Citation Nr: 1340524 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-29 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to a disability rating in excess of 20 percent for benign prostatic hyperplasia (BPH), prior to June 6, 2012. 4. Entitlement to a disability rating in excess of 40 percent for benign prostatic hyperplasia (BPH), from June 6, 2012. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty with the Marine Corps from June 1972 to June 1974 and with the Army from September 1985 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a December 2008 rating decision, the RO denied service connection for PTSD and entitlement to TDIU. In a November 2009 rating decision, the RO denied service connection for sleep apnea and continued a 20 percent disability rating for benign prostatic hyperplasia (BPH). In May 2012, the Veteran provided testimony at a RO hearing. A transcript of that hearing is associated with the record. In a November 2012 rating decision, the RO granted a 40 percent rating for BPH, from June 6, 2012. Despite the higher rating established for BPH, the Veteran has not been awarded the highest possible rating. As a result, he is presumed to be seeking the maximum possible benefit and his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). Case law mandates that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In the present case, the only psychiatric diagnoses that the Veteran has are for an adjustment disorder and depression. However, the Veteran is already service connected for adjustment disorder with depressed and anxious mood (December 2007 rating decision). As such, the Board characterizes the present claim as one only for service connection for PTSD, which is the specific psychiatric disorder that the Veteran has claimed. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for obstructive sleep apnea and entitlement to TDIU 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. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has a diagnosis of PTSD. 2. For the period prior to February 25, 2010, the Veteran's BPH was not manifested urine leakage requiring the wearing of absorbent materials which must be changed two or more times a day, a daytime voiding interval of less than one hour or awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. 3. For the period from February 25, 2010, the Veteran BPH was manifested by urine leakage requiring the wearing of absorbent materials which must be changed two or four times a day, but not more than four times a day. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Prior to February 25, 2010, the criteria for a disability rating in excess of 20 percent for BPH have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115b, Diagnostic Code 7527 (2013). 3. From February 25, 2010, the criteria for an evaluation of 40 percent, but no higher, for BPH, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115b, Diagnostic Code 7527 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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)(1). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, in regards to the claim for service connection for PTSD, a January 2008 letter, sent prior to the initial unfavorable decision advised the Veteran of the evidence and information necessary to substantiate his service connection claim. That letter also included notice specific to a PTSD claim, and included a request for information regarding the Veteran's claimed stressors. In regards to the increased rating claim, the RO also provided a September 2009 letter, prior to the initial unfavorable decision, to advise the Veteran of the evidence and information necessary to substantiate such a claim. Both letters also informed the Veteran of VA's respective responsibilities in obtaining such evidence and information, and notice of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). VA has a duty to assist the Veteran in developing his claims, which includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claims, and affording him an examination when appropriate. Relevant to the duty to assist, the Veteran's service treatment records, as well as, post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, neither the Veteran nor his representative has indicated that the Veteran has a current diagnosis of PTSD or a worsening of his BPH such that more recent VA medical records would be necessary to make a determination o f the Veteran's claim. Therefore, the Board finds that VA has met its duty to assist the Veteran in obtaining relevant records. Additionally, in regards to the PTSD claim, the duty to assist under 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c)(4) is triggered when it is necessary to obtain an examination to make a decision in the case. Factors to consider in determining whether an examination is necessary include whether there is evidence of a current disability, and whether there is evidence that the disability may be associated with the appellant's military service or another service-connected disability but there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board does not find that an examination is necessary to decide the claim for service connection for PTSD. The claims file contains no competent evidence of a current diagnosis of PTSD. Moreover, given the evidence and facts of record (which will be discussed in herein), arranging for the Veteran to undergo VA examination or obtaining a medical opinion specifically in connection with this claim is not required. In this regard, the Board notes that VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is sufficient medical evidence of record to decide the claim, although such evidence does not support the claim. In addition, the Veteran underwent multiple VA medical examinations relevant to his increased rating claims, including in October 2009 and June 2012, which included information pertinent to rating that disability. As indicated previously, the Veteran was afforded the opportunity to testify before a DRO in May 2012. The Board notes that the Veteran did not provide testimony regarding the claim for service connection for PTSD because the Veteran's request for the RO hearing had been made in reference to new claims for an increased rating and service connection for sleep apnea filed separately (which are addressed in the Remand portion of this decision). 38 C.F.R. 3.103(c)(2) requires that the DRO who chairs a hearing fulfill two duties to comply with (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO essentially elicited testimony necessary to determine the nature of the Veteran's claims. In addition, the DRO sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the DRO hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his increased rating claim. As such, the Board finds that, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. PTSD Service Connection Claim The Veteran contends that he currently has PTSD, which he associates with his active duty in Iraq. In his March 2008 statement, the Veteran reported that during his one year in Iraq there were "motors landing so close" to him that dirt came down near him or on his head cover. He also reported that there were times "while sleeping in my bunk early morning there were rockets flying so close over more that it seems as if I could touch the tail." Also, "[w]hile flying out of some part...a constant stream of tracer flying at the ship." The Board again notes that the Veteran is already service-connected for an adjustment disorder with depressed and anxious mood. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010) and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. In this case, however, the Veteran has not met the first essential criterion for service connection for PTSD-medical diagnosis of the disorder in accordance with the applicable diagnostic criteria. As such, further discussion of the recent revisions to 38 C.F.R. § 3.304 is unnecessary. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). Considering the pertinent evidence in light of the above, the Board finds that the weight of the competent, persuasive medical evidence indicates that the Veteran does not have, and has not at any point pertinent to this appeal had, PTSD. The Veteran's service treatment records are negative for any finding or diagnosis of PTSD. The November 2006 Army retirement examiner found that the Veteran was psychiatrically normal. In his report of medical history, the Veteran denied having nervous trouble, loss of memory, trouble sleeping, depression or excessive worry and prior evaluation or treatment of a mental condition. Following his February 2007 separation from service, the Veteran underwent a June 2007 VA mental disorders examination. The Veteran complained of temporal problems, irritation, feeling depressed about not finding a job, and anxiousness. He also reported that while in Iraq everything was a threat, and although he never got hurt or saw anyone get hurt or killed, he did see an improvised explosive device (IED) blow up a couple of times and big spots of black smoke. The June 2007 VA examiner noted that the Veteran's in-service stressors included the Veteran's fear of the unknown and the general hostile conditions in Iraq. Following evaluation, the examiner diagnosed the Veteran with adjustment disorder with depressed and anxious mood, specifically noting that the Veteran met the DSM-IV diagnostic criteria for that disability. As noted above, service connection has been established for these disorders. In November 2008, the Veteran underwent another VA mental disorders examination, for his service-connected adjustment disorder. The examiner noted the Veteran's reported PTSD symptoms. However, following evaluation, the VA examiner diagnosed the Veteran with adjustment disorder with depression and anxiety and specifically noted that the Veteran's diagnosis conformed to DSM-IV criteria. In December 2010, the Veteran received another VA examination for his service-connected adjustment disorder. Following evaluation, the examiner found that the Veteran continued to meet the DSM-IV diagnostic criteria for an adjustment disorder with depressed mood and anxiety. VA medical records generally document complaints of, or treatment for, psychiatric symptoms. In February 2006, a VA medical provider noted that the Veteran complained of sleep problems, not being around people, paranoid episodes and being short tempered. That provider referred the Veteran to a psychiatrist for possible PTSD. A March 2006 VA mental health initial consult note documents that the Veteran denied prior psychiatric problems. The VA medical provider noted that the Veteran may have had a positive PTSD screen. However, following evaluation the VA medical provider only diagnosed the Veteran with an adjustment disorder, sleep disturbance and rule out PTSD. Although VA medical records also document impressions of rule out PTSD, none of those records document that the Veteran actually received a diagnosis of PTSD. In a January 2008 VA mental health consult note, the VA medical provider noted that the Veteran had been evaluated for PTSD by various medical professionals, but was diagnosed with chronic adjustment disorder. VA medical records also repeatedly document that the Veteran had negative screens for PTSD, including on December 12, 2007, August 14, 2009, January 19, 2010, and June 16, 2010. The above-cited evidence reflects that the record contain no competent, persuasive evidence that the Veteran has actually been diagnosed with PTSD at any point pertinent to this appeal, although the record is replete with a diagnosis for the Veteran's already service-connected adjustment disorder with depressed mood and anxiety . The Board acknowledges the Veteran's contention that he has a diagnosis of PTSD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of a psychiatric disability - specifically PTSD, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In the present case, the Board finds that not one medical record documents an actual diagnosis of PTSD by a medical professional. At most, the Veteran has received rule out PTSD findings. However, the Veteran has undergone years of psychiatric treatment since such rule out findings had been made and none of the subsequent VA medical providers diagnosed the Veteran with PTSD. Furthermore, the Veteran has undergone multiple VA mental disorders examinations and none of the VA examiners found the Veteran to have PTSD. In short, the competent, probative evidence simply does not support finding that the Veteran has, in fact, been diagnosed with PTSD at any time pertinent to this appeal. In fact, the collective medical evidence indicates that the Veteran does not have PTSD. As the first, essential criterion for service connection for PTSD-a current medical diagnosis of the disorder in accordance with the DSM-IV-is not met, service connection for PTSD cannot be established, the Board need not address the remaining criteria for service connection for PTSD. See 38 C.F.R. § 3.304(f). For all the foregoing reasons, the Board finds that the claim for service connection for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Benign Prostatic Hyperplasia (BPH) Increased Rating Claims The Veteran contends that his BPH is more severe than indicated by the 20 percent disability rating he had prior to June 6, 2012 and the 40 percent disability rating he currently has had since June 6, 2012. In October 2009, the Veteran reported that he had begun to experience increased bathroom visits, lack of a sexual drive and at times burning during urination; he subsequently had green light laser surgery in 2009. In an undated private medical record, Dr. R.D. Davis (who performed the Veteran's green light surgery), noted that the Veteran had BPH with bladder outlet obstruction and urinary retention and erectile dysfunction. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. However, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran is currently rated under Diagnostic Code 7527, for prostate gland injuries, infections, hypertrophy and postoperative residuals. Under Diagnostic Code 7527, such disabilities should be rated as voiding dysfunction or urinary tract infect, whichever is predominant (emphasis added). 38 C.F.R. § 4.115(b). The criteria for voiding dysfunction indicates that particular condition should be rated as urine leakage, frequency, or obstructive voiding (emphasis added). The criteria for urine leakage provide that with continual urine leakage, postoperative urinary diversion, urinary incontinence, or stress incontinence a 20 percent rating is assigned for urinary leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating is assigned for urinary leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is assigned for urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. The criteria for urinary frequency provide that a 10 percent rating is assigned for urinary frequency with daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is assigned for urinary frequency with daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating is assigned for urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night. As to obstructive urinary symptoms the applicable rating criteria provide that symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants a noncompensable rating. A 10 percent rating is assigned for obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec).; (3) recurrent urinary tract infections secondary to obstruction.; (4) stricture disease requiring periodic dilatation every 2 to 3 months. Obstructive voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. As to urinary tract infections, when there is long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management, a 10 percent rating is warranted. Recurrent symptomatic urinary infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating. Urinary tract infections with poor renal function are to be rated as renal dysfunction. As to renal dysfunction, a noncompensable disability rating is assigned for renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. A 30 percent rating is assigned for renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7100. A 60 percent rating is assigned for renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is assigned for renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is assigned for renal dysfunction when requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. A. Factual Background During an October 2008 genitourinary VA examination, the Veteran denied urinary incontinence. He reported getting up about three times a night to urinate and six to seven times a day. The examiner noted no recurrent urinary tract infections and that the Veteran did not require catheterization, dilation or drainage procedures. Private medical records by Dr. R.D. Davis document that the Veteran had received treatment for BPH with bladder outlet obstruction and underwent green light laser surgery in 2009. A March 11, 2009 record documents that Dr. Davis diagnosed the Veteran with BPH with bladder outlet obstruction, as well as, urinary retention and erectile dysfunction. An April 30, 2009 record documents the Veteran's surgery. In October 2009, the Veteran underwent another genitourinary VA examination. The Veteran reported urinary frequency of approximately once per hour and twice nightly. He also reported wearing a diaper in public, secondary to stress incontinence, but that he did not wear one during his routine daily activities. He also claimed to have retrograde ejaculation since his laser treatment. The Veteran denied urinary tract infections and hematuria. He reported only one hospitalization in March 2009, for two days for his green light laser treatment. The examiner found that the Veteran had BPH, which did not adversely affect the Veteran's ability to perform activities of daily living or his usual occupational activities. In a February 2010 statement, the Veteran reported that he had to urinate once every 30 minutes or more. He also reported that he wore diapers during the daytime, although he hated it, and that when he did not wear them he would have frequent accidents. He indicated that he would have to change his clothes at least twice a day and was limited socially because his urination problems. VA medical records (such as in October 2009, April 2010 and April 2011) document the Veteran's reports of sometimes having urgency/hesitancy/frequency, with nocturia one to two times and no dysuria. In June 2012, the Veteran underwent another VA examination. The examiner noted diagnoses of erectile dysfunction and prostate hypertrophy (BPH). In regards to voiding dysfunction, the examiner found it was due to BPH and caused urinary leakage requiring absorbent material that must be changed two to four times per day. The voiding dysfunction did not require the use of an appliance. However, the voiding dysfunction did cause urinary frequency, including daytime voiding intervals of less than one hour and night time awakening to void three to four times. The Veteran also had slow or weak steam and decreased force of stream. The June 2012 VA examiner also found that the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. Additionally, the examiner found that although the Veteran had erectile dysfunction, it was less likely as not attributable to the Veteran's BPH, including as residuals of treatment for that disorder. The examiner also found that the Veteran did not have any other pertinent physical finding, complications, conditions or signs or symptoms (including scars) related to the disability. The examiner determined that the condition did not impact the Veteran's ability to work. The examiner also noted that the incontinence as related to residuals of transurethral surgery for BPH by the private urologist in 2009. In a June 2012 RO hearing, the Veteran reported the Veteran reported that he had leak issues and had to change his diapers at least twice a day on average. B. Analysis The Veteran contends that a disability rating in excess of 20 percent is warranted for his BPH, prior to June 6, 2012. Additionally, he contends a disability rating in excess of 40 percent is warranted for BPH from June 6, 2012. However, as the Board is granting a 40 percent disability rating from February 25, 2010 (as will be explained herein), the question becomes (1) whether a disability rating in excess of 20 percent is warranted prior to February 25, 2010 and (2) whether a disability rating in excess of 40 percent is warranted from February 25, 2010 As an initial matter, the Board notes that under Diagnostic Code 7527 his BPH should be rated as voiding dysfunction or urinary tract infection, whichever is predominant. The Veteran denied having urinary tract infections during his October 2009 VA examination. Additionally, in the October 2008 VA examination, the examiner noted that the Veteran did not have recurrent urinary tract infections, though the Veteran had reported past treatment for one. The June 2012 VA examiner also found no history of recurrent symptomatic urinary tract or kidney infections. Furthermore, the evidence of record otherwise does not document complaints of, or treatment for, urinary tract infections. Moreover, the majority of the Veteran's complaints have been made regarding voiding dysfunction. As such, the Veteran's predominant symptom is voiding dysfunction, rather than urinary tract infections. As such, he will be rated under the criteria for voiding dysfunction. As previously noted, the criteria for voiding dysfunction indicates that particular condition should be rated as urine leakage, frequency, or obstructive voiding Prior to February 25, 2010, the evidence of record does not support finding that the Veteran's BPH warrants a disability rating in excess of 20 percent. Under the criteria for obstructive voiding, a disability rating in excess of 20 percent - specifically a 30 percent rating, is only warranted for obstructive voiding with urinary retention requiring intermittent or continuous catheterization. None of the evidence of record documents that the Veteran has required catheterization. Under the criteria for urinary frequency, the next higher disability rating of 40 percent would be warranted for urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night. During the October 2009 VA examination, the Veteran reported urinary frequency of approximately once per hour and twice nightly. As such, prior to February 25, 2010, a disability rating in excess of 20 percent is not indicated. Under the criteria for urine leakage, a disability rating in excess of 20 percent would require the wearing of absorbent materials which must be changed two or more times a day. During the October 2009 VA examination, the Veteran reported that he only wore diapers in public, but did not wear them during his routine daily activities. Such a report is indicative of not needing diapers routinely on a daily basis. Based on the evidence of record prior to February 25, 2010 a disability rating in excess of 20 percent for BPH is not warranted. From February 25, 2010, however, the record supports finding that a 40 percent disability rating, but no higher, is warranted. The Board notes that the 40 percent it is granting is higher than the maximum 30 percent possible for obstructive voiding. As such, the Board will not discuss the rating criteria related to obstructive voiding. Under the criteria for urinary frequency, the disability rating of 40 percent (the next higher and maximum rating possible under this criteria) is warranted for urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night. In the Veteran's February 2010 statement, received by VA on February 25, 2010, the Veteran reported urinary frequency of every 30 minutes more. That report is consistent with a 40 percent disability rating. However, a disability rating in excess of 40 percent under this criteria is not possible, as the 40 percent rating is the maximum possible. Similarly, under the criteria for urine leakage, a disability rating in excess of 40 percent requires the wearing of absorbent materials which must be changed two to four times a day. In the Veteran's statement, received by VA on February 25, 2010, he reported wearing diapers during the daytime and having to change his clothes at least twice a day. That report thus supports finding that a 40 percent disability rating is warranted. For the sake of clarity, the Board notes that the Veteran cannot receive separate ratings for both urinary frequency and urine leakage simultaneously. The criteria for voiding dysfunction specifically states that "[r]ate particular condition as urine leakage, frequency, or obstructed voiding". The voiding dysfunction criteria thus clearly indicates that the Veteran should only be rated under either urine leakage or frequency or obstructive voiding. Of all the possible rating possibilities for voiding dysfunction, urine leakage is the only one for which a disability rating in excess of 40 percent is possible and thus provides for a possibility of a higher rating if warranted. Additionally, it is the symptom for which the Veteran has made the most complaints. As such, the Board finds that it is the most appropriate criteria to apply when rating the Veteran's BPH, though the Veteran would also qualify for a 40 percent disability rating based on urinary frequency. However, to be clear, the maximum rating of 60 percent for urine leakage is not warranted. There is no evidence of record indicating that the Veteran's absorbent materials must be changed more than 4 times a day. The Veteran has not made such a claim. Furthermore, the June 2012 VA examiner found that the BPH caused urinary leakage, which caused the Veteran to have to change his absorbent material two to four times per day. Such a finding is consistent with a 40 percent disability rating, but not a 60 percent disability rating. The Veteran has also claimed that he has erectile dysfunction and retrograde ejaculation due to his BPH or surgery to treat his BPH. Diagnosis and etiology of complex disabilities not capable of being established on the basis of lay observation or other sensory perception, alone, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). The only evidence provided supporting the claim are in statements from the Veteran himself. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)) as to the specific issue in this case, the diagnosis and etiology of any current erectile dysfunction and retrograde ejaculation falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran's lay assertions as to diagnosis and etiology have no probative value. He cannot support his contention that these disorders are part of his service-connected BPH on the basis of lay assertions alone. Moreover, the June 2012 VA examiner specifically found that the Veteran's erectile dysfunction was less likely as not attributable to the Veteran's BPH, including as residuals of treatment for that disorder. That VA examiner also specifically found that the Veteran did not have retrograde ejaculation. The Board further notes that the Veteran is already service-connected for erectile dysfunction (granted in the December 2007 rating decision). Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected disability of BPH. In this regard, the Board finds that the Veteran's symptomatology associated with the disability is fully addressed by the rating criteria. Specifically, the rating criteria addresses the Veteran's complaints of voiding dysfunction, including urine leakage, frequency and obstructed voiding, as well as, possible urinary tract infection. As to the Veteran's claim that it limited his ability to be in public, that was only because (as reported by the Veteran) he did not like wearing his absorbent materials. The wearing of absorbent materials, however, is fully contemplated by the rating criteria. To the extent that the Veteran has claimed dysuria, urinary tract infection contemplates symptomatic infection. Additionally, as previously noted, the Veteran's claimed erectile dysfunction (for which the Veteran is already service-connected) and retrograde ejaculation are not part of his BPH. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. Even if the Board were to find that step one of Thun had been satisfied, which it does not, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The Veteran's BPH does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). The Veteran was only hospitalized once for BPH, for his green laser surgery, and then for only two days; one hospitalization over the entire appeal period is not frequent hospitalization. As to employment, the October 2009 VA examiner found that BPH did not affect the Veteran's ability to perform activities of daily living or his usual occupational activities. The June 2012 VA examiner found that BPH did not impact the Veteran's ability to work. Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. The Board further notes that the Veteran's TDIU claim is addressed in the Remand portion of this decision. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for higher disability ratings during the applicable time periods. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. [Continued on the next page] ORDER Service connection for PTSD is denied. Prior to February 25, 2010, a disability rating in excess of 20 percent for BPH is not warranted. From February 25, 2010, a disability rating of 40 percent, and no higher, for BPH is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In regards to the obstructive sleep apnea claim, a March 20, 2009 VA medical record documents that the Veteran has a current diagnosis of obstructive sleep apnea. During his June 2012 RO hearing the Veteran reported that according to his wife his snoring started around 1990 (though they had been married since 1979). He then stated his problem got worse in Iraq in 2004. Additionally, in October 2006, the Veteran submitted several lay statements (from his wife, C.J. and J.S.) regarding their experiences observing the Veteran sleep. However, no medical opinion is of record that addresses the question of whether the Veteran's obstructive sleep apnea developed in or was caused by service. A VA examination should be provided to determine the nature, extent, onset, and etiology of the claimed disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran contends that he is entitled to TDIU. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the TDIU claim is also remanded. The Board also notes that the Veteran last underwent a VA examination for TDIU in November 2008 and that some of the Veteran's disabilities have worsened since that time (such as the service-connected BPH discussed above). As such, a current medical opinion as to the question unemployability should be obtained. As these matters are being remanded, the Board notes that the Veteran receives VA treatment through the Jackson VA Medical Center and the most recent treatment records are dated in April 2011. Therefore, while on remand, VA treatment records from the Jackson VA medical center dated from April 27, 2011 to the present should also be obtained for consideration in the appeals. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should obtain VA treatment records from the Jackson VA medical center dated from April 27, 2011 to the present. 2. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his obstructive sleep apnea. Based on examination findings, including any necessary diagnostic studies, as well as a review of the claims file, including treatment records, the Veteran's statements, and a copy of this REMAND, the examiner is should render opinions as to the following: a) Does the Veteran currently have obstructive sleep apnea? b) Is it at least as likely as not that any obstructive sleep apnea is related to the Veteran's active service? The examiner should specifically consider the Veteran's lay statements, including those made during his June 2012 RO hearing and the lay statements from the Veteran's wife, C.J. and J.S. (received in October 2006) regarding their experiences observing the Veteran sleep. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology and the results of any pertinent medical evidence. An explanation for any opinion offered should be provided. 3. Upon completion of the foregoing, the claims file should be forwarded to an appropriate medical profession to offer an opinion as to whether the Veteran's service-connected disabilities render him unemployable. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner shall indicate in the report that the claims file was reviewed. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the opinion. Following a review of the record, the examiner should render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. In this regard, the Veteran is service-connected for (i) benign prostatic hyperplasia (BPH) (with a 20 percent disability rating prior to February 25, 2010 and a 40 percent disability rating from that time); (ii) an adjustment disorder with depressed and anxious mood (with a 10 percent disability rating prior to July 29, 2010 and a 30 percent disability rating from that time); (iii) a right shoulder strain, status post arthroscopy (with a 20 percent disability rating from March 1, 2007); (iv) right foot plantar fasciitis with calcaneal spur (with a 10 percent disability rating from March 1, 2007); (v) cervical strain (with a 10 percent disability rating from March 1, 2007); (vi) degenerative changes of the lumbar spine (with a 10 percent disability rating from March 1, 2007); and noncompensable: (vii) left should strain, (viii) left knee sprain, (ix) left foot plantar fasciitis, (x) allergic vasomotor rhinitis, (xi) hypertension, (xii) status post cholecystectomy, (xiii) gastrosesophogeal reflux disorder, (xiv) erectile dysfunction (xv) onycomycosis, status post bilateral great toenail removal. All opinions offered should be accompanied by a rationale. 4. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the RO/AMC should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs