Citation Nr: 1319256 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-13 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for low back strain. 2. Entitlement to service connection for sinusitis, to include as secondary to the service-connected bronchial asthma. 3. Entitlement to service connection for obesity, to include as secondary to the service-connected bronchial asthma. 4. Entitlement to service connection for flat feet/cysts on feet, to include as secondary to the service-connected bronchial asthma. 5. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU rating). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from February 1971 through December 1975. This matter comes before the Board of Veterans' Appeals (Board) in part from a December 2005 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a low back strain. This matter further comes before the Board from a November 2010 rating decision in which the RO denied service connection for sinusitis, obesity, and flat feet/cysts, and denied entitlement to a TDIU rating. In the prior remand, the Board concluded that the issue currently on appeal was entitlement to service connection for a low back strain (rather than whether new and material evidence was submitted to reopen that claim), because the claim for service connection for low back strain was appealed to the Board, but not previously certified to the Board, and therefore the service connection issue was still in proper appellate status. In December 2010, the Board remanded the claim for service connection for low back strain for further development, to include sending the Veteran a VCAA notice letter for the claim for service connection for a low back condition and determining whether further development of the evidence was warranted, and if so, to conduct such development. The record reflects that the Veteran was sent a VCAA notice letter in January 2011 from the Appeals Management Center (AMC), and it attempted to obtain additional private treatment records as requested by the Veteran. Thereafter, an explanatory SSOC was issued in January 2012. The Board concludes that there was substantial compliance with the remand directives of December 2010. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for sinusitis and entitlement to a TDIU rating are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The competent and probative medical evidence of record preponderates against a finding that the Veteran has a low back disorder that may be related to a period of active military service. 2. Obesity is not a disease or injury that may be considered a disability for VA compensation purposes. 3. The preponderance of the evidence is against a finding that the Veteran's flat feet or cysts on the feet had an onset in service, or are otherwise related to active service or to a service-connected disability, on either a causation or aggravation basis. CONCLUSIONS OF LAW 1. A low back disorder, to include low back strain, was not incurred in or aggravated by a period of active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. There is no probative evidence of an obesity-related disability for VA compensation purposes. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Flat feet and/or cysts on the feet were not incurred in or aggravated by the Veteran's active service, and are not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). However, the United States Supreme Court (Supreme Court) reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in September 2005, August 2007, October 2008, April 2010, and January 2011, that fully addressed the notice elements in this matter. These letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board also notes that in the letters dated in April 210 and January 2011, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims decided herein. The RO has obtained all identified and available service and post-service treatment records for the Veteran, to include records from the Social Security Administration (SSA). During the course of this appeal, the Veteran indicated that he receives Social Security disability payments, and thereafter, the RO requested and received his records from the SSA. With regard to the claims for service connection for obesity and flat feet, the Board notes that VA examinations were not obtained. Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claims for service connection, there is competent medical evidence of a current disability of flat feet and other foot problems; however, there is no indication of any problems with this in service, other than the Veteran's current statements. Further, the record tends to show that flat feet developed many years after active service, and were attributed to other causes. With regard to obesity, as explained below this is not considered a disability for VA compensation purposes. Thus, while the Veteran's medical records do show that he has been assessed as being obese, there is no current disability shown. For these reasons, the Board finds that a VA examination was not necessary for the claims for service connection for flat feet/cysts of the feet and for obesity. With regard to the claim for service connection for a low back disorder, the Board obtained a VHA opinion regarding the probable etiology of the Veteran's low back disorder. This VHA report included a review of the claims folder and acknowledgement of the Veteran's reported history regarding his low back; in addition, findings were reported based on a review of the record, along with diagnoses/opinions, which were supported in the record. Thus, the VHA report dated in June 2012 is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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); Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection Claims Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In that regard, the Board notes that the three issues on appeal considered herein are not listed as chronic under 38 C.F.R. § 3.309(a). And while arthritis is listed under 38 C.F.R. § 3.309(a), there is no indication that arthritis of the low back has been diagnosed. Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) ; 38 C.F.R. § 3.303(d) . Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Lay statements 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); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, including the probable etiology of a low back disorder or flat feet, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In evaluating the evidence in any appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Low Back Disability a. Factual Background Service treatment records (STRs) show that in April 1972, the Veteran was seen for lumbosacral strain. In May 1975, he was seen after being involved in a traffic accident, and he complained of pain on the right side of the chest and the left lower back. He reported that either the seat belt or striking the steering wheel may be the origin of the pain. The impression was myalgia secondary to trauma. X-rays of the chest and lumbosacral spine were negative for any significant abnormality. Eight days later the Veteran was seen again for complaints of left low back pain and right neck pain, and the assessment was muscle spasm. On separation examination in November 1975,the Veteran's spine was evaluated as clinically normal. VA treatment records showed that in June 1996 the Veteran was seen for complaints of severe back pain. He reported he had reinjured his back the day prior, and that the original injury was from a fall three years prior. The diagnosis was low back pain and muscular spasm. In October 1996, he complained of lower back pain that radiated down the left leg. He reported having pain in his back three weeks prior while bending, and that recently the pain shifted to his left leg and thigh. He reported he was a barber and stood for long periods of time and the plan was for him to try to decrease his work hours, and if no relief they would consider an x-ray and referral to physical therapy. The diagnosis was low back pain. On VA examination in December 1997, the Veteran reported he first noticed low back pain in service in 1971 while doing exercises. He claimed his low back symptoms gradually increased but he denied any specific injury. He was treated with anti-inflammatory medications and muscle relaxants. The diagnosis was lumbar strain. An x-ray of the lumbosacral spine was within normal limits. Received from the Veteran in January 1999 was his notice of disagreement (NOD), in which he reported he was injured in service, which was supported by his service treatment records which showed a diagnosis of low back strain in April 1972 and a diagnosis of myalgia (muscular pain) in the low back area in May 1975. He reported he continued to complain about back pain up until his discharge. In September 1999, the Veteran testified that he sustained two injuries to his low back while on active duty, but could not remember details of the initial injury, but that the second injury occurred about 1973 when he was involved in an MVA (motor vehicle accident). He claimed he received treatment for his back from a private physician during his active service, from the time of the second injury to approximately 1976, but indicated that these records were not available and he did not recall if a diagnosis of a back disorder was given by this doctor, Dr. Marvin. He testified he did not know why he did not claim compensation for his back injury at the time of his initial application in December 1975, but thought it may have been because although the Veteran filed an appeal for that issue, he was focused on his respiratory problems at the time. In a letter dated in June 2011, a representative from Marvin's Midtown Chiropractic Clinic, advised that they only maintained records for 7 years, and that the Veteran's reported treatment (from 1973 through 1990) was outside that 7 year window. In a letter, dated in June 2011, J.M., the assistant office manager for Marvin's Midtown Chiropractic Clinic, advised that the Veteran was a patient from 1973 through the 1990s and had a lower back condition. J.M. advised he was aware of the Veteran being a patient then because J.M. had worked there for 35 years. In June 2012 a VA physician provided a VHA opinion in this matter. The VA physician first noted that on VA examination in October 1996 the Veteran complained of back pain of 3 weeks duration, with onset after bending, and that on the VA examination in December 1997, he had a normal examination and x-rays revealed no abnormality of the spine. The VA physician concluded that from the time of the reported injury in 1975 until 1997, approximately 22 years, there was no indication of the development of significant degenerative changes nor was there evidence of neurologic deficit. The physician acknowledged that it had been reported that the Veteran received chiropractic treatment from 1973 (2 years prior to the reported motor vehicle accident) until 1990, but that x-rays made in 1997 (7 years after the end of the reported chiropractic treatment) were reported to be normal. Further, the physician noted that from 2005 through 2008, the Veteran was seen repeatedly in VA outpatient clinics for treatment of other disorders, but these treatment records did not contain any complaints of low back pain. The physician also noted that there was no indication of any x-ray having been made subsequent to 1997, and there was no indication of a current examination. The physician opined that: (1) it was less likely as not that the Veteran's current complaints of low back pain were related to an injury or disorder incurred during active service from 1971 to 1975; (2) that it was less likely as not that an injury or disorder which caused the Veteran's current low back pain resulted from the Veteran's active service; (3) that it was less likely as not that an injury or disorder which caused the Veteran's current low back pain was present within one year following the Veteran's service discharge in 1975; and (4) that it was less likely as not that an injury or disorder which caused the Veteran's current low back pain had been chronic and continuous (even if intermittent) since his service separation in December 1975. b. Discussion The Veteran essentially contends that his current low back disorder is related to his active service, and that he has had low back symptoms since service. With regard to current disability, the Board notes that, as set out above, post-service treatment records show treatment for low back symptoms, and on the VA examination in December 1997 the diagnosis was lumbar strain. Thus, the record reflects that the Veteran arguably has a low back disability. In that regard, the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service treatment records (STRs) show that in April 1972 the Veteran was seen for lumbosacral strain, and that in May 1975, he was involved in a motor vehicle accident and had complaints of back pain. His spine was described as normal on his separation examination in November 1975. What is missing from the record is competent evidence showing that the Veteran's current low back disorder may be causally related to his active military service. 38 C.F.R. § 3.303. Post-service, VA treatment records showed that in June 1996 the Veteran was seen for severe back pain, and reported he had injured his back three years prior and had reinjured it. In October 1996, he again complained of low back pain. On the VA examination in December 1997, the diagnosis was lumbar strain, but no opinion was provided as to the probable etiology of that disorder. Thereafter, as noted above, in June 2012, a VHA medical opinion was obtained in which the VA physician essentially opined that the Veteran's current low back pain complaints were not related to service and were not incurred in the first year following his service discharge in 1975, and that it was less likely than not that an injury or disorder which caused the Veteran's current low back pain had been chronic and continuous since service separation in 1975. The Board finds that the VA physician's opinion in 2012, while somewhat awkwardly worded, was based on a review of the record and is probative and persuasive on the issue of whether the Veteran has a current low back disorder that may be related to service. Further, the VA physician provided evidentiary support in the record for the opinions provided. The Board also notes that the Veteran has not submitted any competent medical evidence to the contrary. The Board recognizes the Veteran has contended that his current low back symptoms and disorder are related to service, and that he has had low back symptoms since service. As noted above, lay statements may be competent 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. Likewise, the Veteran is competent to describe symptoms he has experienced - because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 465 (1994). However, the Board does not believe that the etiology of low back symptoms is subject to lay diagnosis, and, as a lay person, the Veteran is not competent to report that he has a current low back disorder that is related to service. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra; Kahana v. Shinseki, supra. The preponderance of the evidence is therefore against the claim of service connection for a low back disorder. Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, supra. 2. Obesity The Veteran contends that his obesity is caused by medications (steroids) that he takes for his service-connected asthma and for his non-service-connected diabetes. He also claims that due to his asthma he cannot exercise the way he wants. He also contends that his obesity aggravates his flat feet. STRs are negative for any complaint, treatment, or diagnosis of obesity during service. At his separation examination in November 1975, the Veteran did not report obesity, and it was noted that his height and weight were five foot ten inches and 180 pounds. On a VA examination in March 1976, the Veteran's weight was recorded as 175 pounds. Post-service VA treatment records do show that the Veteran has been described as morbidly obese, as early as December 1997. Likewise, it was specifically noted in the medical history of VA treatment records that the Veteran's morbid obesity had an onset in January 1998. However, the problem with this claim is that obesity is not considered a disability for VA purposes. The existence of a current disability to which symptoms are attributable is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). Also, in order to be considered for service connection, a claimant must first have a present disability. In Brammer, 3 Vet. App. at 225, the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. The Board recognizes that the SSA has determined that the Veteran is disabled under SSA regulations due to obesity. While, such determinations are evidence to be weighed and considered by VA, the SSA determination is not binding upon VA, as the criteria used by the SSA in such a decision are not the same as VA criteria. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Simply stated, obesity, or being overweight, which is a particularity of body type and/or a state of general health, alone, is not a disease or injury that may be considered a disability for VA compensation purposes; rather, it is basically a symptom. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Also, VA's Schedule for Rating Disabilities does not contemplate a separate disability rating for obesity. See 38 C.F.R. Part 4. Thus, in the absence of any probative evidence of a current disability, service connection cannot be granted for obesity. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225. The Board also notes that VA treatment records suggest that the Veteran's obesity is linked to his non-service-connected diabetes and/or diabetic medication, rather than to his service-connected asthma and/or asthma medication. Based on the foregoing, the preponderance of the evidence is against service connection for obesity, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102 . 3. Flat Feet/Cysts on Feet In his initial claim for service connection, received in March 2010, the Veteran indicated he was filing for service connection for "aggravated flat feet condition along with the residuals of that being cyst(s) on [his] feet". He claimed he had to wear braces on his feet, and the doctors had told him they could not operate on his feet because of his diabetes. He claimed that due to having to wear regulated boots in service, that this aggravated his already flat feet to the point of having constant pain and cysts growing, without the possibility of relief. VA treatment records show that during the course of the appeal, the Veteran has been noted to have flat feet and a ganglion cyst; thus, he has a current disability. STRs are negative for any report or finding of flat feet or cysts on the feet. On a VA examination in March 1976, examination revealed no foot pathology. Post-service VA treatment records show that the Veteran has had ongoing foot complaints. In May 1998, it was noted that the Veteran worked as a barber and stands all day, and that his feet hurt and he had plantar calluses on the plantar surface of the feet. In October 2009, he was seen for complaints of pain to the arch area and up into the ankle of both feet. He was noted to have posterior tibial tendon dysfunction (PTTD) and pes planus with over pronation. In November 2009, he reported continued severe pain to the arch, ankle, and up the leg. He reported he had not been able to walk sometimes. Examination showed his arch had decreased height, and he was advised to wear support with every step. In December 2009, he reported he had recently hurt his ankle and had not been walking, and that his feet had been swollen lately. In February 2010, he was seen for right foot pain, and he reported that for the last four to five months he had pain in the posterior aspect of his ankle and in the medial aspect of his foot. He denied acute trauma, but stated he did a lot of repetitive marching in service and felt this may have started his issues. He reported he underwent an MRI in December 2009 and that since then he had some improvement of symptoms. It was noted that the MRI in 2009 showed a posterior tibial ganglion cyst. X-rays taken that day showed mild calcification over the navicula, but no gross abnormalities or deformities. The assessment was that the Veteran had posterior tibial tendonitis as well as a ganglion cyst. In March 2010, it was noted that he had bilateral moderate pes planus with heel pronation, and posterior tibial tendon dysfunction on the right primarily. It was recommended that the Veteran get braces that were shoe-based. An x-ray of the feet taken in March 2010 revealed a plantar calcaneal spur and slight decrease of plantar arch. What is missing for this service-connected claim is competent medical evidence of a link between the Veteran's current pes planus and ganglion cyst, and his active service. 38 C.F.R. § 3.303. In that regard, the Veteran has not submitted or identified any competent medical evidence regarding any etiological relationship to service that would support such a claim, and as noted above, the Board has concluded that obtaining a VA examination on this point is not necessary to decide the claim. While the Veteran is certainly competent to report he has had right and left foot symptoms since service, as a lay person, he is not competent to report that his current pes planus and ganglion cyst are related to a period of active service or to those purported symptoms. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra; Espiritu v. Derwinski, supra. The Board also notes that the Veteran has contended that his obesity has aggravated his flat feet; however, as explained above service connection is not warranted for obesity and a claim for secondary service connection is moot. In light of this evidentiary posture (including consideration of the evidence of record; the length of time between the Veteran's discharge from service and the notation of flat feet and a cyst of the foot; and the absence of any medical opinion suggesting a causal link between flat feet and/or cysts of the feet and service), the Board finds that the preponderance of the evidence is against the claim of service connection for flat feet/cysts of the feet. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for low back strain is denied. Service connection for obesity is denied. Service connection for flat feet/cysts on feet is denied. REMAND 1. Sinusitis The Veteran essentially contends that his sinusitis is directly related to his service-connected asthma. He has also contended that he has been under constant care and taking sinus medication since service, and that he took allergy shots once a day while in service. He also claimed that the severe asthma he had can cause sinusitis. STRs show that in July 1972 he was treated for a cold with nasal congestion; however, there was no report or finding of sinusitis. On a VA examination in March 1976, there was no evidence of sinusitis. On a VA examination in November 2005, the Veteran reported having frequent sinus infections. Post-service VA treatment records show that in June 2006 he was treated for allergic sinusitis. In January 2009, he reported he had sinus congestion and headaches off and on, and it was not getting better. In February 2009, he complained of sinus congestion for three weeks, and the assessment was sinusitis. In May 2009, he was treated for increased asthma and sinus draining and cough for approximately three days. The examiner noted the Veteran likely had acute sinusitis with worsening of asthma. Post-service private treatment records from Dr. Kanarek, dated from 2003 through 2006, show that the Veteran received treatment related to allergies, and was also treated for sinusitis. As noted above, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Also, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). On a VA examination in July 2010, the diagnoses included acute sinusitis, episodic. The examiner opined that the Veteran's sinusitis was less likely as not caused by or a result of his asthma. For rationale, the examiner indicated that the Veteran's sinus infections seemed to be acute, as evidenced by treatment records, and could be caused by other factors. The examiner was unable to find in any literature to support acute sinusitis being caused by asthma. The examiner cited literature which indicated that sinus infections and sinusitis and asthma "go together". With regard to the VA examination provided in July 2010, the Board notes that 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. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). After reviewing the July 2010 VA examination report, the Board concludes that such opinion is inadequate for rating purposes, and another is warranted because although the VA examiner addressed whether the Veteran's sinusitis was related to the service-connected asthma, the report did not specifically address whether sinusitis was aggravated or worsened by the Veteran's service-connected asthma. Thus, a medical opinion on the question of whether the Veteran's sinusitis may have been aggravated by his service-connected asthma is needed. 2. TDIU Rating The Veteran essentially contends he is unable to maintain employment due to his service-connected disabilities of asthma and sleep apnea. The record reflects that the Veteran's bronchial asthma is rated 60 percent disabling, effective from July 26, 2005; his sleep apnea is rated as 50 percent disabling, effective from March 12, 2010; and he has a combined rating of 80 percent, effective from March 12, 2010. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system will be considered as one disability. 38 C.F.R. § 4.16(a)(3). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration includes education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 . In a letter dated in August 2005, the Veteran's private physician, Dr. Kanarek, indicated treating him on an ongoing basis for severe persistent asthma, and that it was difficult for the Veteran to keep his asthma under control because of his diabetes and GERD. Dr. Kanarek indicated that the Veteran's difficulty controlling his asthma coupled with an increase in asthma flares was debilitating to the Veteran. Dr. Kanarek opined that it had become increasingly difficult for the Veteran to maintain his daily activities and almost impossible for him to work a full time job. In a letter dated in March 2006, Dr. Kanarek indicated treating the Veteran for four years for moderate persistent asthma, allergic rhinitis, allergic conjunctivitis, and GERD. Dr. Kanarek opined that the Veteran was unable to work a full schedule or in a job that will cause irritation of his airways. A disability determination and transmittal revealed that in January 2010 the SSA found the Veteran to be disabled due to a primary diagnosis of obesity and a secondary diagnosis of asthma. Received from the Veteran in June 2010 was a formal claim for a TDIU rating (VA Form 21-8940), in which he reported his asthma, sleep apnea, and feet prevented him for securing or following substantially gainful employment. He reported that he last worked and became too disabled to work in February 2010, that he worked as a barber until February 2010, and that he left his last job because of his asthma, sleep apnea, and feet. He also reported that he tried to get training in other jobs, but due to his health he was unable to find work. He reported that not only did he suffer from asthma and inability to breathe correctly, but he also had sleep apnea and trouble with his feet, and that due to all of that he suffered from obesity. He also indicated he had recently been awarded SSD due to being unable to work due to these conditions. On a VA examination in July 2010, it was noted that the Veteran's usual occupation was as a barber, but he was currently unemployed but not retired, and his unemployment had been for less than a year. The reasons given for unemployment were "his conditions", which were listed as fallen arches, diabetes, IBS, HTN, sinuses, etc. The examiner noted that the Veteran's chronic bronchial asthma had significant effects on the Veteran's occupational activities because he had difficulty as a barber with chemicals and sprays which will cause a flare of his asthma. The Board notes that in the most recent October 2012 statement of the case (SOC), the RO indicated that the Veteran's bronchial asthma was rated as only 30 percent disabling and "would not be considered to cause total inability to obtain or sustain employment". The record reflects that a May 2011 rating decision granted a 60 percent rating for the Veteran's bronchial asthma, effective July 26, 2005. A remand is therefore warranted in order to afford the Veteran full consideration of his TDIU claim by the RO. However, the Board cautions that although the Veteran may have met the service-connected disability rating requirements pursuant to 38 C.F.R. § 4.16(a)(3), the regulation provides that if the rating requirements are met, a TDIU rating "may" be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Id. Thus, there must still be a competent medical opinion finding that the Veteran unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Board notes that while the Veteran's private physician, Dr. Kanarek has provided opinions regarding the effect of the Veteran's asthma on his employability, the Board finds that these opinions do not consider the Veteran's service-connected sleep apnea and are not definitive as to whether the Veteran's service-connected disabilities, alone, preclude him from following a substantially gainful occupation. As such, a clarifying VA opinion regarding the Veteran's employability is in order. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide updated information regarding any recent treatment he may have received regarding his sinusitis and sleep apnea. With any assistance needed from the Veteran, obtain any additional pertinent records and associate them with the claims folder. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine whether sinusitis may be secondary to the service-connected asthma, and to evaluate the impact of his service-connected disabilities (asthma and sleep apnea) on his employability. The claims folder must be made available to the examiner for review, and the examination report should indicate that such review was performed. a. Following the examination and a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that sinusitis was caused by, OR, alternatively, aggravated (permanently increased in severity beyond the natural progression of the disorder) by the Veteran's service-connected asthma. b. The examiner should also provide an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities alone (and without regard to age or nonservice-connected disabilities). c. The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and an explanation provided. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Thereafter, the issues on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs