Citation Nr: 1333601 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-20 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased rating for residuals of a fractured nose, currently evaluated as 50 percent disabling. 2. Entitlement to service connection for a disability manifested by snoring, to include as secondary to residuals of a fractured nose. 3. Entitlement to service connection for a disability manifested by breathing problems, to include as secondary to residuals of a fractured nose. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. These matters come before the Board of Veterans' Appeals (Board) from June 2005 and October 2007 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal. In June 2010, the Board remanded the appeal for additional development, which included the issuance of a statement of the case (SOC) with respect to the Veteran's increased-rating claim. While such an SOC was issued later that month, the Veteran did not respond by filing a formal substantive appeal (VA Form 9). Nevertheless, the record reflects that the agency of original jurisdiction (AOJ) accepted the Veteran's July 2010 statement in support of claim in lieu of a VA Form 9. Moreover, the AOJ has proceeded to construe the increased-rating claim as being on appeal, and the Veteran's correspondence indicates that he too considers that issue to be in appellate status. Accordingly, the Board has the authority to assume jurisdiction over that issue without prejudice to the Veteran. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (finding that VA waives objection to the timeliness of a substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). As a final introductory matter, the Board acknowledges that, in addition to the issues listed on the title page, it has taken jurisdiction of the Veteran's claims for service connection for carpal tunnel syndrome and an increased rating for a right hand disability (residuals of trauma to the third finger of the right dominant hand, with tender scarring, to include residuals of a donor graft site, volar aspect of the right wrist). Those claims are addressed in a concurrent decision issued under separate cover. The issue of service connection for a disability manifested by breathing problems, to include as secondary to residuals of a fractured nose, 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. Throughout the relevant appeal period, the Veteran's service-connected residuals of a nasal fracture have most closely approximated chronic obstructive sleep apnea syndrome that requires use of a breathing assistance device such as continuous airway pressure (CPAP) machine. 2. The Veteran's chronic snoring is a component of his service-connected nasal fracture residuals and is not a distinct disability for VA rating purposes. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for residuals of a nasal fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Codes (DCs) 6502, 6510, 6511, 6512, 6513, 6514, 6847 (2012). 2. The criteria for service connection for a disorder manifested by snoring have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Prior to reaching the merits of this appeal, the Board must address VA's duties to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the VCAA notice requirements apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is established. Id. at 486. VCAA notice must generally be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, the AOJ sent the Veteran an April 2005 notice letter advising him of the evidence needed to substantiate his claims for an increased rating for nasal fracture residuals and for service connection for a snoring disorder. That letter also detailed the Veteran's responsibilities, and those of VA, for obtaining such evidence. A subsequent notice letter, dated in November 2006, described how VA assigns a disability rating and an effective date following the initial grant of service connection. Therefore, the April 2005 and November 2006 letters collectively satisfied both the threshold notice criteria and the heightened requirements set forth in Dingess. Moreover, while the November 2006 letter post-dated the initial unfavorable adjudication of the Veteran's claims, any prejudice arising from that late VCAA notice has been effectively cured by the subsequent readjudication of the claims in a June 2010 SOC and in March 2011 and February 2012 supplemental statements of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as a SOC or SSOC, is sufficient to cure a timing defect). Thus, the Board finds that VA has fulfilled its duty to notify with respect to those claims such that no further notice is necessary. 38 C.F.R. § 3.159(b). Nor is any further development required with respect to the duty to assist under 38 C.F.R. § 3.159(c). To the contrary, the AOJ has obtained the Veteran's complete service treatment records, as well as all post-service treatment records that are relevant to his nasal fracture residuals and snoring claims. The AOJ also has obtained the records pertaining to his disability award from the Social Security Administration (SSA). Significantly, the Veteran has not alleged, and his claims file has not otherwise shown, that any additional records remain outstanding with respect to his nasal fracture residuals and snoring claims. Accordingly, the Board finds that further efforts to obtain such records would only burden VA, rather than benefit the Veteran, and therefore should not be undertaken. See Sondel v. West, 13 Vet. App. 213, 221 (1999). Similarly, the Board finds that an additional VA examination should not be undertaken with respect to either the Veteran's nasal fracture residuals or his snoring. He was previously afforded examinations, in May 2005 and December 2010, which collectively addressed the underlying symptoms and severity of his nasal fracture residuals, as well as nature and etiology of his snoring. The Veteran has not argued that his service-connected disability has significantly worsened since it was last examined. Nor has he alleged that his prior examinations are insufficient to adjudicate his snoring claim. Moreover, there is no other evidence of record that suggests that those examinations are inadequate for rating purposes. As such, while mindful of the passage of time, the Board finds that another VA examination is not necessary with respect to the matters decided herein. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995). Nor is a Board hearing necessary as the Veteran has indicated that he does not wish to testify before a Veterans Law Judge. Accordingly, the Board finds that the duties to notify and assist have been fully met with respect to the Veteran's nasal fracture residuals and snoring claims. Therefore, appellate review of those issues may now proceed without prejudice to the Veteran. Finally, as the Board is remanding the Veteran's remaining service-connection claim, no further discussion of the duties to notify and assist with respect to that issue is necessary at this time. II. Increased Rating The Veteran contends that his service-connected nasal fracture residuals are more severe than contemplated by his currently assigned disability rating. However, for the reasons that follow, the Board finds that he has been adequately compensated by the 50 percent rating that has been in effect throughout the pendency of this appeal. The Veteran's evaluation has been determined through the application of VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities for which service connection has been established. In essence, each service-connected disability is rated by comparing its symptoms with the criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). 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 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When rating a service-connected disability, the entire history must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In considering the appropriate rating to assign in a particular case, when the effects of a service-connected disability have not been clinically disassociated from those of a non-service-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)). Additionally, the anti-pyramiding provision of 38 C.F.R. § 4.14 directs that the evaluation of the 'same disability' or, more appropriately in this case, the 'same manifestation' under various diagnoses is to be avoided. Indeed, in Esteban v. Brown, 6 Vet. App. 259 (1994), the United States Court of Appeals for Veterans Claims (Veterans Court) held that, for purposes of determining whether an appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. By way of history, the Board observes that while the Veteran has been service connected for residuals of a fractured nose since April 24, 1974, his 50 percent rating took effect on August 22, 2000. Thereafter, the Veteran submitted a May 28, 2004, petition for additional compensation. As such, the rating period on appeal extends from May 28, 2003, one year prior to the date of receipt of the Veteran's increased-rating claim. See 38 C.F.R. § 3.400(o)(2). However, 38 C.F.R. § 4.1 provides that, in evaluating a disability, such disability is to be viewed in relation to its whole recorded history. Therefore, the Board will consider pertinent evidence dated prior to May 28, 2003, but only to the extent that it is found to shed additional light on the Veteran's disability in relation to the rating period on appeal. The record reflects that the Veteran has an extensive history of private medical treatment for his nasal fracture residuals. His relevant clinical history was summarized, early in the rating period, by a March 2004 written statement from his long-time treating otolaryngological (ENT) provider, indicating: [The Veteran] has a history of having a severe nasal fracture in the military with long standing breathing problems and post nasal drainage. In March 1991, I did take him to the operating room and corrected his nasal septum and reduced his turbinates. He has mentioned that he has had years of post nasal drainage and laryngeal irritation which really did not resolve to any great degree. A pattern of coughing and laryngeal irritation with regard to post nasal drainage and smoke irritation has caused chronic laryngeal changes which have been refractory to biopsy and multiple attempts at medical management. [The Veteran], of course, has sleep apnea and his nasal condition is well known to contribute to this disorder as well. Although not all of [the Veteran's] problems are due to the nasal injury and his nasal condition, I do feel that a significant portion of his problems did stem from that root cause. The private ENT provider's observations were echoed by a VA clinician who examined the Veteran in May 2005. At that time, he complained of snoring, chronic post-nasal drip, and "uncontrollable" coughing, as well as chronic fatigue consistent with sleep apnea, which required the use of a continuous positive airway pressure (CPAP) device. In addition, the Veteran reported that he was currently unemployed and receiving Social Security disability compensation due, in part, to the coughing and breathing difficulties associated with his laryngeal irritation. The May 2005 clinician considered the Veteran's above statements in the context of his SSA records, which confirmed that he had been granted Social Security disability benefits, effective September 2001, based upon his respiratory disorders and his nonservice-connected type II diabetes mellitus. The May 2005 VA examiner also reviewed other pertinent medical documentation, as well as the results of concurrent clinical testing. Based upon that evidence, the VA examiner opined that the Veteran's "breathing conditions, snoring, chronic cough, and sleep apnea [we]re more likely than not related to [his] fractured nose service injury." The record thereafter shows that, in December 2010, the same VA clinician reexamined the Veteran and essentially reached the same conclusions regarding the underlying symptoms of his nasal fracture residuals. Specifically, the examiner determined that this service-connected disability was productive of sleep apnea, accompanied by heavy snoring, as well as nasal congestion that impaired the Veteran's breathing and necessitated a return to CPAP therapy. In this regard, the examiner noted that the Veteran's CPAP use had been suspended temporarily due to an equipment failure. In addition to documenting the above respiratory symptoms, the December 2010 examiner observed that the Veteran had a clinical history of asthma, requiring the use of an inhaler, and that his recent chest X-rays and pulmonary function test results were indicative of chronic obstructive pulmonary disease (COPD). However, the examiner concluded that those additional pulmonary conditions were neither residual symptoms of the Veteran's nasal fracture nor otherwise attributable to that service-connected disability. Instead, the examiner opined that the Veteran's asthma and COPD were "separate conditions most likely caused by smoke inhalation" during his post-service employment as a bar owner. The subsequent evidence of record reflects that the Veteran has resumed his use of the CPAP machine and has undergone additional outpatient treatment for sleep apnea and asthma. He also has been treated for sinusitis, which, in contrast with his asthma and COPD, has not been dissociated from his nasal fracture residuals. Having thus summarized the relevant facts at issue, the Board will now consider the applicable rating criteria. Throughout the pendency of this appeal, the Veteran's nasal fracture residuals have been rated under DC 6502-6847. Such hyphenation is proper when a rating under one diagnostic code requires the use of an additional code to identify the basis for the assigned evaluation. See 38 C.F.R. § 4.27 (2012). In this case, the Veteran's service-connected disability has been found to most closely approximate deviation of the nasal septum (DC 6502) and obstructive sleep apnea syndrome (DC 6842). 38 C.F.R. § 4.97, DC 6502-6842. Although the General Rating Formula for Sinusitis (DC's 6510 through 6514) has not been previously considered, the Board finds that it is also applicable, given the presence of sinusitis. As indicated, the symptoms of pain and nasal drainage underlying that diagnosis have not been dissociated from the Veteran's service-connected disability and, thus, must be considered in support of his increased-rating claim. See Mittleider, 11 Vet. App. at 182. Indeed, such consideration is especially appropriate given the March 2004 findings of the private ENT clinician regarding the Veteran's post-nasal drainage, which has long persisted as a residual of his in-service nasal fracture. Conversely, the Veteran's asthma and COPD are not residuals of his in-service nasal fracture. On the contrary, those respiratory disorders have been clinically distinguished from the service-connected disability at issue. Id. It follows that the diagnostic codes used to rate those particular disorders are not for application in this instance. 38 C.F.R. § 4.97, DCs 6602, 6604. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case," and, in this case, the facts do not show that there is any other provision of the VA Rating Schedule that is applicable to the Veteran's service-connected nasal fracture residuals. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Having thus narrowed the field of applicable diagnostic codes, the Board observes that only DC 6842 provides for an evaluation in excess of that which has already been granted. Indeed, the maximum ratings available for residuals of a deviated nasal septum and for sinusitis are 10 percent and 50 percent, respectively. 38 C.F.R. § 4.92, DCs 6502, 6510-6514. As discussed, the Veteran is currently in receipt of a 50 percent rating for obstructive sleep apnea, with accompanying snoring, which requires him to use a breathing assistance device, specifically a CPAP machine. 38 C.F.R. § 4.92, DC 6847. His 50 percent evaluation covers the entire period on appeal. As such, neither DC 6502 nor the General Rating Formula for Sinusitis may support a higher rating in this case. Nor may either of those provisions serve as the basis for a separate compensable rating. On the contrary, both sets of diagnostic codes essentially contemplate the same symptoms of respiratory impairment used to rate the Veteran's obstructive sleep apnea. 38 C.F.R. § 4.92, DC 6842. Therefore, to assign separate evaluations under either DC 6502 or the General Rating Formula for Sinusitis would violate the rule against pyramiding. 38 C.F.R. §§ 4.14, 4.25; Esteban, 6 Vet. App. at 261-62. Accordingly, the Board now turns to DC 6847, which, in contrast with the other applicable diagnostic codes, does permit the assignment of a schedular rating above 50 percent. 38 C.F.R. § 4.92, DC 6847. Specifically, DC 6847 provides for a total (100 percent) schedular evaluation for sleep apnea that causes chronic respiratory failure, accompanied by carbon dioxide retention or cor pulmonale (failure of the right side of heart). Id. Alternatively, that code directs that a 100 percent rating is also assignable for sleep apnea necessitating a tracheostomy. Id. Parenthetically, the Board notes that this is a surgical procedure used to treat severe respiratory failure by creating an opening through the neck into the trachea (windpipe). See Dorland's Illustrated Medical Dictionary 579 (32d ed. 2011). Here, notwithstanding the Veteran's complaints of chronic breathing problems, his service-connected nasal fracture residuals have not been shown to rise to the level of respiratory failure that causes him to retain carbon dioxide or results in heart failure. Nor is there any evidence that suggests that the Veteran has ever undergone, or even contemplated, a tracheostomy. To the contrary, his relevant surgical history has been limited to the deviated nasal septum repair and the turbinate reduction performed by his private ENT provider in March 1991, prior to the current appeals period. In the absence of further evidence of severe respiratory failure, or other residuals of nasal fracture sufficient to warrant a higher rating under any applicable diagnostic code, the Board finds that additional schedular compensation is not warranted in this instance. The Board's analysis does not end here as it must also consider whether to refer the Veteran's claim for extraschedular consideration. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the applicable regulation, an extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disabling symptomatology and is therefore found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. In applying the Thun criteria to the facts of the instant case, the Board recognizes that the Veteran has attested to occupational impairment arising from his service-connected nasal fracture residuals. The Board also acknowledges that the Veteran is currently unemployed and in receipt of Social Security disability benefits. As noted previously, however, his award from the SSA is based, in part, on his diabetes mellitus, for which service connection has not been established and which is not at issue in this appeal. Moreover, while mindful that the Veteran's Social Security benefits are also predicated on his respiratory disorders, the Board considers it significant that not all of those disorders have been associated with his nasal fracture residuals. On the contrary, the Veteran's asthma and COPD have been clinically distinguished from that service-connected disability and have been instead attributed to his history of post-service occupational smoke inhalation. Further, the Board observes that, to the extent that the Veteran's nasal fracture residuals are productive of functional loss, such impairment is effectively encompassed in his previously assigned schedular rating, which contemplates breathing problems severe enough to require a mechanical device. Accordingly, the Board finds that the overall record does not show that the Veteran's service-connected respiratory disability, standing alone, undermines his occupational and social functioning to an extent that exceeds the parameters of the Rating Schedule. In addition, the Board observes that neither the Veteran nor his representative has expressly raised the matter of entitlement to an extraschedular evaluation. To the contrary, the parties' contentions have been limited to those discussed above, i.e., that his nasal fracture residuals are more severe than reflected by his current schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (noting that while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). Moreover, the Veteran and his representative have not identified any factors that may be considered exceptional or unusual with respect to that service-connected disability and the Board has been similarly unsuccessful. Further, the record does not show that the Veteran has required frequent or, indeed, any hospitalizations for that disability during the relevant appeals period. In addition, there has been no unusual clinical picture presented, nor any other factor which has taken that disability outside the usual rating criteria. Accordingly, the Board finds that the evidence does not support the proposition that the Veteran's nasal fracture residuals present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). In reaching the above determinations, the Board remains sympathetic to the Veteran and does not question the sincerity of his belief that his nasal fracture residuals are more severe than currently evaluated. In addition, the Board recognizes that the Veteran is competent to report tangible symptoms associated with that service-connected disability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is likewise competent to offer opinions on medical issues that fall within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran has not been demonstrated the expertise to opine as to the nature and severity of his nasal fracture residuals within the context of the applicable rating criteria. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer). To the contrary, such matters require specialized clinical knowledge to resolve. Thus, to the extent that the Veteran alleges that additional VA compensation is warranted for his service-connected disability, his contentions are outweighed by the probative assessments of the private and VA clinicians, upon which the Board has relied in determining the most appropriate rating assignment in this case. In sum, the weight of the competent and credible evidence shows that the Veteran's nasal fracture residuals have been adequately compensated by his previously assigned schedular evaluation. The Board has considered the assignment of staged ratings, but ultimately has concluded that the 50 percent schedular evaluation has most nearly approximated his service-connected disability throughout the pendency of this appeal. See Hart, 21 Vet. App. at 509-10. Accordingly, while mindful of the benefit-of-the-doubt rule, the Board finds that rule is not for application and that the claim for an increased rating for nasal fracture residuals must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Service Connection In addition to seeking increased compensation for his nasal fracture residuals, the Veteran contends that this service-connected disability caused him to develop a snoring disorder for which a separate award of VA benefits is warranted. However, as detailed below, the Board finds that the Veteran's snoring is encompassed within his current award for nasal fracture residuals and is not entitled to service connection on a stand-alone basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, secondary service connection may be established for a current disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. Significantly, for purposes of this appeal, the threshold requirement for establishing service connection, on either a direct or secondary basis, is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term "disability," for VA rating purposes, essentially means an impairment in earning capacity resulting from a diagnosed disease or injury, or the residuals thereof. See 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439, 448 (1995). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In this case, the Veteran has reported a history of habitual and heavy snoring, which accompanies his obstructive sleep apnea. As discussed at length in the preceding section, the symptoms of that service-connected disability have served as the primary basis for his 50 evaluation, which has been in effect throughout the entirety of this appeal. See 38 C.F.R. § 4.97, DC 4847. The above evaluation has been predicated, in pertinent part, on the findings of a VA clinician who examined the Veteran in May 2005 and December 2010. In the report of the first examination, the VA clinician documented the Veteran's complaints of chronic snoring and essentially attributed that symptom to his obstructive sleep apnea, further finding that this diagnosis was itself a residual of his in-service nasal fracture. Then, in the report of the follow-up examination, that clinician elaborated on the etiology of the Veteran's snoring, noting: The [V]eteran has four reasons for the snoring: obstructive sleep apnea, obesity, and a thick neck, both of which contribute to the sleep apnea, and nasal congestion. If the [V]eteran had his CPAP adjusted correctly, which he plans on doing, he would not snore. He does not have a diagnosis of another type of sleep apnea, but rather obstructive. That obstruction certainly can partially be caused by his nasal surgeries/condition that causes congestion, that is why [the V]eteran is service-connected for the obstructive sleep apnea in the first place, even though he has contributing factors of obesity and a large neck. Therefore, snoring is just as likely as not a result of [the V]eteran's sleep apnea and is not a separate distinct disability. The VA examiner's observations make clear that the Veteran's snoring, while multifactorial in etiology, is essentially a component of the obstructive sleep apnea for which he is presently service-connected, rather than a distinct disability for rating purposes. Moreover, by opining that, "if the [V]eteran had his CPAP adjusted correctly . . . he would not snore," the VA examiner has further underscored the fact that the snoring is an underlying symptom of an already service-connected disability, which does not merit a separate award of compensation. In addition, the Board considers it significant that the above examiner has highlighted not only sleep apnea but also obesity as a reason for the Veteran's snoring. As with the snoring itself, obesity does not qualify as a disability for VA rating purposes. In fact, the Board held as much in its June 2010 decision denying service connection for that claimed condition. Similarly, the Veteran's documented "thick neck," to which his snoring has been likewise been attributed, is also not a disability for rating purposes. To the contrary, that condition, standing alone, has been neither alleged nor shown to result in any impairment in earning capacity contemplated by the Rating Schedule. See 38 C.F.R. § 4.1; Hunt, 1 Vet. App. at 296; Allen, 7 Vet. App. at 448. Finally, the "nasal congestion," which has been cited as another underlying cause of the Veteran's snoring, has been included, along with his obstructive sleep apnea, in his award for nasal fracture residuals. Indeed, that is evident from the diagnostic criteria used to rate that service-connected disability. Such criteria, as discussed previously, include not only the code for sleep apnea but also DC 6502, which contemplates nasal obstruction consistent with a deviated septum, and DCs 6510-6514, which encompass nasal drainage and other symptoms listed in the General Formula for Rating Sinusitis. Accordingly, the Board finds that the Veteran's snoring is a component of his service-connected nasal fracture residuals, and is not a distinct disability warranting a separate award of service connection. The Board recognizes that the Veteran disagrees with its decision, and does not question the sincerity of his belief that his snoring should be separately compensated. However, just as he is unqualified to address the overall severity of his nasal fracture residuals within the context of the applicable rating criteria, he also lacks the expertise to opine on the etiology of his snoring and to distinguish it from the respiratory disability for which he is already service-connected. See Jandreau, 492 F.3d at 1377 n.4. Thus, for guidance on these complex medical matters, the Board has relied on the expertise of the VA clinician who has twice examined the Veteran during the pendency of this appeal. In summary, the Board finds that the preponderance of the evidence weighs against a separate award of service connection for the Veteran's snoring and, thus, his claim for such compensation must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert, 1 Vet. App. at 54. ORDER Entitlement to an increased rating for residuals of a nose fracture is denied. Entitlement to service connection for a disability manifested by snoring is denied. REMAND Although the Board regrets the additional delay in this long-pending appeal, further development is needed prior to the disposition of the Veteran's breathing disorder claim. 38 C.F.R. § 19.9 (2012). The nature of this issue is similar to the Veteran's snoring claim insofar as he contends that a disorder, manifested by breathing problems, is entitled to service connection as secondary to his nasal fracture residuals. However, unlike the snoring, which has been clinically shown to be a component of that service-connected disorder and not a distinct disability for rating purposes, the Veteran's breathing problems have been attributed not only to his service-connected nasal fracture residuals but also to other disabilities -- COPD and asthma -- for which VA benefits have not been established. Moreover, each of those disabilities is expressly contemplated by the Rating Schedule and, thus, may serve as an independent basis for VA compensation, provided that the requirements for service connection are met. See 38 C.F.R. § 4.97, DCs 6602, 6604. To aid in this determination, the Board previously requested a medical opinion, which was rendered by the same clinician who conducted the May 2005 and December 2010 VA examinations. Specifically, that clinician opined: The Veteran does not have a distinct breathing problem except for asthma and COPD . . . Asthma and COPD are not manifestations of [the Veteran's service-connected] nasal fracture; they are not caused by [his] service-connected disabilities. They are separate conditions most likely caused by [the Veteran's post-service] smoke inhalation. See December 2010 VA Examination Report. The above findings indicate that, while the Veteran's asthma and COPD constitute distinct disabilities, neither was caused by his nasal fracture residuals or any other aspect of his active military service. However, in addition to eliciting an opinion on causation, the June 2010 remand expressly requested that VA examiner consider whether any respiratory disability, found to be distinct from the Veteran's nasal fracture residuals, had been aggravated by that service-connected disorder. See June 2010 Board Remand, item 3(c) (directing the VA examiner to opine as to whether any disability manifested as breathing problems was at least as likely as not either caused or aggravated by the Veteran's service-connected residuals of a nasal fracture) (emphasis added). Notwithstanding the Board's remand directive, an opinion addressing the theory of aggravation has yet to be obtained. Where the remand orders of the Board, or the Courts, are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, as there has not yet been substantial compliance with the Board's request for an opinion on whether the Veteran's service-connected nasal fractures aggravated his COPD or asthma, and as the resolution of this question is critical to deciding the Veteran's breathing disorder claim, a clarifying opinion is needed. See id.; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed decision). In requesting this addendum opinion, the Board is cognizant of the revised VA regulation governing secondary service connection, which appears to place a heightened burden on claimants seeking benefits on the basis of aggravation. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). Specifically, the amendment requires such claimants to furnish evidence establishing a baseline level of disability for the nonservice-connected condition prior to the aggravation. However, because this additional requirement renders the revised regulation more restrictive than its predecessor, and because the Veteran submitted his breathing disorder claim before that revision took effect, the Board finds that it is not applicable in this instance. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). Therefore, on remand, the examining VA clinician need not address the Veteran's baseline level of nonservice-connected disability prior to its aggravation, if any, by his service-connected disability, but rather need only opine as to whether some degree of aggravation occurred. Accordingly, the case is REMANDED for the following actions: 1. Request a records review and medical opinion from the examiner who completed the December 2010 VA Nose, Sinus, Larynx, and Pharynx examination (or another examiner if the December 2010 examiner is unavailable). The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA and/or VBMS eFolder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. If the reviewing clinician determines that a physical examination is necessary, then one must be scheduled. The reviewing clinician should specifically respond to the following questions: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's chronic obstructive pulmonary disease (COPD) was aggravated (worsened) beyond the normal course of the condition by his service-connected nasal fracture residuals? (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's asthma was aggravated beyond the normal course of the condition by his service-connected nasal fracture residuals? A report of the clarifying opinion should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the reviewing clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue remaining on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs