Citation Nr: 1327430 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 06-34 349A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for migraine headaches from May 19, 2003 through August 7, 2007, and in excess of 50 percent from August 8, 2007, forward. 2. Entitlement to an initial compensable rating for an ovarian cyst condition with pelvic pain. 3. Entitlement to an initial rating in excess of 10 percent for allergic rhinitis from May 19, 2003 through October 15, 2008, and in excess of 30 percent from October 16, 2008, forward. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from May 1998 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for headaches, left ovarian cyst, and rhinitis, each of which was assigned an initial non-compensable evaluation, effective from May 2003. Because all of the issues on appeal involve disagreement with the initial rating assigned following the award of service connection, the Board has characterized these matters in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). While this appeal was pending increased initial ratings were granted for service-connected headaches and rhinitis, and further staged increased ratings were also granted. However, as higher ratings for both disabilities are assignable for at least a portion of the appeal period applicable to each of those claims and the Veteran is presumed to seek the maximum available benefit, those claims remain viable and have been recharacterized as shown on the title page to reflect the issues currently in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The matters on appeal were previously before the Board in September 2010, at which time they were remanded for additional action. As will be further explained herein, there has been substantial compliance with the actions requested in that Remand and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). In this regard, the Board points out that subsequent to that Remand, the Veteran took steps to timely perfect an appeal pertaining to the increased initial rating claims for allergic rhinitis and ovarian cyst with pelvic pain; and they are properly in appellate status. In November 2012, the Veteran provided testimony before the undersigned Veterans Law Judge at a travel Board hearing. A transcript of that hearing is on file. At the hearing, additional evidence was received for the file which was accompanied by a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. An August 2013 review of the Virtual VA (VVA) paperless claims processing system reveals that VA/CAPRI records (dated to February 2012) were printed in June 2012, and considered by the RO as reflected in the June 2012 SSOC. The issue of entitlement to sinusitis, to include as secondary to service connected rhinitis, has been raised by the record (March 2009 VA examination report), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to an initial compensable rating for an ovarian cyst with pelvic pain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the entirety of the appeal period extending from May 19, 2003, the Veteran's headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. For the portion of the appeal period extending from May 19, 2003 to December 9, 2007, the Veteran's rhinitis has been manifested by symptoms approximating greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. 3. For the portion of the appeal period extending December 10, 2007 forward, the Veteran's rhinitis has been manifested by nasal polyps. 4. For the entirety of the appeal period, service connected headaches and allergic rhinitis have not presented an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. For the entirety of the appeal period extending from May 19, 2003, the criteria for an initial disability rating of 50 percent, but no higher, for headaches are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2012). 2. For the portion of the appeal period extending from May 19, 2003 to December 9, 2007, the criteria for an initial compensable evaluation for allergic rhinitis in excess of 10 percent, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6522 (2012). 3. For the portion of the appeal period extending from December 10, 2007 forward, the criteria for a 30 percent evaluation for allergic rhinitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6522 (2012). 4. Referral for consideration of an extraschedular evaluation is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. With respect to the higher rating claims on appeal, the VCAA's notice requirements were satisfied by way of a letter sent to the Veteran dated in May 2004 and May 2005, (addressing the elements of service connection prior to the grant of service connection for headaches, rhinitis and ovarian cyst with pelvic pain). As this is an appeal arising from the award of service connection for these conditions, the notice that was provided before service connection was granted was legally sufficient and the VCAA's notice requirements have been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues on appeal has been obtained. The Veteran's service treatment, and post-service private and VA treatment records were obtained and the file includes arguments, contentions, and statements of the Veteran and her representative. The file also contains a transcript of the Veteran's November 2012 Board hearing testimony as well as additional evidence presented at the hearing which was accompanied by a waiver. In January 2009, the Veteran clarified for the record that she had not filed a claim for benefits with the Social Security Administration. In November 2011, VA requested evidence from specific private providers as were identified by the Veteran. Unfortunately, no records from those sources could be obtained and the Veteran was advised of this (June 2012 SSOC). VA examinations relating to headaches and allergic rhinitis were conducted on several occasions between 2005 and 2011; the reports of those examinations are of record, and the Veteran has not suggested that any VA examination report was in any way inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Thus, the Board finds that VA has fully satisfied VA's duty to assist. The RO/AMC has substantially complied with the actions sought on Board remand of 2010. See, e.g., D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial compliance, rather than strict compliance, with the Board's remand directives is required). Moreover, on these facts, additional efforts to assist or notify the Veteran 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 appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Furthermore, the Veteran was afforded a Board hearing in November 2012. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the VLJ specifically noted the issues on appeal. The Veteran was assisted at the hearing by an accredited representative from the American Legion. The VLJ and the representative asked the Veteran questions that addressed the elements necessary to substantiate his claims for higher ratings. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for benefits. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Therefore, she will not be prejudiced by the Board proceeding to the merits of her claims, at this juncture. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson, 12 Vet. App. at 126, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the present appeal involving migraine headaches and allergic rhinitis. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found -a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the 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). 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); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. A. Headaches The Veteran filed an original service connection claim for headaches in May 2004, within a year of her discharge from service in May 2003. Private medical records of Dr. D.G. dated in 2004, reflect that the Veteran was seen in March for complaints including headaches. A history of migraine headaches diagnosed in 2002 was noted. She described her headaches as severe and throbbing, with associated symptoms including phonophobia and photophobia. It was noted that pain improved with NSAIDs, and that she was using Maxalt and Midrin; prescriptions for which were refilled on this visit. Common migraine was assessed. In an August 2004 rating decision, the RO established service connection for headaches, for which an initial non-compensable evaluation was assigned, effective from May 2003. When seen by Dr. D.G. in September 2004, the Veteran indicated that her migraines were increasing in frequency, and that she was not getting relief with medications. Headaches, which could well be worsening due to the Veteran's job, were diagnosed. A private MRI report dated in October 2004 revealed that a study of the brain was negative. When seen by Dr. D.G. in January 2005, the Veteran complained of intense migraines which prevented her from performing daily routine activities. She indicated that she had been fired from her previous job due to migraines, and that no one would hire her because of her condition. Migraine, which may have been aggravated by superimposed sinusitis, was diagnosed. In 2005, the Veteran presented evidence dated in January 2005 to the effect that she had been discharged from her job, due to absenteeism described as due to circumstances beyond her control. In a May 2005 statement, the Veteran explained that the circumstances involved illness. The Veteran was seen for a neurological evaluation by Dr. J.A. in April 2005, in conjunction with her migraine and tension headaches. It was mentioned that she was using several types of medications for headaches. The Veteran reported that her headaches were no longer daily, and were occurring one time a week, lasting for 1 to 2 days. Migraine and tension type headaches were diagnosed. A VA examination was conducted in May 2005. The Veteran reported having headaches occurring 3 times a week and lasting for up to 3 days, estimated as 9/10 in severity and accompanied by fatigue and weakness. It was noted that she was taking several medications for this condition and that sitting in a dark room alleviated some symptoms. She indicated that her level of activity could not be maintained when headaches occurred and reported that she could not drive to work and would often call in sick because she was incapacitated due to headaches. It was noted that the Veteran had been worked at a call center in a warehouse during which time her headaches increased, but was no longer working there. Chronic headaches were diagnosed. By rating action of August 2005, a 30 percent evaluation was granted for headaches, effective from February 2005. A VA examination of headaches was conducted in October 2006. The Veteran indicated that the course since the onset of her headaches was progressively worse. The report reflected that the Veteran had severe headaches once or twice a week, assessed as 8-9/10 in severity, and resulting in difficulty performing an occupation and activities of daily living. It was noted that less than half of the attacks were prostrating. Migraine headaches were diagnosed, resulting in a work problem of absenteeism. The examiner noted that the Veteran had been fired from a previous job at a call center and had missed work 30 days in a 6 month period due to migraines, as she did not have medication at that time. The report indicated that she was now employed with VA at a call center for 21/2 months, and had to get a note from her doctor regarding migraines and her treatment. It was noted that at this job, she had missed 1 day of work, had gone home early one day, and had missed a day for the examination. It was reported that she had low tolerance to the noisy environment and wore sunglasses when she had a headache to keep the light out. By rating action of October 2006, a 30 percent evaluation was granted for headaches, effective from May 2003. The file contains a Certificate of Health Care Provider for the US Department of Labor, dated August 8, 2007, and signed by Dr. D.G., indicating that the Veteran had serious health conditions including migraine headaches. Therein, it was stated that when the Veteran was incapacitated, she could need up to 4 days off, and that this could occur up to twice a month. It was further certified that when the Veteran was incapacitated, she was unable to perform work of any kind. Pursuant to a September 2010 Remand, a VA neurological examination was conducted in July 2011. The Veteran reported having daily severe headaches, less than half of which were prostrating. Associated symptoms included vomiting, nausea, photophobia, and phonophobia. Response to treatment was described as fair. The report indicated that the Veteran was employed full time by VA as a support assistant and had been employed there for 5 to10 years. Headaches were noted to have resulted in increased tardiness and absenteeism. The report indicated that the Veteran had missed approximately 4 weeks from work due to headaches, and associated care and treatment. Migraines were diagnosed. By rating action of February 2012, a 50 percent evaluation was granted for headaches, effective from August 8, 2007. In November 2012, the Veteran presented testimony at a travel Board hearing. The Veteran stated that she had migraines every day with associated symptoms including nausea, vomiting and sensitivity to light. She indicated that a lot of times her co-workers drove her home from work because she was unable to due to severe headaches. The Veteran indicated that she sometimes missed up to a week of work in a month, due to headaches and sinus problems. At the hearing, the Veteran presented additional evidence which was accompanied by a waiver, which included her leave record dated from October 2006 to November 2012, reflecting copious amount of annual and sick leave used during that time. Analysis In this case, the RO has awarded staged ratings for the Veteran's migraine headaches-a 30 percent rating from the May 19, 2003 effective date of the award of service connection, and a 50 percent rating from August 8, 2007. Hence, the Board will consider the propriety of the rating at each stage, as well as whether any further staged rating is warranted. The provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100, provide for a 50 percent rating for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for migraine with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is provided for migraine with characteristic prostrating attacks averaging one in 2 months over last several months. The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The Board observes that the Veteran is already in receipt of the maximum schedular evaluation of 50 percent for headaches for the portion of the appeal period extending from August 8, 2007 forward. As such, no higher schedular evaluation is available and the only additional matter for consideration is whether an extraschedular evaluation may be warranted for headaches, as discussed further below. The Veteran maintains that a 50 percent evaluation for headaches is warranted for the entirety of the appeal period extending from May 19, 2003, forward. Having reviewed the evidence with particular attention to the portion of the appeal period between May 19, 2003 to August 7, 2007, the Board finds that a 50 percent evaluation is in fact warranted for the entirety of the appeal period. In essence, there are two components to the single criterion for a 50 percent rating. The first is the presence of very frequent completely prostrating and prolonged attacks, and the second is resulting severe economic inadaptability. Private medical records of 2004, and VA examinations of 2005 and 2006 all reflect that the Veteran experienced very frequent completely prostrating and prolonged attacks. Specifically, the May 2005 VA examination report mentioned that the Veteran reported having headaches occurring 3 times a week and lasting for up to 3 days, estimated as 9/10 in severity and accompanied by fatigue and weakness. The October 2006 VA examination report reflected that the Veteran had severe headaches once or twice a week, assessed as 8-9/10 in severity, and resulting in difficulty performing an occupation and activities of daily living. Regarding the frequency of attacks, it would appear that they have essentially since May 2003, exceeded the one per month necessary for a 30 percent rating. Thus, the evidence throughout the period of this claim indicates that the Veteran experiences very frequent completely prostrating and prolonged attacks. Regarding the economic impact of the headaches, the Veteran presented evidence dated in January 2005 to the effect that she had been discharged from her job, due to absenteeism described as due to circumstances beyond her control. Other evidence indicates that implicates the Veteran's headaches as the source of her illness. In this regard, the May 2005 VA examination report reflects that the Veteran reported that her level of activity could not be maintained when headaches occurred and reported that she could not drive to work and had often called in sick because she was incapacitated due to headaches. In the October 2006 VA examination report, the examiner noted that the Veteran had been fired from a previous job at a call center and had missed work 30 days in 6 months due to migraines, as she did not have medication at that time. The report indicated that the Veteran was employed by VA. In sum, there is significant evidence demonstrating severe economic inadaptability for the time period prior to August 8, 2007. In light of the findings, discussed above, the Board finds that the criteria for a 50 percent disability rating for headaches are met for the entire period of this appeal, and the appeal is granted. As a 50 percent rating is the maximum schedular rating available for headaches, the Board finds that discussion of a higher schedular rating is not warranted. B. Allergic Rhinitis The Veteran filed an original service connection claim for sinusitis in May 2004. Private medical records of Dr. D.G. dated in 2004, reflect that the Veteran was seen in March for complaints including allergy symptoms. A 3 year history of allergies was noted. Symptoms including sneezing, itchy nose, ocular itching and sinus pressure were noted. Examination of the nose was normal. Allergic-rhinitis, pollen-induced, was diagnosed. When seen in June 2004, prescriptions for Singulair and Allegra were refilled and examination of the nose was normal. In an August 2004 rating decision, the RO established service connection for allergic rhinitis (described as also claimed as sinusitis and ear infections), for which an initial non-compensable evaluation was assigned, effective from May 2003. When seen by Dr. D.G. in September 2004, examination of the nose revealed markedly swollen turbinates on the right side, and sinus tenderness bilaterally. It was mentioned that the swelling could be sinusitis. Similar clinical findings made in October 2004 were diagnosed as acute maxillary sinusitis. Maxillary sinus tenderness was documented in a March 2005 record in which the diagnoses included acute maxillary sinusitis. Images of the paranasal sinuses taken in April 2005 revealed that they were clear. A VA examination of the nose was conducted in May 2005. The Veteran described symptoms including sneezing, red eyes, dry nose and throat and occasional pain. Examination of the nose was clear. The turbinates were visible and clear bilaterally, without effusion or erythema, as specifically noted in the report. There was no nasal obstruction found on examination. X-ray films of the sinuses revealed no significant abnormalities. Chronic allergies, primarily involving the nose and maxillary sinus, were diagnosed. A private CT scan of the sinuses dated in August 2005 revealed findings consistent with sinusitis, nasal septal deviation to the left, and mucosal thickening occluding the right and left ostiomeatal units. In September 2005, the Veteran was seen for evaluation of nasal allergies. She reported having trouble breathing through the nose, as well as intermittent problems with sinus congestion and headaches. Examination revealed nasal mucosal congestion and septal deviation to the left. Diagnoses of allergic rhinitis and recurrent sinusitis were made. In December 2007, the Veteran underwent nasal surgery including septoplasty, for treatment of recurrent sinusitis and nasal airway obstruction secondary to deviated nasal septum. A mention of polypoid disease in both nasal passages was made, and it was noted that a portion of this was removed on both sides. A VA examination was conducted in March 2009, at which time the Veteran complained of persistent sinus infections. Her complaints included dry nose, headaches, purulent discharge and crusting around the nose. Physical examination revealed a large nasal polyp in the right nasal cavity. It was also noted that there was significant rhinitis and erythema present. Nasal obstruction of 60 percent on the left side and 80 percent on the right side was reported. Chronic sinusitis with recurring exacerbations after surgery was diagnosed. The examiner indicated that it was most likely that these symptoms were a consequence of the service-connected condition. By rating action of May 2009, a 30 percent evaluation was granted for allergic rhinitis, effective from October 16, 2008. Private medical records of Dr. M.A.A. dated from 2007 to 2011 reveal complaints relating to the sinuses and include diagnoses of rhinitis and sinusitis. There is no mention of polyps in those records. A VA record of June 2010, mentions a nasal polyp on the right side. A VA examination of the sinuses was conducted in September 2010. The Veteran's complaints included increased sinus/nasal symptoms and frequent sinus headaches. Findings included difficulty breathing and occasional hoarseness. Rhinitis symptoms were described as nasal congestion, sneezing, itchy nose, and watery eyes. The examination specifically indicated that no polyps were found and that nasal obstruction was 20 percent on the right side and 60 percent on the left side. The Veteran reported that she had missed 4 weeks from work during the year due to her sinus/nasal condition. Chronic allergic rhinitis and recurrent sinusitis were diagnosed. In a June 2012 rating action, an increased initial evaluation of 10 percent was granted for rhinitis, effective from May 19, 2003, and a 30 percent evaluation was granted from October 16, 2008. In November 2012, the Veteran presented testimony at a travel Board hearing. The Veteran stated that she had constant sinus infections. She mentioned that she had been told by a doctor in 2005 that she had polpys. She also mentioned that polyps had been removed during nasal surgery. At the hearing, the Veteran presented additional evidence which was accompanied by a waiver, which included her leave record dated from October 2006 to November 2012, reflecting copious amount of annual and sick leave used during that time. Analysis Again, the Veteran's claim for a higher evaluation for allergic rhinitis was placed in appellate status by her disagreement with the initial rating award. In such circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" rating. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Accordingly, the Veteran seeks entitlement to an initial rating in excess of 10 percent for allergic rhinitis for the portion of the appeal period extending from May 19, 2003 to October 15, 2008; and a rating in excess of 30 percent for the appeal period extending from October 16, 2008 forward. The Veteran's rhinitis has been evaluated under Diagnostic Code 6522, which provides ratings for allergic or vasomotor rhinitis, for the entirety of the appeal period. Allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, is rated 10 percent disabling. Allergic or vasomotor rhinitis with polyps is rated 30 percent disabling. 38 C.F.R. § 4.97 (2012). A 30 percent evaluation is the maximum rating assignable under this diagnostic code. At the outset, the Board notes that there is a question in this case of whether sinusitis is present in addition to rhinitis. The provisions of 38 C.F.R. § 4.97, diagnostic codes 6510 to 6514, are used for the evaluation of various forms sinusitis. Under the General Rating Formula, a noncompensable disability rating is warranted for sinusitis detected by X-ray only. A 10 percent disability rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. A 30 percent disability rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. Clinical evidence does reflect that sinusitis and rhinitis have been diagnosed both separately and in tandem on several occasions since 2004. As is set forth above, VA's Schedule for Rating Disabilities considers allergic rhinitis and sinusitis as separate disabilities for rating purposes. See 38 C.F.R. § 4.97, DC 6510-14 (sinusitis) and DC 6522 (allergic or vasomotor rhinitis). If co-existing, separate disability ratings may be assigned for both disorders. 38 C.F.R. § 4.96(a). However, in this case, service connection has never been established for sinusitis on a direct or secondary basis. The Board acknowledges that a March 2009 VA examination report suggests that sinusitis may be etiologically linked to service-connected rhinitis and has accordingly referred the issue of entitlement to service connection for sinusitis to the RO for initial formal adjudication and review. As there is no overlap of symptomatology when evaluating rhinitis and sinusitis under VA criteria, the Board finds no impediment to adjudicating the rhinitis disability claim as it is not inextricably intertwined with the sinusitis claim. See generally Parker v. Brown, 7 Vet. App. 116 (1994) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Under the circumstances, given that there now in essence exists a pending service connection claim for sinusitis, the Board will specifically limit this analysis to the matter of entitlement to increased initial and staged ratings for service-connected rhinitis, in appellate status. In this regard, the Board observes that the rating criteria under diagnostic code 6522 used to evaluate allergic rhinitis are the most appropriate provisions for application in this case. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992); 38 C.F.R. §§ 4.20, 4.21 (2012). The Board observes that given the specificity of the criteria used for the evaluation of allergic rhinitis under diagnostic code 6522, it is the clinical evidence that is of the most probative value, in terms of credibility and competency, in this case for purposes of evaluating this condition. In this regard, the Veteran is certainly competent to report her symptoms. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007) (veteran is competent to testify as to symptomatology capable of lay observation). In this regard, the rating criteria contemplate a showing of very specific findings (polyps), the nature of which are often identified only by clinical tests, X-ray films and CT scans. Accordingly, a lay person such as the Veteran lacks the competency to accurately assess the presence or absence of such symptoms, and as such, the Board attaches greater probative weight to the clinical findings of skilled professionals, as opposed to lay statements of symptomatology, as pertains to this particular clinical finding. The clinical evidence in this case clearly reflects that for the portion of the appeal period dated from May 19, 2003 to December 9, 2007, there was no clinical indication of polyps. In hearing testimony presented in 2012, the Veteran stated that polyps had been found by a doctor in 2005. However, having reviewed imaging reports, private medical records and a VA of examination report all dated in 2005, the Board must conclude that the clinical evidence was consistently and repeatedly negative for any evidence of polyps. Accordingly, for the portion of the appeal period extending from May 19, 2003 to December 9, 2007, the criteria for an initial compensable evaluation for rhinitis in excess of 10 percent are not met. However, there was specific documentation of polypoid disease in both nasal passages as mentioned in an operative report of December 10, 2007. While not entirely clear, the Board must assume that polyps would likely be present as part and parcel of polypoid disease, warranting the assignment of a 30 percent evaluation. Accordingly, the criteria for the assignment of a 30 percent evaluation, based on evidence of allergic rhinitis with polyps, are met for the portion of the appeal period extending from December 10, 2007 forward. As a matter of clarification, the Board notes that a 30 percent evaluation had been assigned by the RO for rhinitis in a June 2012 rating action, effective from October 16, 2008. Pursuant to this decision, the Board has found clinical evidence of polyps prior to October 16, 2008 and has essentially corrected the effective date for the assignment of a 30 percent evaluation for rhinitis, representing a partial grant of the claim and entitling the Veteran to additional retro-active compensation by virtue of this decision. See 38 C.F.R. § 3.31. The Board observes that by virtue of this decision the Veteran is now in receipt of the maximum schedular evaluation of 30 percent for allergic rhinitis for the portion of the appeal period extending from December 10, 2007 forward. As such, no higher schedular evaluation is available for that period and the only additional matter for consideration is whether an extraschedular evaluation may be warranted for allergic rhinitis, as discussed further below. Consistent with the findings made herein, the following determinations have been made: (1) for the portion of the appeal period extending from May 19, 2003 to December 9, 2007, the criteria for an initial evaluation for rhinitis in excess of 10 percent is denied; (2) for the portion of the appeal period extending from December 10, 2007 forward, the criteria for a 30 percent evaluation for rhinitis are met. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine as applicable. Gilbert, 1 Vet. App. 49, 53-56 (1990); See 38 U.S.C.A. § 5107(b) (West 2002). C. Extraschedular Consideration and TDIU Additionally, the Board finds that there is no showing that, any point since the effective date of the award of service connection, the Veteran's service-connected migraine headaches or allergic rhinitis have reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis under the provisions of 38 C.F.R. § 3.321 The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 111. In this case, the Board finds that the schedular criteria have been are adequate to rate the disability under consideration at all pertinent points. The symptoms described by the Veteran and as reflected in the clinical records fit squarely within the criteria found in the relevant diagnostic codes (8100 and 6522) used for evaluating headaches and allergic rhinitis, respectively. In short, as reflected in the above discussion, the rating criteria contemplate not only the Veteran's symptoms but the severity of the conditions at each stage under consideration. Therefore, as the assigned ratings are adequate, the next step of whether an exceptional disability picture is presented need not be addressed. The threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final matter, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran is still employed, and there is no indication that she is, in fact, rendered unemployable due to her migraine headaches and/or allergic rhinitis. As such, consideration of a TDIU is not warranted at this point. ORDER For the entirety of the appeal period extending from May 19, 2003 an initial 50 percent disability rating for migraine headaches, but not higher, is granted subject to the regulations controlling disbursement of VA monetary benefits. For the portion of the appeal period extending from May 19, 2003 to December 9, 2007, entitlement to an initial evaluation for rhinitis in excess of 10 percent, is denied. For the portion of the appeal period extending from December 10, 2007, entitlement to a 30 percent evaluation for allergic rhinitis is granted, subject to the regulations controlling disbursement of VA monetary benefits. Referral of the case for extra-schedular consideration is not warranted. REMAND The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The Veteran's service-connected ovarian cyst with pelvic pain has been assigned a non compensable evaluation for the entirety of the appeal period extending from May 19, 2003, under 38 C.F.R. § 4.116, Diagnostic Code 7615, used for the evaluation of ovary disease, injury, or adhesions. Under that code a non compensable (0 percent) rating is assigned for symptoms that do not require continuous treatment. A 10 percent rating is to be assigned for symptoms that require continuous treatment. A 30 percent rating is to be assigned for symptoms not controlled by continuous treatment. See 38 C.F.R. § 4.116. The RO has denied the claim finding that while the Veteran has at times had symptoms, these have not a required continuous treatment. A brief review of the facts reflects that in March 2001 while she was still on active duty, the Veteran underwent surgical treatment for a right ovarian cyst. Private medical records reflect that the Veteran was seen in January 2005 with complaints of abdominal pain, assessed as possibly due to a ruptured ovarian cyst. A private pelvic CT scan of April 2005 was essentially normal. On VA examination of May 2005, there was no indication of an ovarian cyst or pelvic mass. Diagnoses included pelvic pain secondary to pelvic adhesions and possible interstitial cystitis. A private medical record of May 2007 reflects that a clinical assessment of polycystic ovaries was made and that it was recommended that the medication Metformin be started. In August 2007, a CT scan revealed a probable right ovarian cyst. A VA gynecological examination was conducted in May 2008, at which time the Veteran reported that in May 2007, polycystic ovary syndrome was diagnosed which was treated with birth control pills and Metformin. She also mentioned that pain had been treated by a private gynecologist Dr. D., in Florida, for which Naproxen had been prescribed. The diagnoses included polycystic ovary disease not likely caused by or related to the gynecologic conditions or procedures during service. VA records dated between 2009 and 2012 also reveal complaints of pelvic pain and an assessment of polycystic ovary syndrome. In hearing testimony provided in 2012, the Veteran indicated that she suffered from severe pelvic pain and that polycystic ovarian syndrome had been diagnosed which was treated with birth control pills and Metformin, to control the cysts, as well as Naproxen for pain. She indicated that the condition required continuous treatment which she felt did not help at all. The Board points out that it has now been more than 5 years since the Veteran last underwent a VA gynecological examination in 2008. The evidence and testimony raise several matters requiring clarification in this case prior to adjudication. Such issues include whether polycystic ovary syndrome may be considered part and parcel of the service-connected ovarian cyst condition; whether the service connected condition has required continuous treatment; and whether symptoms are controlled by continuous treatment. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion of an increase in severity since the last examination, as is essentially the case here. See 38 C.F.R. § 3.159 (2012); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Therefore, a new and contemporaneous examination should be administered to determine the manifestations and level of severity associated with the Veteran's service-connected ovarian cyst condition with pelvic pain. Finally, the Board observes that the Veteran receives regular treatment for her ovarian cyst condition/pelvic pain through VA. In this regard, it appears that VA records are current through January 2012. Accordingly, relevant VA records of treatment, hospitalization and examination, dated from February 2012 forward will be requested for the file. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, VA must obtain outstanding VA records, as have been identified in this case. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall provide the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to her increased initial rating claim for an ovarian cyst condition with pelvic pain. Appropriate steps should be taken to obtain any such identified record. If any identified records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and include a copy of such in the claims file. The Veteran must be notified of the attempts made to obtain outstanding records, informed as to why further attempts would be futile, and allowed the opportunity to obtain or provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all records of VA treatment, hospitalization and evaluations from February 2012 forward, and associate them with the file (paper or virtual , as appropriate). 3. The Veteran must then also be afforded the appropriate VA examination to determine the nature and extent of her service-connected gynecological disability, characterized as ovarian cyst condition with pelvic pain. Any indicated diagnostic tests and studies must be accomplished. The claims file must be made available to and be reviewed by the examiner in conjunction with the requested study. All pertinent symptomatology and clinical findings must be reported in detail. Following a review of the service and post-service medical records and the clinical examination, and with consideration of the Veteran's lay statements and testimony, the examiner is asked to address the following questions: a. Provide diagnoses of the Veteran's currently manifested gynecological conditions, explaining the symptomatology associated with each. Specifically identify all symptoms associated with the Veteran's service-connected ovarian cyst with pelvic pain. b. Is it at least as likely as not (meaning a likelihood of at least 50 percent); that any gynecological condition diagnosed on examination, or since 2003 - to include polycystic ovarian syndrome, is at least as likely as not etiologically related to, or part and parcel, of the Veteran's service connected ovarian cyst with pelvic pain? c. Provide an assessment as to whether the Veteran's service-connected gynecological condition has required continuous treatment throughout the appeal period extending from May 2003, noting any periods when the symptoms did not require such treatment. d. Provide an assessment as to whether the Veteran's service-connected gynecological condition, to the extent that continuous treatment has been required, has been controlled by that treatment that was instituted, noting any periods from May 2003 forward when this has not been the case. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The report prepared should be typed. In answering the questions posed above, the examiner is advised that the Veteran is generally considered competent to provide lay reports relating to matters within her personal knowledge, and that her reports must be considered in formulating the requested opinion. In providing these opinions, the examiner is requested to evaluate the Veteran's lay history as appropriate and pertinent. If the Veteran's lay reports are discounted, the examiner should provide a rationale for doing so. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 5. The AOJ will then readjudicate the Veteran's claim for an initial compensable rating for an ovarian cyst condition with pelvic pain. Readjudication of the claim should include consideration of all evidence added to the file since the June 2012 SSOC was issued, and should reflect consideration of whether increased initial, staged ratings and/or an extraschedular evaluation is warranted. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. T he Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs