Citation Nr: 1325720 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-31 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial disability rating in excess of 10 percent for right knee instability. 3. Entitlement to an initial disability rating in excess of 10 percent for left knee instability. 4. Entitlement to an increased disability rating in excess of 30 percent for bronchial asthma. 5. Entitlement to recognition of a dependent as permanently incapable for self-support. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1979 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and February 2010 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Denver, Colorado. The Veteran testified at a Board videoconference hearing from the RO in June 2010 before the undersigned Veterans Law Judge in Washington, DC. A copy of the transcript of that hearing has been associated with the record on appeal. These issues were previously remanded by the Board in December 2010, at which time an additional VA examination was ordered. Such an examination was afforded the Veteran in January 2011. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for obstructive sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. During the period of this appeal, the Veteran's instability of the right knee has been manifested by no more than mild instability and subluxation, with objective evidence of a lack of injury to the soft tissues of the knee. 2. During the period of this appeal, the Veteran's instability of the left knee has been manifested by no more than mild instability and subluxation, with objective evidence of a lack of injury to the soft tissues of the knee. 3. During the period of this appeal, the Veteran's asthma has been managed by anti-inflammatory medication and inhalational bronchodilator therapy, without the need for at least monthly visits to a physician or at least 3 courses of oral or parenteral corticosteroids per year. Pulmonary function test findings show no worse than FEV-1 (Forced Expiratory Volume in one second) of 66 percent predicted, or FEV-1/FVC (Forced Expiratory Volume in one second to Forced Vital Capacity) of 95 percent. 4. A.H. is the Veteran's son. 5. A.H. was born in March 1988. 6. A.H. was not permanently incapable of self-support prior to the age of 18. CONCLUSIONS OF LAW 1. For the entire rating period of this appeal, the criteria for a disability rating in excess of 10 percent for instability of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2012). 2. For the entire rating period of this appeal, the criteria for a disability rating in excess of 10 percent for instability of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2012). 3. For the entire rating period of this appeal, the criteria for a disability rating in excess of 30 percent for bronchial asthma are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6602 (2012). 4. A.H. is not a helpless child of the Veteran. 38 U.S.C.A. §§ 101(4)(A)(ii), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.57, 3.356 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 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). With respect to the Veteran's claims decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA. In March 2006, July 2008, October 2009, November 2009, and December 2010 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the March 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally, VCAA notice was provided the Veteran prior to the rating determinations on appeal; therefore, no timing issue exists with regard to the notice provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The issues of initial ratings for instability of the knees on appeal arises from a notice of disagreement with a rating decision which granted initial and separate disability ratings of 10 percent for instability of the right and left knees. As such, the Veteran's filing of a notice of disagreement with the initial ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Rather, the Veteran's appeal as to the initial rating assigned triggers VA's obligation to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. 38 U.S.C.A. §§ 5104, 7105. In a March 2006 letter, the RO provided the Veteran with the general criteria for the assignment of a disability rating and an effective date. Additionally, this initial notice was issued prior to the June 2007 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant, and all required notice has been provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA medical treatment records. Relevant medical records related to the Veteran's post-service federal employment have also been received from the Office of Personnel Management (OPM). See 38 U.S.C.A. § 5103A(c)(3). The RO also attempted to obtain records related to the Veteran's claim for Social Security Disability benefits from the Social Security Administration (SSA). See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In a September 2006 response, however, the SSA stated no medical records related to the Veteran's claim were available. The Veteran was also afforded multiple VA medical examinations, the most recent conducted in January 2011, during the appeals period. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. During the June 2010 Board videoconference hearing, the presiding Veterans Law Judge asked questions to help direct the Veteran's testimony, and specifically advised the Veteran of the necessity to submit evidence of the current level of impairment for the service-connected disabilities on appeal. This Veterans Law Judge also directed questions to the Veteran regarding the presence of any additional lay or medical evidence not already obtained. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). This appeal is thus ready for adjudication. Disability Ratings The Veteran seeks initial disability ratings in excess of 10 percent each for instability of the right and left knees, and an increased rating in excess of 30 percent for asthma. The awards for instability of the knees were made effective December 14, 2000. She contends these disabilities interfere with mobility, causes chronic pain, and impairs the ability to perform tasks of daily living. Regarding asthma, the Veteran contends this disability causes shortness of breath and limits mobility. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Likewise, a staged rating may be assigned when evaluating a subsequent claim for an increased rating for a service-connected disability. See Hart v. Mansfield, 21 Vet. App. 505 (2007) As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. As an initial matter, the Board notes that the Veteran has been granted separate compensable ratings for degenerative joint disease and for instability of each knee. The rating issues before the Board involve only lateral instability of the knees, as the issues of increased ratings for the degenerative joint disease of the bilateral knees were adjudicated by the Board in a June 2007 decision, which is now final; thus, increased ratings for degenerative joint disease of the bilateral knees is not currently before the Board. These degenerative joint disease ratings are evaluated pursuant to Diagnostic Code 5010, for traumatic arthritis, and Diagnostic Code 5260, for limitation of motion, as a hyphenated code, 5010-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2012). Evaluation of degenerative joint disease of the knee involves rating such symptoms as limitation of motion, pain, weakness, fatigability, incoordination, or pain on movement of a joint. See r 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260-61 (2012); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). As the disability ratings for degenerative joint disease of the knees are currently not before the Board, the Board need not consider such symptoms, as evaluation of the same manifestations under various diagnoses, know as pyramiding, is forbidden by regulation. 38 C.F.R. § 4.14 (2012). Rather, the Board's inquiry will be limited to the symptomatology specified under Diagnostic Code 5257, for other impairment of knee, which consists of lateral instability and recurrent subluxation. Diagnostic Code 5257, for other impairment of the knee characterized by recurrent subluxation or lateral instability, provides a 10 percent rating for slight knee impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257; see also VAOPGCPREC 9-98. Initial Rating - Instability of the Right Knee The Veteran has been awarded an initial rating of 10 percent for instability of the right knee, effective December 14, 2000. Upon consideration of the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 10 percent for this disability, as no more than slight impairment due to recurrent subluxation and lateral instability have been demonstrated for any period. On VA examination in September 2002, the Veteran's right knee ligaments were stable bilaterally to valgus and varus stress, and Lachman's and drawer's tests were negative. On VA examination in April 2006, the Veteran was without subluxation or lateral instability in the right knee, according to the examiner. Lachman's, McMurray's, and anterior and posterior drawer's tests were all negative. On physical evaluation, the lateral and medial collateral ligaments were intact bilaterally. On VA examination in January 2011, the Veteran reported occasional popping in the knees bilaterally, but she denied any locking. Some giving way of the knees, resulting in falls, was also reported. The Veteran reported the kneecaps were stable, however. On physical evaluation, varus, valgus, anterior, and posterior drawer's, and McMurray's tests were all within normal limits. Both knee joints were described as stable by the examiner. Crepitus was present in the knee joints, but the examiner found no subluxation or patellar apprehension or instability. Overall, the examiner could find no history or evidence of ligamentous instability or tearing. Overall, the September 2002, April 2006, and January 2011 VA examination reports all reflect little to no lateral instability or recurrent subluxation of the right knee. Concurrent VA outpatient treatment records are also negative for evidence of lateral instability or recurrent subluxation of the right knee. In the written statements and June 2010 hearing testimony, the Veteran stated the knee "gives out" on occasion, resulting in falls. She also stated she uses a brace and/or an ace bandage wrapping to stabilize the knee. The Veteran is competent to report such observable symptomatology as buckling of the knee. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board also finds such accounts credible. When weighed, however, against the remainder of the evidence, both lay and medical, the Board finds the Veteran's lay contentions are far outweighed by the various clinical findings that the right knee joint is stable, without more than mild impairment due to lateral instability or recurrent subluxation. Thus, a higher rating of 20 percent for instability of the right knee is not warranted because the knee does not more nearly approximate a moderate degree of impairment nor is the evidence in equipoise. The Board has also considered whether the Veteran's service-connected right knee instability may be rated under any other diagnostic codes related to the knee and leg. As noted above, however, the Veteran is already in receipt of a separate rating for degenerative joint disease of the right knee, and evaluation of the same manifestations under additional diagnostic criteria is prohibited. See 38 C.F.R. § 4.14. The Board has also considered entitlement to a staged rating, but finds that the Veteran's instability of the right knee has resulted in no more than mild impairment during the pendency of this appeal; thus, a staged rating is not warranted. See Fenderson, 12 Vet. App. at 119. In conclusion, the preponderance of the evidence is against the award of an initial disability rating in excess of 10 percent for instability of the right knee. As a preponderance of the evidence is against the award of a higher initial rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Initial Rating - Instability of the Left Knee The Veteran has been awarded an initial rating of 10 percent for instability of the left knee, effective December 14, 2000. Upon consideration of the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 10 percent for this disability, as no more than slight impairment due to recurrent subluxation and lateral instability have been demonstrated for any period. On VA examination in September 2002, the Veteran's left knee ligaments were stable bilaterally to valgus and varus stress, and Lachman's and drawer's tests were negative. On VA examination in April 2006, the Veteran was without subluxation or lateral instability in the left knee, according to the examiner. Lachman's, McMurray's, and anterior and posterior drawer's tests were all negative. On physical evaluation, the lateral and medial collateral ligaments were intact bilaterally. On VA examination in January 2011, the Veteran reported occasional popping in the knees bilaterally, but denied any locking. Some giving way of the knees, resulting in falls, was also reported. The Veteran reported the kneecaps were stable, however. On physical evaluation, varus, valgus, anterior, and posterior drawer's, and McMurray's tests were all within normal limits. Both knee joints were described as stable by the examiner. Crepitus was present in the knee joints, but the examiner found no subluxation or patellar apprehension or instability. Overall, the examiner could find no history or evidence of ligamentous instability or tearing. Overall, the September 2002, April 2006, and January 2011 VA examination reports all reflect little to no lateral instability or recurrent subluxation of the left knee. Concurrent VA outpatient treatment records are also negative for evidence of lateral instability or recurrent subluxation of the left knee. In the written statements and June 2010 hearing testimony, the Veteran stated the knee "gives out" on occasion, resulting in falls. She also stated she uses a brace and/or an ace bandage wrapping to stabilize the knee. The Veteran is competent to report such observable symptomatology as buckling of the knee. See Jandreau, 492 F.3d at 1372; see also Buchanan, 451 F.3d at 1331. The Board also finds such accounts credible. When weighed, however, against the remainder of the evidence, both lay and medical, the Board finds the Veteran's lay contentions are far outweighed by the various clinical findings that her left knee joint is stable, without more than mild impairment due to lateral instability or recurrent subluxation. Thus, a higher initial rating of 20 percent for instability of the left knee is not warranted because the knee does not more nearly approximate a moderate degree of impairment nor is the evidence in equipoise. The Board has also considered whether the Veteran's service-connected left knee instability may be rated under any other diagnostic codes related to the knee and leg. As noted above, however, the Veteran is already in receipt of a separate rating for degenerative joint disease of the right knee, and evaluation of the same manifestations under additional diagnostic criteria is prohibited. See 38 C.F.R. § 4.14. The Board has also considered entitlement to a staged rating, but finds that the Veteran's instability of the left knee has resulted in no more than mild impairment during the pendency of this appeal; thus, a staged rating is not warranted. See Fenderson at 119. In conclusion, the preponderance of the evidence is against the award of an initial disability rating in excess of 10 percent for instability of the left knee. As a preponderance of the evidence is against the award of a higher initial rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Increased Rating - Asthma The Veteran seeks a disability rating in excess of 30 percent for asthma. She contends this disability has worsened in severity recently, resulting in increased asthma attacks and shortness of breath. Respiratory disorders are rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847. Ratings under those diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a) (2012). Under Diagnostic Code 6602 for bronchial asthma, a 30 percent evaluation is warranted for a FEV-1 of 56 to 70 percent of predicted value, or, an FEV-1/FVC of 56 to 70 percent, or, daily inhalational or oral bronchodilator therapy, or, inhalational anti-inflammatory medication. A 60 percent evaluation is warranted for an FEV-1 of 40 to 55 percent of predicted value, or, an FEV-1/FVC of 40 to 55 percent, or, at least monthly visits to a physician for required care of exacerbations, or, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A maximum 100 percent disability rating is assigned for an FEV-1 less than 40 percent of the predicted value, or, FEV-1/FVC less than 40 percent, or, demonstrates more than one attack per week with episodes of respiratory failure, or, requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. Pulmonary function test results are at times presented with both pre-bronchodilator and post-bronchodilator findings. Post-bronchodilator results are to be used for ratings purposes unless such results are worse than pre-bronchodilator results, in which case the latter may be used in evaluating a service-connected disability. 38 C.F.R. § 4.96(d). Upon consideration of the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 30 percent for asthma. According to January 2010 VA pulmonary function testing results, the Veteran had a FEV-1 of 96 percent of predicted value pre-bronchodilator, and 90 percent post-bronchodilator. The FEV-1/FVC was 95 percent of predicted value pre-bronchodilator, and 100 percent post-bronchodilator. A private August 2009 pulmonary function test indicated a FEV-1 of 66 percent of predicted, and a FEV-1/FVC of 102 percent. Thus, none of these results support a disability rating in excess of 30 percent. Regarding the need for at least monthly visits to a physician for required care of exacerbations, the Veteran stated in January 2010 that she visited her doctor's office 3-4 times in the past year for complications of asthma, confirming that monthly or more frequent visits have not been required. The record also documents daily use of multiple medications, including Advair, an inhaled corticosteroid. The rating criteria, however, explicitly distinguishes between "inhalational" therapy and "systemic" therapy. See 38 C.F.R. § 4.97, Diagnostic Code 6602. Bronchial asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy. "Systemic" is defined as "pertaining to or involving the body as a whole." Dorland's Illustrated Medical Dictionary, 1848 (30th Ed. 2003). The use of an inhaled corticosteroid such as Advair therefore does not constitute the use of systemic (oral or parenteral) corticosteroids for VA purposes. In the absence of evidence of the need for systemic corticosteroids, an increased rating is not warranted. The Board has also considered evaluation under other pertinent diagnostic criteria. Diagnostic Codes 6600-6604 are classified under VA's Rating Schedule as Diseases of the Trachea and Bronchi. 38 C.F.R. § 4.97. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 6601 (bronchiectasis), 6603 (pulmonary emphysema), and 6604 (chronic obstructive pulmonary disease) are not applicable in this instance, as the evidence does not show that the Veteran has been diagnosed with any of those conditions or anything similar. Therefore, evaluation of the asthma under other diagnostic criteria is not warranted. In conclusion, the preponderance of the evidence is against the award of a disability rating in excess of 30 percent for asthma for any period. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for an extraschedular evaluation is warranted. 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. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis in the present case, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected asthma and disabilities of the knees for the time period in question are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria cited above specifically provide for disability ratings based on a combination of occupational and social impairment, physical symptoms, and clinical findings. In this case, considering the lay and medical evidence, the Veteran's orthopedic disabilities are manifested by symptoms of instability, subluxation, and impaired functionality. These symptoms are part of, or like or similar to, symptoms or impairments listed under the schedular rating criteria at 38 C.F.R. § 4.71a. The schedular rating criteria specifically address such reported symptoms as instability and subluxation of the knees. Regarding the asthma, the schedular rating criteria contemplate the Veteran's pulmonary functioning, the frequency of medical care, and the types of medication required for the disability at issue. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's service-connected asthma and disabilities of the knees, and referral for consideration of an extraschedular evaluation is not warranted. Permanent Incapacity of a Dependent The Veteran seeks recognition of, and additional compensation for, a son, A.H., as a helpless child. The Veteran contents that due to a Chiari malformation, type I, the son is permanently incapable of self-support, and such recognition is warranted. The term "helpless child" has evolved in the development of veterans law. See Cumby v. West, 12 Vet.App. 363 (1999); Golliday v. Brown, 7 Vet.App. 249, 251 (1994); Hanlin v. Nicholson, 19 Vet. App. 350, 353 (2005). The provisions of 38 C.F.R. § 3.356 address factors to be considered in rendering a determination of permanent incapacity for self-support. The regulation directs that: (a) Basic determinations. A child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. (b) Rating criteria. Rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through his own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for determination by the rating agency on competent evidence of record in the individual case. Rating criteria applicable to disabled veterans are not controlling. Principal factors for consideration are: (1) The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his or her own efforts is provided with sufficient income for his or her reasonable support. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established. (3) It should be borne in mind that employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises some doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends. (4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. In the present case, A.H. was born on March 2, 1988 and turned 18 on March 2, 2006. Private medical records indicate that in May 2009, he sought treatment at the emergency department of a private hospital for episodic left-side numbness over the past year. Other reported symptoms included headaches, myalgias, and occasional right-side numbness. He denied any history of head injury or any relevant family history. A medical history of an appendectomy and left knee surgery, both date unreported, was also indicated. Upon a cranial MRI scan that same month, a Chiari malformation, type I, was diagnosed. A Chiari malformation is a congenital anomaly in which the cerebellum and medulla oblongata, which is elongated and flattened, protrude into the spinal canal through the foramen magnum. Dorland's Illustrated Medical Dictionary, 1090 (30th Ed. 2003). According to an October 2009 clinical notation, A.H. first began experiencing headaches approximately two years prior, with subsequent onset of numbness and paresthesia. In November 2009, he underwent surgical decompression of the malformation; however, he continued to report ongoing headaches and intermittent numbness thereafter. Following his surgery, A.H. filed a claim for Social Security Disability benefits. His claim was granted by the Social Security Administration, with onset of his disability found to be in October 2008. The Veteran contends A.H.'s Chiari malformation, status post surgical decompression, renders him permanently incapacitated. Whether A.H. remains permanently incapable of self-support following his November 2009 surgery is not clear from the record; regardless, A.H.'s current incapacity need not be addressed at this time, as the governing standard is whether he was "permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years." 38 C.F.R. § 3.356(a) (emphasis added). As noted above, the Veteran reached 18 years of age in March 2006, but did not seek medical treatment for his Chiari malformation until 2009. Additionally, at that time, he reported onset of his headaches, followed by intermittent numbness and paresthesia, no earlier than 2007, after his 18th birthday. Neither the Veteran nor A.H. have submitted evidence to show, or have otherwise asserted, that he became permanently incapable of self-support prior to his 18th birthday. Though a layperson, A.H. is competent to report such observable symptomatology as headaches and numbness. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, his assertions as to the date of onset of these symptoms is presumed to be credible. Nevertheless, A.H.'s own account of his neurological symptomatology establishes onset of his disability approximately one year after his 18th birthday, meaning he does not meet the 38 C.F.R. § 3.356 definition of a helpless child. In so stating, the Board acknowledges that a Chiari malformation, type I, is recognized to be a congenital anomaly; that is, one existing at or before birth. Dorland's Illustrated Medical Dictionary, 408 (30th Ed. 2003). That fact, however, does not establish permanent incapacity for self-support prior to March 2006, as the lay and medical evidence establishes that this anomaly did not manifest in actual symptomatology until 2007 at the earliest. The Court has held that VA's "focus of analysis must be on the claimant's condition at the time of his or her 18th birthday; it is that condition which determines whether the claimant is entitled to the status of "child."' Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Finally, the Board notes that upon seeking treatment in 2009 for his neurological symptomatology in 2009, A.H. reported a prior history of an appendectomy and a left knee surgery. Dates for these operations were not provided. Nevertheless, even if VA were to assume, arguendo, that these both occurred prior to his 18th birthday, no party contends and the evidence does not show that either surgery has resulted in permanent incapacity. Thus, neither A.H.'s appendectomy nor his left knee surgery aid him in meeting the regulatory criteria for establishment as a helpless child pursuant to 38 C.F.R. § 3.356. Overall, the preponderance of the evidence demonstrates A.H. was not permanently incapable of self-support prior to his 18th birthday. In the absence of any favorable evidence of permanent incapacity for self-support prior to the age of 18, the Board finds A.H. is not the helpless child of the Veteran. ORDER An initial disability rating in excess of 10 percent for instability of the right knee is denied. An initial disability rating in excess of 10 percent for instability of the left knee is denied. A disability rating in excess of 30 percent for asthma is denied. Recognition of A.H. as the helpless child of the Veteran is denied. REMAND Service Connection for Obstructive Sleep Apnea The Veteran seeks service connection for obstructive sleep apnea. According to a January 2010 VA examination report, the Veteran was recently diagnosed with obstructive sleep apnea, and prescribed a CPAP machine by the primary physician. Using the CPAP machine was difficult, however, as the Veteran's breathing while wearing the CPAP mask was complicated by the asthma, according to the Veteran's account. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). As noted above, the Veteran has been awarded service connection for asthma. Additionally, the Veteran is competent to provide testimony regarding observable symptomatology, such as breathing difficulties. See Jandreau, 492 F.3d 1372. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA's duty to assist includes providing a medical examination and/or obtaining a medical opinion when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d). In the present case, the Veteran has been awarded service connection for asthma, and the record contains competent evidence suggesting this disorder may have caused or aggravated obstructive sleep apnea. Thus, the Board finds the criteria have been met to afford the Veteran a VA medical examination and opinion to assist in determining if a nexus exists between the asthma and the sleep apnea. See generally McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the issue of service connection for sleep apnea is REMANDED for the following action: 1. The AMC/RO should schedule the Veteran for a VA respiratory examination for the purpose of assisting in determining the nature and etiology of any current sleep apnea. Following a review of all relevant evidence from the claims file, an interview with the Veteran to obtain a complete medical history, and an examination and any necessary testing, the examiner is asked to offer the following opinions: a) Based upon review of the record and personal evaluation of the Veteran, what current respiratory disabilities (diagnoses), to include obstructive sleep apnea, does the Veteran have? b) Is it at least as likely as not (50 percent or greater degree of probability) that any current respiratory disorders, to include obstructive sleep apnea, are caused by a service-connected disability or disabilities, including asthma? c) Is it at least as likely as not (50 percent or greater degree of probability) that any current sleep disorders, including obstructive sleep apnea, are aggravated (permanently increased in severity beyond the natural progression of the disorder) by a service-connected disability or disabilities, including asthma? In answering these questions, the examiner should note that the Veteran's service-connected disabilities are asthma, sinusitis, and instability and degenerative joint disease of the bilateral knees. A rationale should be provided for any opinion or conclusion expressed. 2. After undertaking any additional development deemed appropriate, and giving the Veteran the full opportunity to supplement the record, readjudicate the claim for service connection for obstructive sleep apnea in light of all additional evidence added to the record. Such reconsideration should include the theory of entitlement to service connection as secondary to a service-connected disability. If any benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs