Citation Nr: 1328267 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 08-31 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased (compensable) evaluation for rhinosinusitis. 3. Entitlement to an increased evaluation in excess of 10 percent for a right knee disability, characterized as a right knee sprain. 4. Entitlement to an increased evaluation in excess of 10 percent for a left knee disability, characterized as retropatellar pain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from August 1986 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). By a rating decision issued in January 2008, the RO denied an evaluation in excess of 10 percent for a right knee disability and denied an evaluation in excess of 10 percent for left knee disability. The Veteran submitted a timely substantive appeal in October 2008 after an October 2008 statement of the case (SOC) was issued. In August 2011, the RO denied service connection for sleep apnea and denied an increased (compensable) evaluation for rhinosinusitis. The denials were continued in December 2011. The Veteran submitted a timely substantive appeal addressing those claims in September 2012 after an SOC was issued earlier that same month. The claims for increased evaluations for a right knee and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. In August 2013, the veteran submitted additional evidence pertinent to the appeal after the claims files were transferred to the Board. VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2012). The appellant provided a written waiver of review by the agency of original jurisdiction with the additional evidence. Appellate review may proceed. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's service-connected rhinosinusitis causes or contributes to his obstructive sleep apnea. 2. The Veteran has chronic headaches, sensitivity to cold temperatures, and difficulty breathing due to rhinosinusitis, requiring continuous preventive therapy, but has no polyps or episodes of purulent drainage, and has minimal obstruction due to septal deviation. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2012). 2. The criteria for a 10 percent evaluation for rhinosinusitis, but no higher evaluation, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.97, Diagnostic Codes 6510, 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. As the Veteran's claim for service connection for sleep apnea is granted, it would be adverse to the Veteran's interest to take any further action at this time to obtain waiver of the Veteran's right to have that evidence reviewed by the agency of original jurisdiction prior to the Board's decision. As to the claim for an increased rating for rhinosinusitis, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in October 2010 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in August 2011. Nothing more was required. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The Board observes that service treatment records and post- service private and VA clinical records for the period spanning the pendency of the appeal have been obtained and associated with the claims file. VA examination has been conducted. Virtual VA electronic information database, which includes over 300 pages of VA clinical records, have also been reviewed. The Veteran has not identified any additional relevant records. The Veteran was also afforded a VA examination in November 2010 to assess the nature and severity of his rhinosinusitis. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The report of the November 2010 examination was thorough and more than adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. See 38 C.F.R. § 3.327(a) (2013); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board notes that the Veteran's last examination is over three (3) years old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995). There is no objective evidence indicating that there has been a material change in the severity of the Veteran's rhinosinusitis since the November 201 VA examination. He does not contend otherwise. Discussion of the Veteran's April 2013 Travel Board hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to an increased rating for rhinosinusitis was identified as an issue at the hearing. Information was elicited from the Veteran concerning the symptomatology of the disorder, its severity and how it effected his ability to work. Sources of evidence relevant in this regard were identified during this process. The Board finally notes that VA treatment records were added to the electronic (Virtual VA) record available for appellate review after the RO issued a September 2012 SOC and certified the appeal to the Board. VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2012). During his April 2013 hearing before the Board, the Veteran stated that he wished to have the entire record reviewed with respect to his appeal, and that the record should be reviewed as a whole. Specific reference as made to VA outpatient treatment obtained in 2013. The Veteran's testimony has been reduced to writing, and a hearing transcript is associated with the files available for appellate review. The Board interprets the Veteran's testimony as a request to waive his procedural right to review of this evidence prior to the Board's decision. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. 1. Claim for service connection for sleep apnea Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). For purposes of claims for Veterans' benefits, aggravation is defined as permanent worsening beyond the natural progression expected for the disorder. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). Temporary or intermittent flare-ups of a disease are not sufficient to be considered aggravation of a disorder. 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). 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and analysis The Veteran contends that his sleep apnea is either due to or aggravated by service-connected disabilities, including rhinosinusitis. The Veteran was afforded VA examination in November 2010. The examiner who conducted the VA examination noted that the Veteran had several risk factors which increased the likelihood that he would have sleep apnea, including the Veteran's obesity. The Veteran, who is approximately 6 feet tall, testified that he weighed about 220 pounds at the time of diagnosis of sleep apnea in 2009. He had gained weight, and weighed about 240 pounds at the time of the VA examination in 2010. The VA examiner opined that there was a 50-50 probability that the Veteran's rhinosinusitis was related to his obstructive sleep apnea. He explained that the rhinitis component of the Veteran's service-connected disability increased the risk of obstructive sleep apnea by two times. For reasons that are less than clear, the RO solicited an addendum opinion from the November 2010 examiner. The June 2011 revised noted that the Veteran had a neck circumference over 17 inches, another risk factor for sleep apnea, along with obesity. The examiner opined that the other risk facts the Veteran had for sleep apnea were more likely than the Veteran's rhinosinusitis to cause sleep apnea. The examiner therefore opined that service-connected rhinosinusitis was less than likely the cause of the Veteran's obstructive sleep apnea. In July 2012, the Veteran's VA primary care provider, TV, FNP, provided a clinical opinion on the Veteran's behalf. The opinion states that "it is more likely than not" that the Veteran's long history of rhinitis and sinusitis, "if not the total cause, contributes significantly to his obstructive sleep apnea." In an assessment and plan written in October 2012, TV stated "likely his chronic rhinitis contributes to his sleep apnea." The provider reiterated this statement in a January 2013 treatment note. The Veteran was referred for specialty evaluation (ENT consult). In January 2013, the consulting provider noted that the Veteran had chronic rhinitis, inferior turbinate hypertrophy, and mild septal deviation. The provider stated that the Veteran's turbinate hypertrophy and septal deviation "may contribute to a small degree" to his sleep apnea. At his April 2013 hearing before the Board, the Veteran testified to his belief that his sleep apnea had been present since his service, because certain symptoms he now knew were signs of sleep apnea had been present prior to his service separation in 1995. The Veteran testified that he had not specifically sought medical evaluation of snoring during service, but did mention it to providers during service. April 2013 Travel Board Hearing Transcript (Tr.) pages 8-10. The RO concluded that the report of the June 2011 addendum opinion, which stated that it was not likely that service- connected rhinosinusitis was the cause of sleep apnea, was more probative than the July 2012 opinion of the primary care provider. The Board interprets the July 2012 opinion as an opinion addressing both etiology (causation) and aggravation. The opinion does not specifically state that the Veteran's rhinosinusitis aggravates the symptoms of sleep apnea. However, the Board interprets the statement that the service-connected disability "contributes" to the sleep apnea, "if not the cause," suggests that the provider is addressing aggravation. The provider again stated, in later treatment notes in 2012 and 2013, that the Veteran's rhinosinusitis "contributes to his sleep apnea." Since the later notes make it clear that the Veteran has a long history of sleep apnea, and trials of multiple medications and nasal steroids have failed to control the Veteran's allergies or reduce his symptoms, the evidence is at least in equipoise to warrant a finding that the medical evidence establishes that the Veteran's service- connected rhinosinusitis is a contributing cause of his obstructive sleep apnea. A July 2013 opinion from WKMcM, DO, is consistent with the opinions rendered by TV, FNP. Although the positive opinions are fairly equivocal, and that there are other factors at play in the cause of his sleep apnea, the Board is satisfied that the Veteran's obstructive sleep apnea cannot be clearly dissociated from his service-connected rhinosinusitis. In Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that when it is not possible to separate the effects of the service- connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition. Although Mittleider involved a claim for an increased rating rather than a claim for service connection, the Board finds that it applies here because, as there, the medical professional could not necessarily separate the effects of the service-connected rhinosinusitis and other non-service-connected conditions on the Veteran's obstructive sleep apnea. 2. Claim for increased rating for rhinosinusitis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's rhinosinusitis has been rated by analogy to sinusitis and rhinitis, under 38 C.F.R. § 4.97, Diagnostic Codes (DCs) 6510 and 6522. Ratings for several forms of chronic sinusitis are provided in the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97, DCs 6510 through 6514. DC Code 6510, chronic sinusitis, allows for a 10 percent rating when there are one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is warranted when there are 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. A 50 percent disability rating, the maximum schedular rating, is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The note to that provision defines an "incapacitating episode" of sinusitis as one that requires bed rest and treatment by a physician. Id. Additionally, for 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, a 10 percent rating is warranted. With polyps, a 30 percent rating is warranted. 38 C.F.R. § 4.97, DC 6522. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Facts and analysis Throughout the pendency of this appeal, treatment notes for the Veteran reflect that he complained of headaches and nasal congestion. During VA outpatient treatment in February 2008, the Veteran reported sinus pressure, stuffiness, without relief from medications. The Veteran reported that he wore a hat to reduce sensitivity of his sinuses to temperature changes and air blowing over him. He had used Claritin, but it was not effective to reduce his symptoms. Flunisolide nasal spray was discontinued, as it was not effective; nasonex was prescribed. At the time of November 2010 VA examination, the Veteran was using mometasone nasal spray, with some relief of symptoms, as well as nasal saline flushes one to two times per week. He reported symptoms averaging one per week, with nasal stuffiness, facial pain and pressure, and headaches at least one day per week. There was a "small amount" of non- purulent mucous in each nostril. There was no obstruction of either nostril. Radiologic examination disclosed minimal bowing of the nasal septum, prominence of the left nasal turnbinates, no abnormality of the frontal, ethmoid, or sphenoid sinuses, and an equivocal mucous retention cyst in the right maxillary sinus. In January 2013, the Veteran reported difficulty breathing through his nose, pressure, headache, draining down the back of the throat, and pain, pressure or headache with cold air hitting his head. Rhinoscopy showed a small septal spur to the left and mild deviation, inferior turbinate hypertrophy, and no purulence or polyps. The provider noted that the Veteran had tried every standard medication available without alleviation of allergies. At his April 2013 hearing, the Veteran testified that his rhinosinusitis had increased in severity over the years. He testified that he had "a lot of headache and nasal congestion." He stated that he had used many medications and sinus cleansers, such as salt water and Nasonex over the years, but no medication really works. He testified that he had to cover his head because his allergy symptoms and headaches were worse if cold air hit his head. The Veteran testified that his nose was stopped up even at the VA examination in 2010 when the examiner stated his nasal passages were clear. He stated that his sinuses were very sensitive to cold and temperature changes. Rhinitis, as evaluated under DC 6522, provides a compensable evaluation only if there is 50 percent obstruction of each nasal passage or total obstruction of one nostril. Each diagnostic examination of the Veteran's nose or sinuses, including CT scan and rhinoscopy, disclosed that there were no polyps and minimal or mild obstruction. The Veteran argued, at his hearing, that his nostril should be considered obstructed because he has difficulty breathing due to nasal stuffiness and nasal discharge. However, DC 6522, by its terms, provides a compensable evaluation only if there is an objective, continuous, or fixed obstruction. That DC does not appear to encompass nasal discharge or other intermittent obstruction as a basis for a compensable evaluation. Sinusitis, as evaluated under DC 6510, is compensable if there are three to six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Veteran's outpatient treatment records disclose regular and continuous medical evaluation for complaints of headaches, nasal stuffiness, pain, and drainage during the entire pendency of the appeal. However, no provider or examiner found purulent or crusting drainage on objective examination. The VA outpatient treatment records demonstrate that the Veteran required continuous medication for his service- connected rhinosinusitis. Even with medication, his complaints of weekly facial pressure, pain, and headaches, worsened by air blowing on him or by temperature changes, particularly with cold air, continued. His complaints have remained consistent throughout the pendency of the appeal. The claim is rated by analogy, but the criteria for the analogous disabilities do not encompass the Veteran's complaints and symptoms. The evidence establishes that there are objective findings, such as turbinate hypertrophy, which are consistent with the Veteran's complaints. The Board finds that the Veteran's consistent complaints, together with the objective findings, and the continuous need for medications to control allergy symptoms first noted in service, warrants a 10 percent evaluation by analogy. However, the Board finds that an evaluation in excess of 10 percent is not warranted. In particular, the lengthy medical evidence establishes that the Veteran has not required antibiotic treatment for purulent discharge during the pendency of the appeal. The Veteran himself testified that his service-connected rhinosinusitis did not prevent him from working more than one or two days per year, with the exception of one instance in which he had swelling around the eyes. The Board finds that, if the Veteran had incapacitating episodes, those symptoms could be evaluated under the rating schedule. The 10 percent evaluation assigned by analogy addresses the Veteran's reports and testimony that headaches and nasal stuffiness or discharge decrease his industrial efficiency at times. However, the Veteran himself acknowledges that his rhinosinusitis symptoms, although frequent, are non-incapacitating, an evaluation in excess of 10 percent is not warranted. Extraschedular Consideration The Board next considers whether the Veteran is entitled to a rating in excess of 10 percent for the service-connected rhinosinusitis at issue in this decision. An extraschedular evaluation, that is, an evaluation higher than the assigned schedular evaluation, may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. See Floyd v. Brown, 9 Vet. App. 88 (1996). The Court additionally held that the Board must address referral under § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. See Shipwash v. Brown, 8 Vet. App. 218, 277 (1995). The Court has further held that VA was within its discretion to interpret § 3.321(b)(1) as limiting consideration for extraschedular ratings to individual service-connected disabilities and not to multiple service-connected disabilities on a collective basis. See Johnson v. Shinseki, 26 Vet. App. 237, 241-45 (2013). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. As discussed above, the criteria of the applicable Diagnostic Codes, as interpreted by analogy, address the symptoms manifested by the Veteran. In particular, the Veteran's complaints of frequent, but non-incapacitating headaches, facial pain, pressure, nasal congestion, and non- purulent drainage, have been considered in the rating assigned. The schedular criteria allow higher ratings based on purulent drainage, need for antibiotic treatment, incapacitating episodes, or other symptoms not manifested by the Veteran during the pendency of the claim. The clinical evidence fails to show that the disability picture created by the service-connected rhinosinusitis results in exceptional or unusual symptoms or an unusual disability picture which is not addressed by analogy. The Veteran's statements and testimony do not set forth any symptom that is so unusual that it is not adequately addressed in the rating by analogy. Furthermore, the Board notes that all symptoms relating to each service-connected disability were contemplated in evaluating it under the schedular criteria by analogy. Consequently, the Board finds that the evidence fails to establish that VA's rating schedule is inadequate to fully compensate the Veteran's service-connected disabilities. If the analysis for extraschedular consideration proceeds to the second step, the criteria for proceeding from the second step to the third step of the analysis are not met. In particular, the Veteran's rhinosinusitis resulted in no more than one incapacitating episode during the pendency of this appeal. The Veteran was hospitalized for treatment of other service-connected disabilities and for disorders for which service connection is not in effect, but was not hospitalized for rhinosinusitis. The disability does not present such marked interference with industrial capability as to warrant referral for an extraschedular consideration. The preponderance of the evidence is, therefore, against finding that referral for extraschedular consideration is warranted pursuant to the provisions of 38 C.F.R. § 3.321(b). Finally, although the Veteran has submitted evidence of medical disabilities, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He has repeatedly indicated that he works on a full-time basis. The question of entitlement to a total disability rating based on individual unemployability due to a service- connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER The appeal for service connection for sleep apnea is granted. A 10 percent evaluation for rhinosinusitis, but no higher evaluation, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. (CONT. ON NEXT PAGE) REMAND At his 2013 hearing before the Board, the Veteran testified that he had locking and instability of both knees, that his knees would "give out" and he would stumble. Tr. 17, 18. He also stated that he had problems with coordination, and that if he rushed, he would stumble. The Veteran also testified that he had knee braces. Such is suggestive of a worsening of his knee disability The record shows that the Veteran has several disorders that could affect his coordination and ability to ambulate, including a spine disorder, foot neuropathy, for which the Veteran requires custom orthotics for both feet, and the Veteran has been advised that medications he takes may affect his coordination, balance, and alertness. The Board also notes that, although knee braces were issued, the Veteran told his providers that the braces did not help and that he did not use them. The Board notes that VA examiners and providers have noted the Veteran's complaints of knee buckling, but have found no objective findings of laxity or instability of either knee and have not assigned a diagnosis of locking or instability of the knees. See, e.g., January 2013 outpatient treatment note ("trial of knee braces, not benefit"); June 2012 VA outpatient treatment note ("Describes buckling and pain with stair climbing and descending. . . . MRI of both knees were nondiagnostic. . . . No effusion or laxity. . . . . Persistent knee pain etiology to be determined.") The Veteran is competent to testify that he falls or stumbles or has episodes of his knee giving way, but, in the absence of medical evidence attributing these occurrences to the service-connected knee disabilities, the Board finds that additional medical evidence is required to determine the cause of the reported manifestations of disability. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's current VA clinical records from January 2013 to the present, as well as records of any diagnostic examinations of the knee conducted in 2012 or 2013, to include bone scans; do not associate duplicate records with the claims files or electronic files. 2. Afford the Veteran an opportunity to identify any non-VA provider or treating facility. 3. Afford the Veteran an opportunity to submit or identify any alternative evidence which might assist him to substantiate a claim that he has instability of the knees, to include records from an employer, such as sick leave records, safety records, records of treatment for any fall, or the like. 4. Afford the Veteran VA orthopedic examination of knees. The claims folder and a copy of this Remand should be made available to the examiner for review in connection with the examination. The examiner must indicate that pertinent documents in the claims folders were reviewed. The examiner should review VA examination reports and treatment records, and the Veteran's testimony at his April 2013 Board hearing. The Veteran should be asked to bring his knee braces, his cane, custom orthotics, special shoes, or any other devices or special items he uses while walking or to assist in ambulation. All necessary tests and studies, including range of motion studies, should be conducted. The report should discuss the examiner's objective evaluation for any weakened movement of either knee, excess fatigability with use, incoordination, painful motion, or pain with use, and provide an opinion as to how those factors result in any additional limitation of function of either knee. The examiner should specifically address the Veteran's functional loss in each knee due to flare ups and offer an opinion as to whether there are additional limits on functional ability during flare-ups. The examiner should then answer the following questions: Is there objective evidence that the Veteran experiences buckling, locking, instability, subluxation, stumbling or incoordination? If so, is buckling, locking, instability, subluxation, stumbling or incoordination due to a service-connected right knee disability or a service-connected left knee disability? Are the Veteran's reports of knee buckling, locking, instability, subluxation, stumbling, or incoordination attributable to a disorder other than the Veteran's service-connected right and left knee disabilities? What diagnoses should be assigned for the Veteran's reported buckling, locking, instability, subluxation, stumbling or incoordination during ambulation? In answering each question, the examiner must comment on the Veteran's lay statements as to onset of the symptoms attributed to the claimed disorder, diagnosed or undiagnosed. The examiner must explain the rationale for all opinions given. If any requested opinion cannot be provided without resort to pure speculation, the examiner should explain why the opinion cannot be provided and identify information that might assist to provide a basis for a non-speculative opinion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 5. The directions set forth in this Remand and the claims folder should be carefully reviewed to ensure that the foregoing requested development has been completed. Then, the claims on appeal should be readjudicated and the claimant should be notified of that adjudication. If any benefit requested on appeal is not granted to the claimant's satisfaction, the claimant and his representative should be furnished a supplemental statement of the case which addresses all of the evidence obtained. The claimant should be afforded an opportunity to respond. 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs