Citation Nr: 1334196 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-36 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected glaucoma. 2. Entitlement to a rating in excess of 10 percent for service-connected heel spurs of the right foot (right heel condition) through June 27, 2012, to include a compensable rating prior to October 2011. 3. Entitlement to a rating in excess of 10 percent for service-connected spurs of the left foot (left foot condition) through June 27, 2012, to include a compensable rating prior to October 27, 2011. 4. Entitlement to a rating of bilateral pes planus with heel spurs, hallux valgus, and hammer toes in excess of 30 percent after June 27, 2012 (bilateral foot condition). 5. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active service from September 1973 to September 1975, and from June 1976 to August 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. The hearing transcript is associated with the claims folder. These matters were previously before the Board in April 2011 and were remanded for further development. In regards to the issues of bilateral foot condition and glaucoma the Board finds all requested development was completed and these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In a subsequent rating decision in December 2012 the RO granted a 10 percent rating for each foot from October 2011. Effective June 27, 2012 the RO reclassified the Veteran's issue as bilateral pes planus with heel spurs, hallux valgus, and hammer toes and granted a 30 percent rating. In regards to the Veteran's claim for sleep apnea the Board finds the remand directives were not substantially completed as the Veteran was provided with an inadequate VA examination, which will be discussed in detail below. Accordingly the Board finds remand is required. See Stegall, 11 Vet. App. The Veteran's claim for individual unemployability was granted in December 2012 rating decision. As this constitutes a full grant of all benefits sought on appeal the issue of entitlement to total disability based on individual unemployability is no longer before the Board. Finally, the Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The Veteran's Virtual VA file includes additional VA treatment records which have not yet been considered by the RO. Specifically, the Virtual VA file includes records through April 2013, while the last supplemental statement of the case from December 2012 only addressed VA treatment records through October 15, 2008. However, the Board finds the VA treatment records after October 2008 focus primarily on treatment for the Veteran's unrelated skin condition and are therefore not relevant to the issues on appeal. Accordingly, the Board finds the Veteran will not be prejudiced by the Board's adjudication of the issues on appeal at this time. The issue of entitlement to service connection for sleep apnea 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. The Veteran did not have compensable visual impairment at any point during the period on appeal. 2. The Veteran did not have moderately severe injuries to either foot at any point during the period on appeal. 3. The Veteran had acquired flatfloot with severe, objective evidence of marked deformity and pain on manipulation throughout the period on appeal. 4. The Veteran did not have pronounced bilateral flatfoot with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon achillis on manipulation at any point during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected glaucoma have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.76(b), 4.79, Diagnostic Code (DC) 6013 (2013). 2. The criteria for a rating in excess of 10 percent for service-connected heel spurs of the right foot through June 27, 2012, to include a compensable rating prior to October 2011, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.79, 4.72 Diagnostic Code (DC) 5284 (2013). 3. The criteria for a rating in excess of 10 percent for service-connected heel spurs of the left foot through June 27, 2012, to include a compensable rating prior to October 2011, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.79, 4.72 Diagnostic Code (DC) 5284 (2013). 4. The criteria for a rating not to exceed 30 percent for bilateral pes planus with heel spurs, hallux valgus, and hammer toes effective June 15, 2005 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a Diagnostic Code (DC) 5276 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating The Veteran is currently seeking increased ratings for his service connection glaucoma and bilateral foot conditions. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Glaucoma The Veteran is seeking an increased rating for his service-connected glaucoma condition. He currently has a 10 percent rating for this condition under Diagnostic Code 6013 for open-angle glaucoma. 38 C.F.R. § 4.79. This regulation provides that a minimum 10 rating is warranted if continuous medication is required. Otherwise the condition shall be evaluated based on visual impairment due to open-angle glaucoma. VA regulations provide that visual acuity shall be evaluated on the basis of corrected distance vision unless the lens required to correct the distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye. 38 C.F.R. § 4.76(b). As an initial matter the Board notes private treatment records throughout the period on appeal reflect the Veteran had glaucoma and required medication to treat his condition. Accordingly, the Board finds the current 10 percent rating was warranted throughout the period on appeal. The Board will now discussed whether a higher rating was warranted at any point. In a December 2006 written statement the Veteran asserted his eye sight had gotten worse over the past two years and he experienced eye ache, morning headaches, and blurred vision. He also reported difficulty seeing at night. In February 2007 the Veteran was provided with a VA examination. The examiner noted the Veteran used medicated drops to treat glaucoma in both eyes. The Veteran's right eye near visual acuity was 20/80 uncorrected and 20/40 corrected and far visual acuity was 20/50 uncorrected and 20/30 corrected. The Veteran's near left eye visual acuity was 20/80 uncorrected and 20/40 corrected and far visual acuity was 20/50 uncorrected and 20/30 corrected. The examiner noted the Veteran was also hyperopic, or farsighted, with astigmatism and has presbypoia, or aging eyes. Ocular pressure was 18 mmHG in the right eye and 16 mmHG in the left, which the examiner noted was within normal limits. The examiner opined the Veteran had primary open angle-glaucoma which was controlled with his medication. This report reflects the Veteran's corrected distance vision was 20/40 in the right eye and 20/30 in the left eye, which yields a noncompensable rating under VA ratings for central vision impairment. 38 C.F.R. § 4.79. Therefore the Board finds a rating in excess of 10 percent was not warranted at this time. In his November 2007 substantive appeal the Veteran reported he experienced temporary relief after using eye drops, however he reported he would again experience blurred vision later in the day. In January 2008 the Veteran's private eye doctor submitted a letter to the VA. The physician stated the Veteran's glaucoma was "controlled." In March 2008 the Veteran sought private treatment for his glaucoma condition. The Veteran reported some trouble focusing at a distance, which was helped "some, but not much" by glasses. The Veteran also reported taking medication for his condition. In July 2008 again returned to his private physician. The record reflects the Veteran had normal cornea bilaterally with no change in glaucoma risk. His eyesight was 20/30 in one eye and 20/25 in the other, resulting in noncompensable rating under 38 C.F.R. § 4.79. The Veteran's eyesight was again measured in September 2010 and was 20/40 and 20/25, again resulting in a noncompensable rating. Accordingly the Board finds the evidence does not establish the Veteran's eye condition warranted a rating in excess of 10 percent during this time. In his January 2011 hearing before the undersigned VLJ the Veteran stated he experienced dry eyes and blurry vision due to his glaucoma condition. In July 2011 the Veteran reported experiencing dry eyes and vision change but no irritation of his eyes. In August 2011 he submitted a written statement describing his glaucoma condition. The Veteran reported his eyes were red and itched "all the time" and that he got infections in his eyes. He also reported his vision was blurred "most of the time." The Veteran described that while driving at night, even with his glasses, the bright car headlights hurt his eyes. He also stated the pressure in his eyes went up and down, averaging 19 in the right eye and 21 in the left eye. The Veteran stated he used medicated drops in his eyes twice a day. In October 2011 the Veteran was provided with an additional VA examination. The examiner dilated the Veteran's pupils then examined his eyes. The examiner found no findings of eye disease or injury. Intraocular pressure was within normal limits on both eyes. The examiner opined "There is no evidence of open angle glaucoma." Far visual acuity of the right eye was 20/50 uncorrected, 20/25 corrected; near vision in the right eye was 20/100 uncorrected and 20/30 corrected. Distance visual acuity in the left eye was 20/30 uncorrected and 20/20 corrected; near vision was 20/100 uncorrected and 20/30 corrected. The examiner opined the vision was normal and the Confrontation Visual Field Test was normal. The examiner also specifically noted the lens required to correct the distance vision in the Veteran's poorer eye did not differ by more than 3 diopters from the lens required to correct distance vision in the better eye. Based on the foregoing the examiner opined the Veteran's glaucoma was active with no change. The examiner also required his condition required the use of glaucoma medication. The examiner opined the Veteran's eye condition did not affect his ability to work or his daily activities. The Board finds evaluation of the Veteran's visual acuity by corrected distance vision continued to be appropriate and results in a noncompensable rating. 38 C.F.R. §§ 4.76, 4.79. Therefore, the Board finds the Veteran's glaucoma condition did not warrant a higher rating based on visual impairment at any point during the period on appeal. Instead the Board finds the Veteran's eye condition most appropriately warranted a 10 percent rating throughout the period on appeal for open-angle glaucoma requiring continuous medication. Accordingly the Veteran's claim for an increased rating is denied. Bilateral Foot Condition The Veteran is also seeking increased ratings for his bilateral foot condition. He was initially assigned a noncompensable rating for this condition under code 5284 in each foot. 38 C.F.R. § 4.72. During the course of the appeal he was granted 10 percent rating for each foot under this code effective October 27, 2011. This code provides that moderate foot injuries warrant a 10 percent rating, moderately severe injuries warrant a higher 20 percent rating, and a maximum 30 percent rating is warranted for severe foot injuries. The Board notes the terms "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Additionally, the Veteran was awarded temporary total disability for his right foot from March 21, 2008 to May 31, 2008 following surgery to remove spurs in his right foot. 38 C.F.R. § 4.30. Finally in a December 2012 rating decision the RO recharacterized the Veteran's issue as bilateral pes planus with heel spurs, hallux valgus and hammer toes and assigned a 30 percent rating under Diagnostic Code 5276 effective June 27, 2012. This diagnostic code provides a 30 percent rating is warranted for acquired flatfoot with severe; objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities bilaterally. A higher, maximum 50 percent rating is warranted of the bilateral flatfoot is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. For reasons that will be discussed below, the Board finds the 30 percent rating for recharacterized condition of combined bilateral pes planus with heel spurs, hallux valgus and hammer toes (foot condition) should be granted effective June 15, 2005, the date the claim was received. All evidence of record since the claim was received has been reviewed and considered and relevant evidence is summarized below. In April 2005 the Veteran sought treatment for painful arches in his feet. The podiatrist diagnosed the Veteran with bilateral pes planus and casted the Veteran's feet for custom orthotic shoes. X-ray revealed calcaneal spur on left foot. According, this medical record suggests the Veteran was diagnosed with pes planus and heel spurs even before the period on appeal. Treatment records during the period on appeal continued to reflect the Veteran had bilateral bone spurs in his heels and bilateral flat feet. For example an x-ray from July 2005 revealed calcaneal spurs bilaterally. Additionally in May 2006 the Veteran's list of active problems included flatfoot and hallux valgus. In September 2006 Veteran reported pain in both feet, worse in his right. The podiatrist opined the Veteran had plantar fasciitis and sinus tarsi syndrome on the right. He was fitted for ankle brace on right side. The Veteran returned in two months and reported continued bilateral foot pain. In January 2007 the Veteran was seen by a VA podiatrist. The Veteran reported pain in both feet which had "moved more into the joints." The physician noted pain on palpation and mild bunion deformities. The veteran advised to continue with orthotics and resize his shoes. In March 2007 the Veteran was provided with a VA examination. The Veteran reported bilateral heel pain. He reported he was given injections in his heels but did not receive any relief. He also reported history of spur removal on the right foot. The Veteran estimated his left heel pain was 5/10 severity and right was 6/10. He described the pain in both heels as continuous, including at rest. He reported his symptoms were worse first thing in the morning, and included flares of pain that would increase to 7/10 which occurred intermittently throughout the day, precipitated by standing and walking. The Veteran stated he wore over the counter insoles in his shoes which decreased his symptoms. Upon examination the examiner noted tenderness to the bilateral anterior medial heels. The examiner opined the Veteran had no pes planus but did have small plantar calcaneal spurs, mild hallux valgus deformities, and hammertoes. The Board finds the medical records through the spring of 2007 alternatively reflect the Veteran had bilateral flat feet, heel spurs, hallux valgus, and hammertoes. Therefore, the Board finds the Veteran had all symptoms of his current foot condition when he initially filed his claim. Accordingly the Board finds the current combined 30 percent rating for a foot condition was warranted since the Veteran initially filed his claim. However marked pronation or extreme tenderness of plantar surfaces of the feet was not noted, so a higher 50 percent rating was not warranted at this time. At an August 2007 rheumatology consult the physician noted no acute fracture or dislocation in Veteran's feet, but mild degenerative disc disease with marginal spurring was present bilaterally. In his November 2007 written substantive appeal the Veteran reported the pain in both his feet due to his heel spurs prevented him from "sustained standing" in the mornings and late evenings. The Veteran reported this condition subsided "somewhat" with increased blood flow and warmth due to activity during the day. Private treatment records reflect the Veteran had surgery on his right foot in March 2008 to remove heel spurs. A February 2008 letter from his private physician stated the Veteran would not be able to return to work for four to six weeks post surgery. Accordingly the Board finds the temporary 100 percent rating for the Veteran's right heel from March 21, 2008 to May 31, 2008 was warranted. In September 2010 the Veteran reported experiencing pain in his right foot. The Veteran described the pain as intermittent and dull with pain ranging from 4 to 6 out of 10 severity. In his January 2011 hearing before the undersigned VLJ the Veteran reported he experienced ongoing pain from his bilateral heel spurs. The Veteran described treating his condition with the use of custom orthotics, injections, and pills. The Veteran stated with his medication he could only stand on his feet for up to six hours. In October 2011 the Veteran was provided with a VA examination. The Veteran reported he was diagnosed with a bilateral foot condition which had existed for over 24 years. He reported constantly experiencing pain throughout his feet which he described as aching and sharp. The Veteran described additional symptoms of painful side foot, hammer toes on both feet which hurt, residuals of bunions, pain, and weakness. The examiner noted the Veteran had bone spurs in 1990 and 2008. The Veteran reported pain in his feet required him to use a cane "sometimes." The examiner noted the Veteran had abnormal weight bearing with unusual shoe wear pattern. Examination revealed moderate tenderness with palpation on feet bilaterally. The left foot had deformity of inward rotation and hammer toes, but no mal-alignment. Hallux valgus was present bilaterally. X-rays were conducted and were abnormal. The right foot showed degenerative changes, mild to moderate metattarus varus, mild hallux valgus, and small calceneal spur. The left foot showed minimal metatarsus varus, minimum degenerative changes, and small calceneal spur. The examiner diagnosed the Veteran had degenerative arthritis and mild calcaneal spur bilaterally. He had mild hallux valgus of the right foot and deformity of the distal talus on the left foot. The examiner opined his condition limited the Veteran to standing or walking for no more than three to four hours. X-rays revealed mild spurring bilaterally. The Board finds although the report of the examination reflected the Veteran had hallux valgus, bone spurring, and degenerative changes to both feet, the record does not establish the Veteran had pronounced flatfoot, marked pronation, or extreme tenderness. Therefore a higher 50 percent rating was not warranted. In June 2012 the Veteran was provided with an additional VA examination. The examiner noted the Veteran had bilateral pes planus with pain on both feet accentuated by use and manipulation. The examiner also noted decreased longitudinal arch height on weight-bearing. However the examiner indicated the Veteran did not have marked deformity or pronation of the foot. X-rays revealed degenerative arthritis in both feet but no malunion of tarsal or metatarsal bones. The examiner also noted the Veteran had calceneal spur in both feet which was diagnosed in 2005. However, the Veteran reported his symptoms began in 1990 and he was diagnosed with bilateral heel spurs at that time. The Veteran had surgeries to remove spurs from his right foot in 1990 and 2008. The examiner noted the Veteran constantly used a cane due to his foot conditions. The examiner opined the Veteran's bilateral foot condition was active with no change in diagnosis. The Veteran's posture and gate were within normal limits. The Board notes this report does not suggest a recent worsening of the Veteran's foot condition, but instead reflects his condition as approximately consistent throughout the period on appeal. Accordingly, if the Veteran's condition in June 2012 warranted a combined 30 percent rating then this rating is warranted for the entire period on appeal. Therefore the Board finds the 30 percent combined rating for bilateral pes planus with heel spurs, hallux valgus and hammer toes should be granted effective the date of filing, June 15, 2005. Additionally the Board notes the examiner specifically noted the Veteran did not have several of the symptoms of a higher rating, including marked pronation or deformity. Accordingly the Board finds this report does not establish a higher rating was warranted at this time. Therefore, the evidence does not establish a rating in excess of 30 percent was warranted at any point during the period on appeal. Additional considerations In each of these claims for increased ratings the Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's glaucoma or foot disabilities that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of blurred vision, irritated eyes, and painful feet. As discussed above these symptoms were each specifically contemplated in the schedular ratings that were assigned. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However the Board notes the Veteran currently already receives TDIU and therefore additional referral for this claim would be unnecessary. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2005, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The Board acknowledges this initial letter did not provide the notice required by the Dingess court. However, such notice was provided to the Veteran o numerous occasions throughout the length appeals period, including in May 2006. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although all required notice was not given provided prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. The Veteran was also provided with a hearing before the undersigned veterans law judge (VLJ) in January 2011. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Georgia Department of Veterans Services, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed conditions, specifically regarding their current severity. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to recent medical treatment. Identified relevant evidence was obtained and associated with the claims file prior to this adjudication. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with several VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations regarding the Veteran's glaucoma and bilateral feet conditions were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for increased rating for glaucoma is denied. A rating not to exceed 30 percent is granted for the Veteran's bilateral pes planus with heel spurs, hallux valgus, and hammer toes effective June 15, 2005, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran is also seeking service connection for sleep apnea. As discussed above, this matter was previously before the Board in April 2011 and was remanded for a VA examination to determine whether his obstructive sleep apnea was caused and/or aggravated by his service-connected disabilities, including sinusitis. Review of the record reflects the Veteran was provided with a VA examination to evaluate his sleep condition in June 2012. However the examiner stated he was not provided with a list of the Veteran's service connected conditions and therefore was unable to provide an opinion as to whether the Veteran's sleep apnea was due to one of his service connected disabilities. Therefore, the Board finds the RO/AMC did not comply with the remand instructions by failing to provide the examiner with a list of the Veteran's service connected disabilities. Because the examiner was not able to address the theory of service connection on a secondary basis the VA examination is inadequate. Accordingly remand is required. The Board notes the Veteran is already receiving total disability based on individual unemployability. Therefore if he no longer wishes to pursue this appeal he may withdraw his claim in writing (in consultation with his representative). 38 C.F.R. § 20.204. Accordingly, the case is REMANDED for the following action: 1. Return the file to the same VA examination who provided the June 2012 opinion, if available, or else to another appropriate medical professional. (Another physical examination of the Veteran is not required unless the examination determines it is necessary). The entire claims file should be made available for review, including a list of the Veteran's service-connected disabilities, and complete rationale should be provided for any opinion expressed. Consistent with the factual history the examiner should provide an opinion as to the following question: Is it as likely as not (50 percent or greater) the Veteran's current obstructive sleep apnea is caused or permanently worsened by his service-connected problems (including sinitus, rhinitis, seborrheic dermatitis, cardiomegaly, depression, psoriasis, bilateral pes planus, hemorrhoids, glaucoma, arthritis, tinnitus, hearing loss, back condition, and hematuria). 2. Then, readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs