Citation Nr: 1326152 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-45 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a rating in excess of 40 percent for chronic fatigue syndrome (CFS) prior to September 7, 2010. 2. Entitlement to a rating in excess of 60 percent for asthma prior to September 7, 2010. 3. Entitlement to a rating in excess of 60 percent for asthma and sleep apnea with CFS symptoms from September 7, 2010 to August 17, 2011. 4. Entitlement to a rating in excess of 50 percent for asthma and sleep apnea with CFS symptoms from August 17, 2011 forward. 5. Entitlement to a rating in excess of 30 percent for headaches prior to April 12, 2010 and in excess of 50 percent thereafter. 6. Entitlement to a rating in excess of 10 percent for bilateral flat feet. 7. Entitlement to a total disability rating due to individual unemployability. REPRESENTATION Veteran represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from May 1991 to July 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions issued in July 2009, January 2010, and October 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln Nebraska. In June 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The July 2009 rating decision, inter alia, denied a rating in excess of 30 percent for the Veteran's headaches. While the appeal was pending, in a July 2010 supplemental statement of the case, a 50 percent rating was assigned, effective April 12, 2010. However, as this rating is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. The RO's combining of the Veteran's CFS symptoms with the rating assigned for asthma and sleep apnea, effective September 7, 2010 was equal to a severance of service connection for CFS; service connection for CFS had been in effect for more than ten years and could not be severed. 2. CFS was manifested by restriction of daily activities to no less than 50 percent of the pre-illness level without incapacitation requiring bed rest and medical treatment throughout the appeal period. 3. Prior to September 7, 2010, asthma was manifested by pulmonary function test (PFT) values of no less than 100 percent forced expiratory volume in one second (FEV-1) and 77 percent FEV-1 to forced vital capacity (FVC) and the use of inhalational medications and systemic steroids. 4. From September 7, 2010 forward, asthma and sleep apnea is manifested by PFT values of no less than 93.5 percent FEV-1 and 80 percent FEV-1/FVC and the use of inhalational medications and need for systemic steroids, and the use of a CPAP without respiratory failure or need for tracheotomy. 5. Headaches are manifested by incapacitating headaches occurring several times per week and impacting his daily activities and employment, resulting in economic inadaptability. 6. Bilateral flat feet are manifested by no more than moderate symptoms of pain with weight-bearing line over or medial to the great toe, and pain on manipulation and use of the feet with no marked deformity of either foot or increased pain on manipulation. 7. Service connection is in effect for asthma with sleep apnea, evaluated as 60 percent disabling; headaches evaluated as 50 percent disabling; CFS, evaluated as 40 percent disabling; bilateral flat feet, evaluated as 10 percent disabling; right long metacarpal boss, recurrent, evaluated as 10 percent disabling; right hand arthritis, evaluated as 10 percent disabling; right lower leg scars with numbness, evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. The combined disability rating is 90 percent. 8. The Veteran is not unable to obtain and maintain substantially gainful employment due solely to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for CFS have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.88a, 4.88b, Diagnostic Code 6354 (2012). 2. The criteria for a rating in excess of 60 percent for asthma have not been met prior to September 7, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2012). 3. The criteria for a rating in excess of 60 percent for asthma and sleep apnea have not been met from September 7, 2010 to August 17, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Codes 6602, 6847 (2012). 4. The criteria for a rating of 60 percent, but no greater, for asthma and sleep apnea have been met from August 17, 2011 forward. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Codes 6602, 6847 (2012). 5. The criteria for a rating of 50 percent, but no greater, for headaches have been met prior to April 12, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). 6. The criteria for a rating in excess of 50 percent for headaches have not been met from April 12, 2010 forward. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). 7. The criteria for a rating in excess of 10 percent for bilateral flat feet have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). 8. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Stegall Considerations The Board observes that this case was remanded by the Board in June 2012. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to achieve further development of the claims, namely to schedule additional VA examinations. These examinations were performed in October 2012. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the June 2012 remand, and that the Board may now proceed with adjudication of the claims. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353 -23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Court of Appeals for Veterans Claims (Court), in the consolidated appeal of Dingess/Hartman v. Nicholson, held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. 19 Vet. App. 473 (2006). VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in May 2009 for his CFS, asthma, headaches, and flat feet and in November 2009 for his TDIU claim. These letters were issued prior to the initial unfavorable AOJ decisions. The Board observes that the May 2009 letter advised the Veteran that he needed to show that his service-connected disabilities had increased in severity while the November 2009 letter included the criteria that needed to be met for TDIU. Both letters informed the Veteran of his and VA's obligations in providing evidence for consideration and of how to substantiate disability ratings and effective dates generally. Therefore, the Board determines that the Veteran was provided all necessary notice prior to the initial AOJ adjudication of the claims. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing him with VA examinations. The Veteran's VA medical records and the reports of June 2009, April 2010, and October 2012 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claims. He has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claims. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports, they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability ratings. Nothing suggests that any examiner documented findings inconsistent with the medical history outlined in the claims file. Thus, the Board does not find any of the examinations to be inadequate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and that additional effort to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claims. III. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's disabilities. 38 C.F.R. § 4.14. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath, the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to this disability beyond that which is set out herein below. In an increased rating case the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board also notes that the Court has held that staged ratings are appropriate for increased rating claims when factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the Board has considered the propriety of staged ratings in assessing the Veteran's service-connected disabilities. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). CFS, asthma, and sleep apnea: Procedural concerns The Board observes that the Veteran's asthma and CFS were rated as separate disabilities prior to September 7, 2010. When service connection was granted for sleep apnea in an October 2012 rating decision, the three disabilities were combined into one disability as it was determined that the Veteran's CFS symptoms were a result of his sleep apnea. Additionally, regulations provide that multiple respiratory disabilities, such as asthma and sleep apnea, will be rated together and assigned a single rating for the predominant disability. 38 C.F.R. § 4.96(a). Therefore, the three disabilities were rated as one: asthma and sleep apnea with CFS symptoms. However, while the RO did not frame the issue as such, the combining of the CFS with the asthma and the sleep apnea was tantamount to a severance of service connection for the CFS. The action taken by the RO was more than merely switching the diagnostic code and criteria under which the disability was rated. Rather, CFS was longer listed separately as one of the Veteran's currently service-connected disabilities only up to, and not including, September 7, 2010. See Murray v. Shinseki, 24 Vet. App. 420, 425-26 (2011) (holding that a separate evaluation under Diagnostic Code 5257 which had been in effect for more than twenty years could not be discontinued simply because the same evaluation was subsequently assigned for arthritis under Diagnostic Codes 5260 and 5261). Service connection for CFS was granted in a February 2003 rating decision, effective February 1, 1999, and was severed in an October 2012 rating decision, with an effective date of September 7, 2010. Service connection for any disability granted or continued under title 38 U.S.C. which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. This 10 year period is calculated from the effective date of the VA finding of service connection, to the effective date of the rating decision severing service connection. 38 U.S.C.A. § 1159 (West 2002); 38 C.F.R. § 3.957 (2012). CFS was combined with the asthma and sleep apnea disabilities on the basis that the Veteran was found not to have CFS, but only CFS symptoms that were due to his sleep apnea. Thus, there was no finding by the RO of fraud or other than honorable discharge that would support the severance. Therefore, service connection for CFS having been in effect for more than 10 years, it could not be severed in the manner performed by the RO. Consequently, the Board determines that the combining of the CFS with the asthma and sleep apnea into one disability was impermissible. Accordingly, the Board will adjudicate whether higher ratings are warranted for CFS for the entire appeal period, for asthma prior to September 7, 2010, and for asthma and sleep apnea from September 7, 2010 forward. CFS, asthma, sleep apnea: Ratings Prior to September 7, 2010, CFS was rated as 40 percent disabling, pursuant to 38 C.F.R. § 4.88b, Diagnostic Code 6354, and asthma was rated as 60 percent disabling, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6602. From September 7, 2010 to August 17, 2011, asthma with sleep apnea was rated as 60 percent disabling, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6602, and from August 17, 2011 forward, the combined disabilities were rated as 50 percent disabling, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6847. The basis for the change in rating was that the asthma symptoms had improved, warranting a 30 percent rating, but the sleep apnea warranted a 50 percent rating, making it the predominant disability. 38 C.F.R. § 4.96(a). Therefore, the higher of the two ratings was assigned. CFS is evaluated under 38 C.F.R. § 4.88b, Diagnostic Code 6354. Under that diagnostic code, a 40 percent disability rating is warranted for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent disability rating is warranted for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A maximum 100 percent disability rating is warranted for signs and symptoms of CFS that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. 38 C.F.R. § 4.88b, Diagnostic Code 6354. Additionally, a Note to Diagnostic Code 6354 provides that, for the purpose of rating CFS, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. For VA purposes, the diagnosis of CFS requires: (1) the new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 months, and (2) the exclusion, by history, physical examinations, and laboratory tests, of all other clinical conditions that may produce similar symptoms, and (3) 6 or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance. 38 C.F.R. § 4.88a. Diagnostic Code 6602, bronchial asthma, provides for a 60 percent evaluation is assigned for FEV-1 of 40 to 55 percent predicted, or 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. If FEV-1 is less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; there is more than one attack per week with episodes of respiratory failure, or required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications, then the disorder warrants an evaluation of 100 percent. 38 C.F.R. § 4.97 (2012). Sleep apnea is rated under the provisions of Diagnostic Code 6847 which assigns a noncompensable rating for sleep apnea if a veteran is asymptomatic, but still has a documented sleep disorder involving breathing. 38 C.F.R. § 4.97, Diagnostic Code 6847. A 50 percent disability rating contemplates sleep apnea that requires use of a breathing assistance device such as a CPAP machine. Id. The highest rating of 100 percent is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or where a tracheostomy (tracheotomy) is required. Id. The Veteran was afforded VA examinations in June 2009, April 2010, and October 2012. Additional VA treatment notes containing additional PFT results are of record. The June 2009 CFS examination report reflects that the Veteran asserted that he had generalized muscle aches, generalized weakness, migratory joint pain, sleep disturbance, inability to concentrate, forgetfulness, confusion, headaches, and enlarged cervical lymph nodes. He reported that these symptoms were constant. The examiner diagnosed CFS. The examiner indicated that the symptoms restricted routine activities to 50 percent of the pre-illness level. In terms of impact on the usual daily activities, the examiner indicated that the effect on acts of personal hygiene and traveling was mild, on shopping was moderate, and on sports, exercise, and chores was severe. At the October 2012 chronic fatigue examination, the examiner documented symptoms of generalized muscle aches or weakness, poor attention, inability to concentrate, and forgetfulness. The examiner indicated that the symptoms restricted routine activities by less than 25 percent of the pre-illness level and that the Veteran did not experience incapacitating episodes. The June 2009 VA asthma examination report indicates that the Veteran was on albuterol, a nasal spray for chronic congestion, and Advair. The examiner noted that the Veteran was on a steroid bronchial spray as well as Singulair. The asthma was noted to be worse at night, aggravated by gastroesophageal disease. The PFT results reported, post-bronchodilator, were FEV-1 of 100 percent and the FEV-1/FVC of 78 percent. Impact on the usual daily activities was mild for bathing, dressing, and toileting; moderate for shopping and recreation; and severe for chores. Sports and exercise were prevented. At the April 2010 General Medical Examination, post-bronchodilator PFT results were FEV-1, 102.6 percent, and FEC-1/FVC, 77 percent. The examiner described the asthma as moderately severe. VA treatment records show results of FEV-1 of 100.4 percent and DEV-1/FVC of 77 percent in August 2010. January 2011 PFT results were FEV-1 of 103.2 percent and FEV-1/FVC of 78 percent. At the October 2012 VA respiratory examination, the examiner noted that the Veteran required inhalational bronchodilator and anti-inflammatory therapy. The examiner indicated that no PFT was performed because multiple prior assessments of lung function had been normal. As a result, a VA respiratory examination was performed in November 2012 for PFT results only. Testing revealed FEV-1 at 93.5 percent and FEV-1/FVC at 80 percent. The October 2012 sleep apnea examination reflected the use of a breathing assistance device such as a CPAP machine. The Veteran endorsed persistent daytime hypersomnalence. The examiner noted that the Veteran reported feeling 90 percent normal after a night of sleep wearing his CPAP, and that there had been no mention of CFS in the file since the June 2009 VA examination. The examiner again opined that the Veteran's symptoms of fatigue were most likely a result of his sleep apnea. Based on the above, the Board finds that a rating in excess of 40 percent for CFS is not warranted throughout the entire appeal period. Such a rating requires restriction of daily activities to less than 50 percent of the pre-illness level or symptoms that wax and wane causing periods of incapacitation for a total of at least six weeks per year. The June 2009 CFS examination report specifically states that the Veteran's activity level was reduced to 50 percent of the pre-illness level. The October 2012 VA examiner documented symptoms of generalized muscle aches or weakness, poor attention, inability to concentrate, and forgetfulness, but indicated that the symptoms restricted routine activities by less than 25 percent of the pre-illness level and that the Veteran did not experience incapacitating episodes. Relevant evidence does not suggest that the reduction in activity level was greater than 50 percent at any time. Further, the medical evidence does not establish that the Veteran had been incapacitated by his symptoms, requiring bed rest and medical treatment during the appeal period. Therefore, the Board finds that the criteria for a rating in excess of 40 percent for CFS have not been met. Additionally, the Board finds that a rating in excess of 60 percent is not warranted for asthma prior to September 7, 2010. A higher rating requires FEV-1 of less than 40 percent, FEV-1/FVC of less than 40 percent, more than one attack per week with episodes of respiratory failure, or required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. None of these manifestations is present. The Veteran's medications were inhalational and oral prednisone at 10 mg every other day while his PFT values were no less than 100 percent FEV-1 and 77 percent FEV-1/FVC. He had also not experienced respiratory failure. Therefore, prior to September 7, 2010, the criteria for a rating in excess of 60 percent for asthma have not been met. From September 7, 2010 forward, the Board determines that a rating of 60 percent, but no greater, is warranted for asthma and sleep apnea for the entire appeal period from September 7, 2010 forward. For this period, the Veteran continued to use inhalants to treat his symptoms. A December 2010 VA treatment record indicated that the Veteran's oral steroids were being tapered, but that his asthma was then uncontrolled. An August 2011 VA treatment record reflects that the Veteran was supposed to be taking prednisone every other day, but was concerned about side effects. Even though the dosage was to be tapered, the August 2011 VA treatment record suggests that the treatment provider would have continued the steroid prescription. The Board acknowledges that the October 2011 VA examination report indicates that systemic steroids were not required; however, even though this finding suggests an improvement that would warrant a lower rating than 60 percent under the asthma criteria, one examination is an insufficient basis for finding that a disability consistently rated for over five years had improved. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). Therefore, the Board concludes that the 60 percent rating for asthma and sleep apnea as assigned by the RO is warranted from September 7, 2010 to August 17, 2011, and also from August 17, 2011 forward. However, a rating in excess of 60 percent is not supported by the evidence from September 7, 2010 forward. The medical evidence continued to show that the Veteran's asthma did not result in FEV-1 of less than 40 percent, FEV-1/FVC of less than 40 percent, more than one attack per week with episodes of respiratory failure, or required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. His PFT values were no less than 93.5 percent FEV-1 and 80 percent FEV-1/FVC. He had also not experienced respiratory failure. Therefore, a rating in excess of 60 percent for that period is not warranted under Diagnostic Code 6602 for asthma and sleep apnea. The Board notes that, even though a rating in excess of 60 percent is not warranted under the rating criteria for asthma, such a rating is also for consideration under the rating criteria for sleep apnea. To reiterate, VA regulations require that asthma and sleep apnea be rated together and assigned a single rating for the predominant disability. 38 C.F.R. § 4.96(a). The only rating for sleep apnea above 60 percent is 100 percent. A 100 percent rating requires chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy (tracheotomy). These manifestations are not present. Accordingly, the Board determines that the Veteran's asthma and sleep apnea does not meet the criteria for a rating in excess of 60 percent pursuant to Diagnostic Code 6847 for sleep apnea. In conclusion, for the Veteran's CFS, the Board finds that the criteria for a rating in excess of 40 percent have not been met at any time during the appeal period. For the Veteran's asthma, the Board has determined that a rating in excess of the 60 percent assigned by the RO is not warranted for the period prior to September 7, 2010 or for asthma and sleep apnea for the period from September 7, 2010 to August 17, 2011 for asthma and sleep apnea. However, the Board determines that the criteria for a rating of 60 percent, but no greater, is also met from August 17, 2011 forward under Diagnostic Code 6602, the rating code for asthma. A rating in excess of 60 percent is not warranted pursuant to either Diagnostic Code 6602 for asthma or Diagnostic Code 6847 for sleep apnea at any time from September 7, 2010 forward. Headaches The Veteran's headaches have been rated as 30 percent disabling prior to April 12, 2010 and as 50 percent disabling from April 12, 2010 forward, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. He contends that his symptomatology warrants a 50 percent rating throughout the appeal period. Diagnostic Code 8100 pertains to migraine headaches. Under this provision, a 30 percent evaluation may be assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the previous several months. A 50 percent evaluation is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). At a June 2009 VA examination, the Veteran reported having had weekly headaches during the past 12 months that were treated with continuous medication. The Veteran described most attacks as prostrating. The examiner found no neurological impairment. Effects on occupational activities included decreased concentration, difficulty following instructions, lack of stamina, and pain. The examiner indicated that the effect on daily activities ranged from mild for daily activities of personal hygiene, moderate for shopping and traveling, and severe for chores and recreation with exercise and sports being prevented. At the April 2010 VA general medical examination, the examiner documented incapacitating headaches about four days each week, causing the Veteran to miss extensive amounts of work. The October 2012 VA examination report states that the Veteran described headaches that were better than two to three years prior. He reported having pain, nausea, vomiting, and chills or a fever with headaches. The duration of the pain was less than one day. The examiner indicated that the attacks were not characteristically prostrating or prolonged. The Veteran related that his headaches were severely affecting work causing jobs to not be completed and being late for appointments. The examiner reviewed the Veteran's VA treatment records, including his prescriptions. Noting that the treatment notes reflected that the Veteran's medication was helping to relieve his headaches and that he had only refilled his prescription four times in 12 months, the examiner stated that the available evidence did not support the claim of severe prostrating headaches having a severe effect on employability. VA treatment records reflect that in September 2010, the Veteran reported that he had not missed work due to his headaches and that the medication was helping, although he still occasionally got a bad headache. An August 2011 VA treatment record notes persistent migraines three to four times per week. In view of the above facts, the Board determines that a rating of 50 percent, but no greater is warranted for the entire appeal period. The 50 percent rating contemplates the Veteran's incapacitating headaches occurring several times per week and impacting his daily activities and employment as described at the June 2009 and April 2010 VA examinations and in VA treatment records. The Board observes that the Veteran's October 2012 VA examination seemed to indicate improvement of his symptoms, but given the recency of the examination, the Board does not find this examination necessarily representative of the daily severity of the Veteran's headaches. The 50 percent evaluation is the maximum schedular rating available for headaches under Diagnostic Code 8100. The propriety of an extra-schedular referral for this disability is discussed below. Flat Feet Diagnostic Code 5010, arthritis due to trauma that is substantiated by X-ray findings is rated under the rating criteria for degenerative arthritis, Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under Diagnostic Code 5276, for acquired flatfoot, a 10 percent rating is assigned where flatfoot is moderate, with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, either bilateral or unilateral. For severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, 20 and 30 percent ratings (unilateral and bilateral, respectively) are assigned. For pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliance, 30 and 50 percent ratings (unilateral and bilateral, respectively) are assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran was afforded two foot examinations during the appeal period, in June 2009 and October 2012. VA treatment records do not reflect complaints or treatment that demonstrates greater severity than found on VA examination. In June 2009, the Veteran identified symptoms of pain, swelling, stiffness, weakness, and lack of endurance. The examiner observed painful motion, tenderness, and abnormal weigh bearing in both feet. X-ray of the left foot was normal. The right foot X-ray showed pes planus deformity and mild talonavicular and first metatarsal phalangeal degenerative change. The examiner found that the disability had a mild effect on traveling and driving, moderate impact on shopping and recreation, and a severe impact on chores, exercised, and sports. Daily activities of personal hygiene were not affected. In October 2012, the Veteran reported pain in both feet, which was also found on manipulation. There was decreased arch height, but no other marked pronation or other deformity of either foot. In light of the above facts, the Board finds that a rating in excess of 10 percent for bilateral flat feet is not warranted. The Veteran continues to exhibit no more than moderate symptoms of pain with weight-bearing line over or medial to the great toe, and pain on manipulation and use of the feet. There is no marked deformity of either foot. Absent marked deformity and/or increased pain on manipulation, the criteria for a rating in excess of 10 percent have not been met for bilateral flat feet. The Board has also considered whether a separate rating is warranted under other various foot diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, as the Veteran's symptoms do not reflect weak feet, claw foot, hallux valgus, hallux rigidus, hammer toes, malunion or nonunion of metatarsal bones or other foot injuries, ratings under Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, 5283, and 5284 are not supported by the evidence. As such, a review of the record fails to reveal any additional functional impairment associated with the Veteran's foot disability so as to warrant application of alternate rating codes. Extra-schedular ratings Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned ratings inadequate. CFS, asthma and sleep apnea, headaches, and flat feet are evaluated under the criteria for those specific disabilities which criteria the Board has found to specifically contemplate the level of occupational and social impairment caused by this disability. 38 C.F.R. §§ 4.71a, Diagnostic Code 5276, 4.88b, Diagnostic Code 6534, 4.97, Diagnostic Codes 6602 and 6847, 4.124a, Diagnostic Code 8100. The Veteran's service-connected disabilities were manifested by symptoms contemplated by the Rating Schedule, and the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the assigned ratings of 40 percent for CFS, 60 percent for asthma and sleep apnea, 50 percent for headaches, and 10 percent for bilateral flat feet. Evaluations in excess of those assigned are provided for certain manifestations of these disabilities but as noted above, the evidence demonstrates that those manifestations are not present in this case. The criteria for the ratings assigned by the RO and the Board reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required. 38 C.F.R. §§ 4.71a, Diagnostic Code 5276, 4.88b, Diagnostic Code 6534, 4.97, Diagnostic Codes 6602 and 6847, 4.124a, Diagnostic Code 8100 (2012). The Board has considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert at 53. However, as reflected by the above analysis, the evidence does not favor ratings in excess of those assigned by the RO and the Board. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to increased ratings for his asthma and sleep apnea, headaches, and bilateral flat feet. Therefore, his claims must be denied. TDIU A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. "Substantially gainful employment" is not currently defined in VA regulations. For a veteran to prevail on a claim based on unemployability, the record must reflect some factor which takes the claimant's case outside the norm for such a veteran and not just that the Veteran is unemployed or has difficulty finding employment. Marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. However, consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. Service connection is in effect for asthma and sleep apnea, evaluated as 60 percent disabling; headaches, evaluated as 50 percent disabling; CFS, evaluated as 40 percent disabling; bilateral flat feet evaluated as 10 percent disabling; right long metacarpal boss, recurrent, evaluated as 10 percent disabling; right hand arthritis, evaluated as 10 percent disabling; right lower leg scars with numbness, evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. The combined disability rating is 90 percent. Thus, the Veteran meets the threshold criteria for TDIU. However, the record reflects that the Veteran is self-employed, running his own construction business. He has made arguments about his disabilities affecting his work, causing him to be unable to complete jobs in a timely manner, to attend scheduled appointments. However, while the Board acknowledges that the Veteran's work is impacted by his disabilities, the purpose of the schedular ratings assigned is to compensate for average impairment in earning capacity. The Veteran has not demonstrated that his employment is no longer substantially gainful as a result of his disabilities. The Board acknowledges the opinion of the April 2010 general medical examiner that the Veteran's asthma, chronic fatigue, and severe headaches alone were likely to prevent the Veteran from being employed. Further, the examiner indicated that the right hand arthritis would interfere with most daytime activities and that the flat feet would prevent walking distances or standing for a length of time. However, this opinion does not take into account that the Veteran is, in fact, working despite his disabilities. Thus, the evidence does not establish that the Veteran's disabilities prohibit him from engaging in substantially gainful employment, and the claim of entitlement to TDIU is denied. ORDER Entitlement to a rating in excess of 40 percent for CFS is denied. Entitlement to a rating in excess of 60 percent for asthma prior to September 7, 2010 is denied. Entitlement to a rating in excess of 60 percent for asthma and sleep apnea from September 7, 2010 to August 17, 2011 is denied. Entitlement to a rating of 60 percent, but no greater, for asthma and sleep apnea from August 17, 2011 forward is granted. Entitlement to a rating of 50 percent, but no greater, for headaches prior to April 12, 2010 is granted. Entitlement to a rating in excess of 50 percent for headaches from April 12, 2010 forward is denied. Entitlement to a rating in excess of 10 percent for bilateral flat feet is denied. Entitlement to a total disability rating due to individual unemployability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs