with residual scar for hammertoe and painful corn. In October 2011 and August 2012 statements, the Veteran's representative relayed the Veteran's reports of daily, constant pain in the left foot, numbness in the tip of her toe, and in contradiction to what the June 2010 VA examiner found, an abnormal gait, due to left foot pain. See October 2011 Informal Hearing Presentation and February 2013 Appellate Brief Presentation. Analysis Throughout the pendency of the appeal, the Veteran has reported chronic pain, stiffness, swelling, weakness, and fatigue in the left foot and little toe. She has also reported pain in the left foot with ambulation, limitations in standing and walking for prolonged periods of time, due to left foot/toe pain, and numbness in the tip of the left little toe. She has also reported, and been noted on examination in October 2007, to have a minimally abnormal gait, due to left foot/toe pain, and minimal discomfort if standing for a prolonged period of time, due to left foot/toe pain. These findings and reports support a conclusion that the Veteran has moderate residuals of her left foot injury. The Veteran is competent to report the symptoms of her disability, and there is no contradictory evidence of record which would support a finding that the Veteran's reports are not credible. Accordingly, affording the Veteran all reasonable doubt in her favor, a 10 percent rating is warranted under the criteria of Diagnostic Code 5284. The symptoms of the Veteran's left foot disability do not approximate a moderately severe or severe disability because physical examinations throughout the appeal period show that there was no objective evidence of painful motion, edema, heat, redness, instability, disturbed circulation, weakness, atrophy, or tenderness in the feet, and there was active motion in the metatarsophalangeal joint of the left great toe. Furthermore, there was no evidence of flatfeet, no deformities of either foot, and no tenderness in either foot. Examination of the Achilles tendon revealed good alignment bilaterally. There was no evidence of clawfeet, and no signs of dropped foot or varus deformity bilaterally. Objective testing revealed that dorsiflexion of the toes produced no pain bilaterally, and palpation of the metatarsal heads produced no tenderness bilaterally. In addition, there was no evidence of pes planus, pes cavus, hammer toes, Morton's Metararsalgia, hallux valgus, or hallux rigidus. Furthermore, besides evidence of post-surgical changes and a small calcaneal spur, which the June 2010 examiner noted was unrelated to the claimed left foot/toe condition, X-rays of the left foot have been negative. A higher or separate rating is also not warranted under Diagnostic Codes 5276, 5277, 5278, 5279, 5280, 5281, or 5283, respectively, because there is no evidence of flatfoot, weak foot, claw foot, Morton's disease, hallux valgus, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. A higher or separate rating is also not warranted under Diagnostic Code 5282 because although the evidence shows that the Veteran underwent a left foot arthroplasty with hemiphalangectomy of the 5th digit due to hammertoe and painful corn in April 2007, there is no evidence during the appeal period of hammer toes affecting all the toes on the left foot. A higher rating is also not warranted under Diagnostic Code 5271 because there is no evidence of limitation of motion of the left ankle. Furthermore, the Board finds that the Veteran is not entitled to a higher rating of 40 percent under Diagnostic Code 5167, for loss of use of the foot because the Veteran has not reported and the evidence does not show that she has completely lost all functional use of her left foot, with no effective function remaining other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance. See 38 C.F.R. § 4.71a, DC 5167. The Board notes that the Veteran has reported functional impairment from her left foot/toe disability, in that she has limitations in standing and walking for prolonged periods of time, and difficulty ambulating. However, she has also reported that she is able to function during flare-ups of pain with medication, and she denied using any assistive devices or receiving any treatment for her condition. In addition, she has not been shown on examination to require corrective shoes. Furthermore, the June 2010 VA examiner concluded that the Veteran's disability only mildly affected her ability to perform activities of daily living. Accordingly, the Board finds that a rating in excess of 10 percent under the criteria set forth in DeLuca is not warranted. The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath v. Derwinski¸ 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability evaluation for the disability at issue, at any time during the appeal, except during the Veteran's period of convalescence from April 6, 2007 to May 31, 2007. In this regard, the Board notes that although the Veteran has been noted on examination to have a post-surgical scar on the left little toe, associated with her service-connected left foot disability, as the scar has not been shown during the period on appeal to be unstable or painful; deep and covering an area of at least 6 square inches, but less than 12 square inches; or superficial and covering an area of 144 square inches or greater; a separate rating under Diagnostic Codes 7800-7805 is also not warranted. The Board also notes that, effective October 23, 2008, the Schedule for rating criteria that addresses the evaluation of scars was revised. See 73 Fed. Reg. 54,708 (Oct. 23, 2008) (to be codified at 38 C.F.R. pt. 4). These new criteria apply to applications for benefits received on or after October 23, 2008, or upon request from a Veteran who was rated under the applicable criteria before this date. Id. The Veteran's claim was received prior to this date and the Board has not received a request from the Veteran or her representative to be rated under the revised criteria. Hence, those rating criteria do not need to be addressed at this time. Outpatient treatment records from the VA Medical Center in Hampton, Virginia and Richmond, Virginia dated from 2002 to 2012 have also been reviewed. These records do not show that the Veteran meets the criteria for a disability rating in excess of 10 percent under any applicable diagnostic code at any time during the appeal, except during the Veteran's period of convalescence from April 6, 2007 to May 31, 2007. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence submitted by the Veteran in the form of her correspondence to VA and her statements to the VA examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran complete competence and credibility in reporting her symptoms and the impact of those symptoms on her daily activities, nothing in the lay evidence shows her disability picture more closely approximated the schedular criteria for a rating in excess of 10 percent at any time during the appeal. Resolving reasonable doubt in the Veteran's favor, an initial rating of 10 percent is granted for left foot status post arthroplasty with hemiphalangectomy of the fifth digit, due to hammertoe and painful corn, from February 12, 2007 to April 6, 2007, and from June 1, 2007. 38 U.S.C.A. § 5107(b) (West 2002). This represents a full grant of the benefit sought on appeal. Extra-schedular consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran's left foot/toe disability, as discussed above, is manifested by pain and tenderness with associated functional impairment, as described above. 38 C.F.R. § 4.10, 4.71a, Diagnostic Code 5284. Hence, referral for consideration of extraschedular ratings is not warranted. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case there is no evidence that a service connected disability has caused unemployability. The October 2007 examiner noted that the Veteran was employed by NASA at a desk job, which she was able to carry out without difficulty, and the June 2010 VA examiner concluded that the effect of the Veteran's left foot disability on her daily activities and usual occupation was mild. As there has been no allegation or evidence of unemployability attributable to the service connected disabilities, the Board finds that further consideration of entitlement to TDIU is not required. ORDER An increased rating of 10 percent for left foot status post arthroplasty with hemiphalangectomy of the fifth digit, due to hammertoe and painful corn is granted from February 12, 2007 to April 6, 2007, and from June 1, 2007. REMAND For the reasons set forth below, additional development is needed concerning the issues of entitlement to service connection for sinusitis and asthma. The Veteran contends that she has current respiratory disorders, including asthma and sinusitis, related to her active military service. She reported in her April 2010 VA Form 9 that her military records show that she suffered from upper respiratory problems, including asthma and sinusitis, and that she treated them with over the counter and prescription drugs, inhalers, allergy medication, nasal solution, ear drops, and several cough medications. She also reported in her August 2008 claim that her condition had been treated as sinusitis, an upper respiratory infection and asthma since her discharge from the military. The service treatment records (STRs) reveal isolated incidents of various sinus symptoms - usually associated with headaches or upper respiratory infection - such as congestion, tenderness, and runny nose. There was no mention of sinusitis or asthma until the January 2003 examination, just prior to discharge, at which time a history of sinusitis was noted, along with asthma as a child. The accompanying examination report included a normal clinical evaluation of the nose, sinuses, and lungs. No respiratory disorder, including asthma or sinusitis, was diagnosed at the time of her discharge. Private treatment records from the Neurology Clinic show that during a headache evaluation in August 1993, the Veteran reported a history of asthma. VA treatment records dated from 2002 to 2012 are negative for any evidence of treatment or diagnosis for sinusitis. However, they do show treatment for asthma, as well as upper respiratory problems and infections, allergic rhinitis, bronchitis, and complaints of sinus trouble. However, they do not show that asthma, or any other respiratory disability, has been linked to the Veteran's active military service. The Board also notes that in her April 2010 VA Form 9, when discussing the onset and symptomatology of her claimed asthma and sinusitis, the Veteran reported that she had been treated at Sentra Urgent Care. The claims folder does not contain records of treatment from Sentra Urgent Care. The Veteran does not identify the date(s) of this care for her claimed sinusitis and asthma or whether such records link these ailments to service. But it is possible such records go back to the time just after discharge from service, or otherwise indicate that such ailments are related to service. The procurement of potentially pertinent medical records referenced by the Veteran is required. As it appears that there may be available medical records that are not associated with the claims folder, a remand is required. See 38 C.F.R. 3.159(c)(1). The factual issue in this case is whether the Veteran has a current respiratory disability, including asthma or sinusitis, related to her active military service, and the private treatment records may contain information related to the onset, nature and etiology of the Veteran's respiratory problems. As such, the records are potentially pertinent, and should be obtained. Furthermore, the law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Indeed, VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records, reasonably identify their location and provide a release to obtain the records. If the claimant does not provide the release, VA is to request that the claimant obtain the records and provide them to VA. 38 C.F.R. § 3.159(e)(2) (2012). Here, after becoming aware of the private treatment records the Veteran reported in her April 2010 VA Form 9, VA has also not had an opportunity to follow the procedures outlined in 38 C.F.R. § 3.159(e)(2). In the event that the records are obtained, on remand the Agency of Original Jurisdiction (AOJ) shall consider such evidence in conjunction with the evidence already of record determine whether any additional development, such as a VA examination and/or opinion, may be necessary to fully and fairly adjudicate the claims remaining on appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any additional VA medical records that may have come into existence since January 2012. 2. An authorization should be obtained from the Veteran so that an effort can be made to obtain all records of treatment from Sentra Urgent Care, or other private source medical treatment that the Veteran may identify. If the records are not available, the Veteran should be informed of this fact. If the Veteran fails to provide the requested authorization, request that the Veteran obtain the records and provide them to VA. 3. After giving the Veteran full opportunity to supplement the record and undertaking any other development deemed appropriate in conjunction with any evidence obtained (such as affording the Veteran an opportunity to attend a VA examination), the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished with a supplemental statement of the case, given the opportunity to respond thereto, and the case should thereafter be returned to the Board if warranted. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs