Citation Nr: 1314757 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 06-31 999A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a prostate disorder, claimed as benign prostatic hyperplasia (BPH). 2. Entitlement to service connection for a neck disorder. 3. Entitlement to an evaluation in excess of 10 percent disabling, for the period prior to May 2, 2012, and in excess of 50 percent disabling, for the period beginning May 2, 2012, for bilateral pes planus. 4. Entitlement to a compensable evaluation for sinusitis. 5. Entitlement to an initial evaluation in excess of 10 percent disabling for mitral valve stenosis and borderline left ventricular hypertrophy. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to January 1976. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from March 2006, June 2008, and July 2012 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). During the pendency of the appeal, a January 2009 rating decision assigned a 10 percent evaluation for bilateral pes planus, effective the date the claim for an increased evaluation was received, and a January 2013 rating decision assigned a 50 percent evaluation for bilateral pes planus, effective May 2, 2012. In May 2012, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a total disability rating based on individual unemployability (TDIU) in increased-rating claims when the issue of unemployability is raised by the record. The Board notes that entitlement to TDIU has been raised by the record in a May 2012 private medical report regarding, in part, the Veteran's claim for an increased evaluation for pes planus. Thus, under Rice, the Board has jurisdiction over the Veteran's TDIU claim, and for the purpose of clarity has separately captioned the issue on the title page. In May 2012 a private provider reported that the Veteran's "flatfeet and physical trauma during military service, as noted in his records, caused, contributed, and/or aggravated his ankles . . . and neck pain and degeneration." As such, the Board finds that the issues of entitlement to service connection for an ankle disorder, to include as secondary to pes planus, and entitlement to a back disorder, to include as secondary to pes planus, have been raised by the record. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for a neck disorder, entitlement to an evaluation in excess of 10 percent disabling, for the period prior to May 2, 2012, and in excess of 50 percent disabling, for the period beginning May 2, 2012, for bilateral pes planus, and entitlement to an initial evaluation in excess of 10 percent disabling for mitral valve stenosis and borderline left ventricular hypertrophy 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. The Veteran's current prostate disorder was not manifested in service and is not related to the Veteran's active service. 2. During the entire period on appeal the Veteran's sinusitis manifested symptoms of four to five non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 3. At no point during the period on appeal did the Veteran's sinusitis manifest symptoms of more than six non-incapacitating episodes or three or more incapacitating episodes requiring the prolonged antibiotic use. 4. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Prostate disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for a 10 percent disability rating, and no higher, for sinusitis are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code 6512 (2012). 3. The criteria for an award of TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a claim for an increased evaluation, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of letter sent to the appellant on August 2005 and May 2008 that fully addressed all notice elements and was sent prior to the initial AOJ decisions in these matters. The letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. In regard to the Veteran's claim for service connection for a prostate disorder, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The Veteran submitted relevant private treatment records from Drs. I.S., M., D., and V.P., and was provided an opportunity to set forth his or her contentions during the hearing before the undersigned Veterans Law Judge. The appellant was afforded VA medical examinations in March 2007, May 2008, May 2011, May 2012, and August 2012. Relevant to the issues of entitlement to service connection for a prostate disorder, claimed as benign prostatic hyperplasia and entitlement to a compensable evaluation for sinusitis, in July 2012 the Board remanded the Veteran's claims for additional VA treatment records to be obtained and associated with the claims file and for the Veteran to be afforded VA medical examinations. Subsequent to the Board's remand, additional VA treatment records were obtained and associated with the claims file and the Veteran was afforded VA medical examinations in August 2012. Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand with regard to the issues of entitlement to service connection for a prostate disorder, claimed as benign prostatic hyperplasia and entitlement to a compensable evaluation for sinusitis. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court held in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked-are not impacted by the Veteran's receipt of a VCAA-compliant notice letter. Here, during the hearing, although the Veterans Law Judge did not explicitly note the bases of the prior determinations or note the elements that were lacking to substantiate the Veteran's claims, the Veteran's representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's sinusitis condition had become more severe and that the Veteran's prostate disorder was related to his active service. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Accordingly, the Veteran is not shown to be prejudiced on this basis. In addition, the Veterans Law Judge sought to identify any pertinent, outstanding evidence that might have been overlooked. The Veterans Law Judge specifically asked the Veteran where he received his treatment, and the Veteran responded that he received treatment at VA. Accordingly, the Veteran is not shown to be prejudiced on this basis. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Service Connection The Veteran seeks entitlement to service connection for a prostate disorder. The Veteran contends that his current prostate disorder is related to in service urinary tract infections and prostatitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In December 1974 the Veteran was assessed with a urinary tract infection and a urinalysis was ordered. The urinalysis was negative. In January 1975 the assessment give was rule out urinary tract infection. In April 1975 the Veteran was diagnosed with prostatitis. Post service the Veteran was first diagnosed with BPH in June 2001. In October 2006 the Veteran's prostate was noted to be mildly enlarged on examination. The Veteran underwent a VA Compensation and Pension (C&P) genitourinary examination in March 2007. The Veteran was relevantly noted to have a history of burning and dribbling at times on a genitourinary worksheet. He did not have any incontinence. He had no surgical procedures and reported that he had several urinary tract infections while he was in the service. He stated that he had to use Levitra to have erections. He reported some erections without Levitra but that these were insufficient for vaginal penetration with ejaculation. The rectal examination was omitted. The Veteran was assessed with erectile dysfunction. At a hearing before a Decision Review Officer in January 2010 the Veteran reported that he was treated in service in April 1975 for prostatitis and that he had been treated chronically since service. He indicated that he had numerous treatments since service. He reported that he was treated for BPH and was on medication. At a hearing in May 2012 before the undersigned Veterans Law Judge the Veteran reported that he felt he should be service connected due to his multiple urinary tract infections in service. He reported that he was treated with antibiotics on numerous occasions for these infections. In August 2012 the Veteran was afforded a VA C&P examination. The Veteran was diagnosed with BPH. The Veteran complained of occasional burning on urination, incomplete voiding, nocturia, ongoing since discharge from the military in 1974. Clinic notes were indicated to suggest evaluation and treatment for BPH at least since 2001. The Veteran reported erectile dysfunction since 1995. He had never been hospitalized nor had surgery for his prostate. After physical examination the examiner rendered the opinion that the Veteran's claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that the Veteran had treatment one time in service for prostatitis and that he did not have a history of urinary tract infection but he did have BPH for which he was taking medication. The examiner noted that the claim that BPH was caused by urinary tract infections is not valid. The examiner provided a review of the medical records. The examiner noted that a genitorurinary examination dated in April 2007 indicated that there was no relevance between the Veteran's in service prostate condition and his post service prostate condition. In addition, the examiner noted that the Veteran was treated for prostatitis in service in 1975 and although noted to have burning upon urination without discharge in December 1974, urinalysis was negative. The Board finds that entitlement to service connection for a prostate disorder is not warranted. The Board acknowledges that the Veteran's service treatment records indicate that the Veteran was treated for prostatitis and indicate an assessment of urinary tract infection that thereafter urinalysis was noted to be negative. After separation from service the Veteran was diagnosed with BPH starting in June 2001. The Board further acknowledges that the Veteran has reported that he has been treated chronically for prostatitis since separation from service and that he was treated for BPH. However, the Board notes that review of the claims file does not reveal chronic treatment for prostatitis or BPH since separation from service. In addition, the Veteran has stated that he believes that his prostate disorder is related to treatment for urinary tract infections in service; however, after examination in August 2012 the examiner opined that the Veteran did not have a history of urinary tract infections and noted that the Veteran was treated for prostatitis in service in 1975 and although noted to have burning upon urination without discharge in December 1974, urinalysis was negative. The examiner in August 2012 rendered the opinion that the Veteran's prostate disorder was not at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. Therefore, as the preponderance of the evidence is against a finding that the Veteran's prostate disorder is related to the Veteran's active service, entitlement to service connection is denied. III. Higher Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks a compensable evaluation for sinusitis. The Veteran's service-connected sinusitis is currently evaluated as noncompensable under 38 C.F.R. § 4.97, Diagnostic Code 6512. The General Rating Formula provides that where sinusitis is detected by X-ray only, a noncompensable disability is to be assigned. A 10 percent disability rating is warranted where there are one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis. The maximum 50 percent disability rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6512. A note following the General Formula defines an "incapacitating episode" as one that requires bed rest and treatment by a physician. Id. In September 2006 the Veteran was noted to have allergies and sinus congestion. In March 2007 the Veteran underwent a VA C&P examination. The Veteran reported that after exposure to chemicals in the chemical warfare simulation chamber and exercises in service, he began to experience baseline allergies consisting of nasal congestion, post-nasal drip, frontal sinus pressure, and frequent throat clearing. He was noted to have been treated with Loratidine with minimal success. He stated that he experiences these baseline allergy symptoms on a daily basis. On top of these allergy symptoms, the Veteran reported experiencing approximately four sinus infections a year, where he experiences headache and thick mucopurulent discharge from the nose in addition to the other symptoms. He stated that he misses approximately 60 days of work a year due to his allergies and sinus infections. The Veteran reported difficulty breathing through his nose. He had prulent discharge four times a year when he had his sinusitis attacks. He did not experience dyspnea at rest. His speech was impaired by throat clearing; however, he does not become hoarse from his allergies or sinusitis. The disease did not affect the soft palate. The examiner noted that apparently the Veteran's sinusitis affected his frontal and ethmoid sinuses. Physical examination revealed ears clear to otoscopy. There was no perforation or effusion in the tympanic membrane. The nasal mucosa was moist and did not appear especially boggy. There were no nasal polyps. There was no evidence of drainage at that time. The veteran did not have sinus tenderness at that time. The oral cavity had no masses or lesions. The posterior oropharynx was clear. The neck did not reveal any masses or lymphadenopathy. In July 2007 an addendum to the March 2007 VA C&P examination was provided. The examiner stated that due to the onset of the Veteran's symptoms, it is likely as not that the Veteran's condition is caused by, or the result of his military service, and this should be reworded with the diagnosis that due to the Veteran's history, this condition, chronic sinusitis and rhinitis, is as likely as not related to his military service. The diagnosis of chronic sinusitis and chronic rhinitis was rendered. In February 2008 the Veteran was treated for complaints of right ear pressure and ringing. He had a floating feeling and whoosh with fast movements of the head. He complained of sinus pressure with post nasal drip. Headaches feel as if the eyes were hurting. The Veteran was assessed with sinusitis. The Veteran was afforded a VA C&P examination in May 2008. Relevantly the Veteran reported that he had sinus problems four times a year with each episode lasting two weeks. He is incapacitated once a year lasting one week. He experienced headaches with his sinus episodes. It was noted that no antibiotic treatment lasting four to six weeks was needed for his sinus problem. He reported interference with breathing through the nose, purulent discharge from the nose, pain and crusting. He had no hoarseness of the voice. He had these symptoms four times a year and it is associated with pain around the eyes. It occurred mostly during the fall and spring time. He reported Flunisolide for allergies and sinus. The response to this treatment was noted to have been good. He reported no side effects from this treatment. Treatment has also included Loratadine for allergies and sinus and the response was noted to have been good. There have been no side effects. He reported that the symptoms started after being placed in a gas simulation chamber. He reported that he has to avoid being near pollen, grass, dust, mold and pet hair. Examination of the head, ears, nose, and throat relevantly revealed nasal obstruction of the right nostril of 30 percent and of the left nostril of 60 percent. Nose examination did not reveal deviated septum, loss of part of the nose, loss of part of the ala, a scar, obvious disfigurement and nasal polyps. The findings of diffuse nasal mucosal erythema and swelling were noted in both nostrils causing nasal obstruction. There is rhinitis present and it was believed to be allergic in origin because mucosal swelling with erythema was noted to but no secretions were present. No sinusitis was detected. A sinus x-ray was not performed. The Veteran was diagnosed with allergic rhinitis and the subjective factors noted above were reiterated. The Veteran was noted to have required antibiotics for treatment but was currently on Loratadine and a nasal steroid spray. The condition was aggravated by pollen, grass, dust, mold, and pet hair. The objective factors noted above were reiterated. The Veteran was diagnosed with sinusitis. The Veteran had problems four times a year that last two weeks. He had difficulty breathing through his nose, thick nasal discharge, crusting, and pain. He has requested antibiotics for treatment but was currently on Loratadine and a nasal steroid spray. The condition was aggravated by pollen, grass, dust, mold, and pet hair. The objective factors noted above were reiterated. There was no finding of bacterial rhinitis. In June 2008 diagnostic imaging revealed the visualized paranasal sinuses appear to be well pneumatized and clear. In September 2008 the Veteran was diagnosed with allergic rhinitis. He continued to complain of nasal congestion and thick, whitish yellow mucous production that comes out the nose and down the back of the throat. He reported that congestion was worse in the morning when he awakens. The Veteran was noted to have not been compliant with his medication. He was using a nasal steroid spray sporadically for the prior three months. He reported that the Loratidine seemed to mildly improve his symptoms. He denied any purulence of nasal discharge and denied any recent fevers. In December 2008 the Veteran reported sinus pain, frontal headaches, eyes running, trace amounts of blood, and yellow/white mucous from nose. His symptoms persisted chronically but had worsened in the prior three days. He reported that his symptoms worsen when working around dirt, etc. In June 2009 the Veteran was assessed with chronic sinusitis with acute worsening of congestion. In July 2009 the Veteran underwent a follow up for allergic rhinitis. The Veteran complained of symptoms of nasal congestion and thick clear/white nasal discharge. He had moderate control of symptoms with his medical regimen. At a hearing before a DRO in January 2010 the Veteran reported that he was congested all the time and that he had mucus drainage down his throat. He reported pain in his eyes above his forehead. He reported that he was prescribed antibiotics in the prior year. He stated that he had the sinus problems for at least four to six weeks. He also reported that he had his symptoms constantly. In March 2010, Dr. I.S. reported that upon examination via nasopharyngoscipy the Veteran was found to have normal true vocal cord mobility with erythema and edema. He had massive intranasal edema with a right deviated nasal septum and bilateral inferior turbinate hypertrophy. He was diagnosed with allergic rhinitis and gastroesophageal reflux disease. In April 2010 the Veteran was treated for complaints of sinus pressure, headaches, popping in the left ear, sneezing, and coughing up green mucous. The assessment rendered included sinusitis and vertigo. In November 2010 the Veteran received follow up care for allergic rhinitis. His main symptoms were headaches, dry burning eyes, dry throat, and post nasal drainage. He occasionally had itchy and watery eyes, runny nose, and sneezing. He had a somewhat itchy nose. He had nasal congestion and difficulty wearing a CPAP. In May 2011 the Veteran underwent a VA C&P sinus examination. The Veteran was noted to have sinus symptoms of purulent nasal discharge and sinus pain. The Veteran was noted to be followed for allergic rhinitis. His main symptoms were headaches, dry burning eyes, dry throat, and post nasal drainage. He occasionally had itchy and watery eyes, runny nose, and sneezing. He had a somewhat itchy nose. He had nasal congestion and difficulty wearing a CPAP. There was no shortness of breath or wheezing. He was prescribed Fexofenadine daily and Fluticasone daily. He sometimes used sinus rinses. He had skin testing completed in May 2009 that was positive to only dust mites. Symptoms were noted to be year round but worse in the winter and spring. The symptoms were triggered by dust. He washed his sheets in hot water. He reported no dust mite covers. Physical examination revealed crusting of all sinuses. There was no evidence of active disease, no soft palate abnormality, and no speech impairment. There was no sight of nasal obstruction. There were nasal polyps. There was no septal deviation. There was permanent hypertrophy of turbinates from bacterial rhinitis. There was no rhinoscleroma present. There was no tissue loss, scarring or deformity of the nose. There was no evidence of Wegener's granulomatosis or granulomatous infection. There had not been a laryngectomy. There were no residuals of an injury to the pharynx. The results of a March 2011 x-ray were reported. The Veteran was noted to be unemployed. He indicated that he was unemployed due to orthopedic problems. In November 2011 the Veteran was noted to be diagnosed with allergic rhinitis. He was recently placed on antibiotics for sinusitis two weeks prior and had returned for a follow up visit. He is using Oxymetazoline twice daily, Fluticasone BID, and Singulair. His symptoms of rhinorrhea, cough, congestion, burning eyes, and headache has not improved. In January 2012 the Veteran was noted to have symptoms of nasal congestion and rhinorrhea, post-nasal drip (PND), sneezing, mild cough, and dry, itchy, burning eyes. He also experienced watery discharge with temperature changes and eating. He was noted to have had skin tests done three years prior that were positive for dust. He worked around a lot of dust as a contractor. At a hearing in May 2012 before the undersigned Veterans Law Judge the Veteran reported that he has four incapacitating episodes a year. He stated that he is constantly on medication and that he has to use a decongestant to sleep at night. He reported nasal discharge and headaches. The Veteran reported that he was seen by ophthalmology the prior year and indicated that his condition had gotten worse. He reported that it was hard for him to breath and that he had a CPAP. He reported that he had been prescribed antibiotics for his sinusitis at least once or twice a year. In May 2012 the Veteran was noted to have sinusitis. He was told to try nasal rinses and he had eye issues from nasal steroids due to spraying them straight into his nose. In a report of an examination ordered by the VA dated in May 2012 the Veteran was noted to not have chronic sinusitis. The Veteran was to have had four non-incapacitating episodes in the prior 12 months. He was noted to have two incapacitating episodes (requiring bed rest and treatment prescribed by a physician) in the prior 12 months. He did not have any surgery. In August 2012 the Veteran was afforded a VA C&P examination. The Veteran was noted to be diagnosed with allergic rhinitis. The Veteran complained of hoarseness, rhinitis, sore throat, frontal headaches, watery eyes, sneezing, exertional dyspnea, and he slept well at night with CPAP and decongestants. He did not feel that his symptoms had worsened in the prior year and stated that he had a bad episode of head congestion four weeks prior. He reported that he usually had four or five of these a year and that once or twice a year he takes antibiotics. The Veteran was not examined for sinusitis. The examination of rhinitis revealed that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. He did not have complete obstruction on one side due to rhinitis. There was no permanent hypertrophy of the nasal turbinates. There were nasal polyps. Larynx and pharynx conditions were discussed. He had no deviated nasal septum and there was not complete obstruction of one side due to traumatic septal deviation. He did not have any benign or malignant neoplasm or metastases relating to any of the diagnoses. There were no scars. Computed tomography in March 2011 was noted to reveal small polyp versus retention cyst in the left maxillary sinus, minimal mucosal thickening in the right maxillary sinus. Nasal endoscopy did not reveal any masses or other abnormalities. Laryngeal endoscopy revealed erythema and edema of the entire posterior largopharynx, oropharynx, and nasopharynx. There was no mucosal irregularities. The Board finds that entitlement to an evaluation of 10 percent disabling, and no higher, is warranted for sinusitis for the entire period on appeal. During the entire period on appeal the Veteran's sinusitis disability manifested symptoms of four to five non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. However, at no point during the period on appeal did the Veteran's disability manifest symptoms of more than six non-incapacitating episodes or three or more incapacitating episodes requiring the prolonged antibiotic use. The Veteran has reported that he has been treated constantly with antibiotics; however, he was also noted to report in August 2012 that he only took antibiotics once or twice a year. As the evidence of record most nearly approximates an evaluation of 10 percent disabling, and no higher, for sinusitis, entitlement to an evaluation of 10 percent disabling, and no higher, for sinusitis is granted. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability. The established rating criteria reasonably provide for ratings based on level of severity of symptoms. The Board finds that the incidents of non-incapacitating and incapacitating episodes, as well as the symptoms headaches, pain, and purulent discharge or crusting encompass the Veteran's symtoms. The evidence does not reflect that the Veteran has symptoms which would be outside of the broad rating criteria Referral for extraschedular consideration is not warranted. III. TDIU As noted above, the issue of entitlement to a TDIU has been raised by the record. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (2012) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities include the following: pseudofolliculitis barbae, evaluated as 60 percent disabling; bilateral pes planus, evaluated as 50 percent disabling; right hip osteoarthritis associated with bilateral pes planus, evaluated as 10 percent disabling; left hip osteoarthritis with avascular necrosis associated with bilateral pes planus, evaluated as 10 percent disabling; osteoarthritis of the right knee associated with bilateral pes planus, evaluated as 10 percent disabling; osteoarthritis of the left knee associated with bilateral pes planus, evaluated as 10 percent disabling; mitral valve stenosis and borderline left ventricular hypertrophy, evaluated as 10 percent disabling; great toe fracture, left foot with degenerative joint disease, evaluated as 10 percent disabling; chronic rhinitis, evaluated as 10 percent disabling; and sinusitis, evaluated as 10 percent disabling pursuant to this decision. The RO has assigned a current combined disability evaluation of 80 percent, effective June 15, 2006. The Board notes that as the Veteran's pseudofoliculitis barbae has been evaluated as 60 percent disabling since June 15, 2006, and as the RO has assigned a combined disability evaluation of 80 percent, effective June 15, 2006, the Veteran meets the schedular criteria for a TDIU beginning June 15, 2006. See 38 C.F.R. § 4.16, 4.25. In November 2010 the Veteran was noted to work as a contractor and that his symptoms were worse with exposure to dust and paint. In a VA examination report dated in May 2011 the Veteran reported that his usual occupation was construction. He stated that he had been unemployed since March 2010 due to orthopedic problems. In another VA examination dated in May 2011 the Veteran reported that he was unable to work and that his employment was as a painter. In a VA treatment note dated in January 2012 the Veteran reported that "[h]is job is as a contractor, and he works around a lot of dust, which makes his [symptoms] worse." The Veteran was encouraged to use a mask at work to help decrease dust exposure. In a private medical report from the Veteran's podiatrist dated in May 2012, the provider reported that the Veteran's "primary complaint is chronic pain with standing, walking, and activities secondary to his severe service connected flatfeet and lower extremity biomechanical dysfunction/abnormalities." The provider continued to state that "it is my opinion that [the Veteran] is totally and permanently disabled due to the above discussed conditions" and "[t]his [V]eteran cannot hold gainful employment as a result of his service connected disabilities." After examination in August 2012 a VA examiner rendered the opinion that the Veteran's flatfoot, sinus, and nose conditions do not impact on the Veteran's ability to work. However, it is unclear whether the examiner considered these disabilities in aggregate. In a disability questionnaire signed by the Veteran's podiatrist in September 2012 the provider opined that the Veteran's flatfoot condition impact on his ability to work and stated that the Veteran has an "inability to stand, walk, climb, or carry effectively due to feet, ankle, knee, hip, and back conditions related to his flatfeet condition." The Board finds that entitlement to a TDIU is warranted. As discussed above, the evaluations of the Veteran's service connected disabilities meet the schedular criteria for a TDIU. Although a VA examiner has rendered the opinion that the Veteran's service-connected pes planus, sinus, and nose disabilities do not impact on the Veteran's ability to work, a private provider has indicated that the veteran is unemployable due to service-connected disabilities and has identified the service-connected disabilities as flatfoot and lower extremity biomechanical dysfunction/abnormalities. Affording the Veteran the benefit of the doubt, the evidence is at least in equipoise that his service-connected disabilities render him Veteran unable to hold gainful employment, thus entitlement to a TDIU is granted. ORDER Service connection for a prostate disorder, claimed as benign prostatic hyperplasia, is denied. Entitlement to an evaluation of 10 percent disabling, and no higher, for the entire period on appeal for sinusitis, is granted, subject to the regulations applicable to the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMAND The Veteran seeks entitlement to service connection for a neck disorder. In July 2012 the Board remanded the Veteran's claim for the Veteran to be afforded a VA medical examination. The Board specifically requested that the examiner discuss the Veteran's lay assertions of continuous post-service symptoms. The Board noted that this lay evidence is highly relevant to the Veteran's claim and must be considered. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Pursuant to the Board's remand, the Veteran was afforded a VA medical examination in August 2012. In the medical history the examiner noted that the Veteran's symptoms consisted of sharp pain, stabbing lower part of the neck and burning pain mainly sitting at a computer. It was reported that no symptoms related to degeneration of the spine and that the Veteran had a multitude of other complaints of myofascial pain unrelated to his neck. He had no symptoms specifically related to his cervical spine. He was noted to take Ketotifen and Tramadol that helped a little. After examination the examiner rendered the opinion that it was less likely than not that the Veteran's condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: First it must be noted that he has mild diffuse age related degenerative disc disease. He has no related symptoms. All his complaints are myofascial and not confined to his neck. He relates pain in shoulders, upper back, and arms. As far as secondary connection to pes planus, he has no symptoms related to pes planus. There would be no [nexus] connection anyway. Since he has no symptoms of pes planus this also would not be an aggravating factor. SMR - He was seen [March 1974] for neck pain related to lifting with a normal exam. He had no followup. There is no specific post service indication of a chronic problem. His current symptoms are either myofascial or somatic. Considering the Waddels sign I would [believe] they are more somatic. However, the examiner did not discuss the Veteran's lay assertions of continuous post-service symptoms in rendering the opinion. As such, the Board finds the examination to be inadequate and must remand the claim for the Veteran to be afforded another VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (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.); Stegall v.West, 11 Vet. App. 268, 271 (1998) (Remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.). In July 2012 the Board remanded the Veteran's claim for a higher evaluation for pes planus. Subsequently, in a RO rating decision dated in January 2013 the evaluation of the Veteran's pes planus was increased from 10 percent disabling to 50 percent disabling, effective May 2, 2012. The Board notes that this does not represent a complete grant of the benefits sought as it does not represent a grant of the highest schedular evaluation available for the period prior to May 2, 2012, and the Veteran may also be entitled to a higher evaluation on an extraschedular basis for the period beginning May 2, 2012. As such, the issue remains on appeal before the Board as characterized above. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thereafter, the AOJ did not issue a Supplemental Statement of the Case regarding the issue of entitlement to an evaluation in excess of 10 percent disabling, for the period prior to May 2, 2012, and in excess of 50 percent disabling, for the period beginning May 2, 2012, for pes planus as required by regulation and ordered by the Board in the July 2012 remand. Therefore, the Board has no discretion and must remand the issue for the Veteran to be issued a Supplemental Statement of the Case regarding this issue. 38 C.F.R. § 19.31(c) (2012); Stegall v.West, 11 Vet. App. 268, 271 (1998). In July 2012 the RO implemented the Board's July 2012 grant of entitlement to service connection for mitral valve stenosis and borderline left ventricular hypertrophy and assigned an evaluation of 10 percent disabling, effective August 4, 2005. Subsequently, in March 2013 the Veteran submitted a notice of disagreement with the initial evaluation awarded. To date the Veteran has not been provide a Statement of the Case regarding this issue. Therefore, under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Since the claims file is being returned it should be updated to include VA treatment records compiled since July 2012. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a Statement of the Case with respect to his claim seeking entitlement to an initial evaluation in excess of 10 percent disabling for mitral valve stenosis and borderline left ventricular hypertrophy, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. The appellant should be allowed the requisite period of time for a response. 2. Associate with the claims folder VA medical records pertaining to the Veteran that are dated from July 2012. 3. Then, schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any disability of the neck that may be present, to include degenerative joint disease of the cervical spine. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), the clinical evaluation, and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current condition of the neck, to include degenerative joint disease of the cervical spine, is causally related to any of the neck findings or injuries reflected in the Veteran's service treatment records. The examiner is requested to provide a rationale for any opinion expressed. The examiner must consider the Veteran's lay statements regarding inservice symptoms and post-service continuity of symptoms. 4. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and current level of severity of the Veteran's service-connected bilateral pes planus. The claims file must be made available to the examiner. The examination should comply with AMIE protocols for the appropriate examination. A complete rationale for all opinions expressed must be provided. 5. Then, readjudicate the Veteran's issues on appeal. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs