Citation Nr: 1604001 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 12-16 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for sinusitis. 2. Entitlement to an effective date prior to November 24, 2008 for the grant of service connection for obstructive sleep apnea. 3. Entitlement to higher initial ratings for bilateral pes planus, greater than 10 percent prior to December 22, 2014, and greater than 30 percent thereafter. 4. Entitlement to an increased rating, greater than 30 percent, for posttraumatic stress disorder (PTSD). 5. Entitlement to a higher initial rating, greater than 10 percent, for coronary artery disease. 6. Entitlement to service connection for sinusitis. 7. Entitlement to service connection for a low back disorder. 8. Entitlement to service connection for neuropathy of the hands and feet, to include as secondary to service-connected hypertension. 9. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypertension. 10. Entitlement to service connection for erectile dysfunction to include as secondary to service-connected hypertension. 11. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ashley Brooke Thomas, Attorney ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service with the United States Army from May 1979 until August 1979, and with the United States Marines from March 1982 until June 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2009, March 2010, and May 2012 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran has twice requested hearings before a Veterans Law Judge (VLJ), and in each case subsequently withdrew his request. The Board acknowledges that the issues of entitlement to higher initial ratings for coronary artery disease and pes planus have been perfected, but not yet certified to the Board. The Board's review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is no longer taking action on these issues, and as such, the Board accepts jurisdiction over them at this time. The issues of entitlement to higher ratings for PTSD and coronary artery disease, as well as his appeals for service connection for sinusitis, a low back disorder, neuropathy of the hands and feet, diabetes, and erectile dysfunction, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2006 decision, the RO denied service connection for sinusitis. The Veteran did not file an appeal, and the decision became final. 2. The evidence associated with the claims file subsequent to the April 2006 decision relates to unestablished facts that are necessary to substantiate the Veteran's service connection claim regarding in-service complaints and symptoms of sinusitis. The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. Entitlement to service connection for obstructive sleep apnea did not arise prior to November 24, 2008 - the effective date for the awards of service connection. 4. Prior to December 22, 2014, bilateral pes planus was productive of periodic pain, without objective evidence of marked deformity, pain on manipulation and use, indication of swelling on use, or characteristic callosities. 5. Since December 22, 2014, bilateral pes planus has been productive of pain and use of orthopedic shoes and appliance, but not evidence of marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, or severe spasm of the tendo Achilles on manipulation. CONCLUSIONS OF LAW 1. An April 2006 decision denying service connection for a sinusitis became final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. Evidence received since the April 2006 decision is new and material to reopen a claim of service connection for a sinusitis. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for an effective date prior to November 24, 2008, for the grant of service connection for obstructive sleep apnea has not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.104(a), 3.151, 3.155, 3.400(b)(2) (2015). 4. The criteria for an initial rating in excess of 10 percent for bilateral pes planus were not been met or more nearly approximated at any time prior to December 22, 2014. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5276 (2015). 5. The criteria for an initial rating in excess of 30 percent for bilateral pes have not been met or more nearly approximated at any time during the rating period on appeal, including since December 22, 2014. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 2576 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Service Connection for Sinusitis The Veteran is seeking to reopen a previously denied claim of service connection for sinusitis. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105 (West 2014). However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an April 2006 decision, the RO denied a claim for service connection for sinusitis, based on the lack of a current diagnosis. While there was some in-service evidence of acute treatment, the RO also found that there was no evidence that sinusitis became chronic during service. The Veteran did not appeal from this decision and the denial became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103 (2015). Since the time of the prior final denial, nearly a decade ago, VA has receive hundreds of pages of VA and private treatment records, as well as numerous statements by the Veteran. Newly added treatment records include an October 2006 medical report and June 2009 VA examination indicating a medical history included "chronic sinusitis," and a February 2009 statement of the Veteran endorsing in-service episodic symptoms "several times . . . each lasting five to six weeks with antibiotic treatment." In determining whether newly received evidence is new and material, the credibility of the evidence is to be presumed. Justus, 3 Vet. App. at 513. While the foregoing is not itself dispositive either of a current diagnosis of chronic sinusitis, nor that related symptoms actually occurred during service, when credibility is presumed, as is required when determining solely whether to reopen a previously denied claim, the newly added evidence represents evidence not previously submitted to agency decision makers which relates to unestablished facts necessary to substantiate the claim. Accordingly, the Board finds that the additional evidence is new and material to reopen service connection for sinusitis. Earlier Effective Date for the Award of Service Connection for Obstructive Sleep Apnea The Veteran contends that he is entitled to an effective date earlier than November 24, 2008 for the grant of service connection for sleep apnea. Specifically, he argues that he was diagnosed with disability less than two months after separating from service, and is thus entitled to an effective date as early as July 1, 2005, the date of his retirement from the Marines. After reviewing the entire claims file, the Board finds that an earlier effective date cannot be awarded for the grant of service connection. For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim resulting in the award of service connection filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (2015). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2015). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. In September 2005, less than one year after leaving active service, VA received the Veteran's initial claim of service connection for sleep apnea, a disorder which he noted had been diagnosed in August 2005. Of record, was a July 2005 treatment note in which the Veteran complained of daytime somnolence and his wife indicated that he "snores very loudly every day." The assessment was of "possible sleep apnea," though there was also some suggestion that symptoms may have been due to gastroesophageal reflux disease. On VA examination in March 2006, obstructive sleep apnea was diagnosed, and the Veteran reported a 25-pound weight gain over the prior year. No opinion was offered regarding the onset of sleep apnea, nor its relation to service. In the April 2006 RO decision denying service connection, the RO recognized that sleep apnea had been diagnosed soon after separation, but at the time "there [was] no evidence that this condition either occurred in or was caused by service." The Board's review of the record comports with the RO's conclusion, and the Board reiterates that at the time of the decision, the positive evidence of record merely illustrated that the Veteran had a confirmed diagnosis of sleep apnea, and that such diagnosis had been made after separation from service. The Veteran did not appeal from the decision, and the denial became final. Thereafter, some additional evidence was received by VA within one year of the April 2006 denial. However, on review, the Board finds none was new and material to stay the finality of the April 2006 decision. Thereafter, VA received no communication which may have been interpreted as a formal or informal attempt to reopen the claim of service connection for obstructive sleep apnea until November 2008, at which time additional post-service treatment records were submitted. In December 2008, VA received a statement from a private physician who opined that although "obstructive sleep apnea was a chronic condition . . . that was not diagnosed until 2005 . . . [the Veteran] suffered from the symptoms long before his retirement." It was based in part on this evidence, showing that sleep apnea had its onset during service, that the RO granted service connection in February 2010, effective November 24, 2008 - the date of receipt of the claim to reopen. In his March 2010 notice of disagreement appealing from the effective date established for the award of service connection, the Veteran asserted that because competent medical professionals had subsequently established that sleep apnea began during service, and because he had first claimed service connection for the disorder concurrently with hypertension (which was granted, effective July 1, 2005), that service connection for sleep apnea should also have been made effective July 1, 2005. Simply put, following the final decision by the RO in April 2006, there was no pending claim for service connection for sleep apnea until VA received the Veteran's claim to reopen the matter in November 2008. As such, an effective date prior to the date of receipt of the Veteran's claim to reopen cannot be established. Again, the controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) ; 38 C.F.R. § 3.400(b)(2)(i). Thus, as the date of claim to reopen was not prior to November 28, 2008, an effective date for the grant of service connection for obstructive sleep apnea earlier than such date cannot be granted. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). To the extent that the Veteran asserted in March 2010 that "a clear and unmistakable error (CUE) was made in the initial denial of my claim as well as the subsequent . . . rating decision establishing the effective date of 24 Nov[ember] 2008," the Board acknowledges that an earlier effective date might be available if VA were to vitiate the finality of the initial April 2006 RO decision. See 38 C.F.R. § 3.105(a) (2015). Specifically, if the evidence establishes clear and unmistakable error (CUE) in the prior decision, the prior decision will be reversed or amended; a finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.105(a) (2015). However, CUE is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The claimant must provide "some degree of specificity as to what the alleged error is, and, unless it is the kind of error . . . that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (emphasis in original). Though he used the term "clear and unmistakable error," the current contentions raised do not amount to an allegation of CUE, as there has been no specific error of fact or law identified. Thus, in the absence of en effectively raised CUE claim, CUE cannot be a basis of an earlier effective date for the award of service connection at issue before the Board. 38 C.F.R. § 3.105; see Fugo, 6 Vet. App. at 44 (claim of CUE must be pled with specificity). Initial Ratings for Bilateral Pes Planus Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2015). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The appeal for a higher initial rating for pes planus is an appeal from the initial assignment of a disability rating following the establishment of service connection. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In reviewing the initial ratings on appeal, the Board has considered applying alternate Codes to evaluate the Veteran's service-connected disabilities where applicable. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this regard, the Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," see Butts v. Brown, 5 Vet. App. 532, 538 (1993), and that one Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In the May 2012 decision on appeal, service connection for pes planus was granted with a 10 percent evaluation effective November 24, 2008. In January 2015, the Veteran was granted a 30 percent rating, effective December 22, 2014. Pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5276. Diagnostic Code 5276 provides ratings for acquired flatfoot (i.e., pes planus) where moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a, DC 5276. Descriptive words such as "moderate," "severe," and "pronounced" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2015). The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. §§ 4.2, 4.6 (2015). After reviewing the entire claims file, the Board finds that bilateral pes planus has was not more than 10 percent disabling prior to December 22, 2014, or more than 30 percent disabling at any time thereafter. Specifically, prior to December 2014, foot symptoms were without objective evidence of marked deformity, pain on manipulation and use, indication of swelling on use, or characteristic callosities. Since December 2014, the feet have been without evidence of marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, or severe spasm of the tendo Achilles on manipulation. In February 2009 the Veteran asserted that the arches of both feet had fallen, and on VA examination in October 2009 he reported "foot pain from time to time." He reported no pain with walking or at rest, weakness, or fatigability, and treatment consisted of 800mg of Motrin daily. The Veteran endorsed using cosmetic Rockport shoes, with effectiveness, but he had not been prescribed any shoes inserts or braces by a healthcare provider. With regards to functional limitation, on standing and walking the Veteran reported that he was able to stand and walk 1 to 11/2 hours at time. Physical examination of the feet revealed no objective evidence of painful motion, edema, weakness, instability, or tenderness. There was no evidence of abnormal weightbearing, callosities, unusual shoe wear, deformities, or ulcers. The arches appeared flat with weightbearing, but there were otherwise no "objective findings to support a diagnosis of pea planus or residual functional limitation of claimed condition." A February 2010 nursing note reflected reports of bilateral foot pain when assuming a specific position for a long time. Pain, rated as seven out of ten in severity, was relieved by elevation. From February 2010, treatment notes are largely silent for complaints or reports of symptoms until, on a Gulf War Registry examination in April 2012, the Veteran endorsed burning soles with "significant" pes planus. He had some relief of symptoms with over the counter shoe inserts. Otherwise there were no symptoms on the dorsum of the feet, and pes planus was described as "marked." In April 2014, bilateral heel pain was endorsed, though overall pain had improved by 50 percent. On physical palpation of the inferior medial aspect of both heels, pain was elicited along the medial band of the plantar fascia. The assessment was of plantar fasciitis, and a pair of custom functional orthotics were issued. On VA examination in December 2014, the Veteran reported that he was able to stand for 30 minutes at a time, and that he had been wearing orthotics since February 2013. Without orthopedic shoes and shoe inserts, he "can't stand at all because of foot pain." The examiner noted that there were no flare-ups which impacted the function of the feet, there was no functional loss or functional impairment of the feet, and no pain was elicited on physical examination. The examiner observed "mild pronation both feet, consistent with pes planus," and opined that functional limitation of the feet was due to pain, which itself was a symptom of plantar fasciitis, secondary to bilateral service-connected pes planus, "as well as bilateral feet neuropathy (unrelated to [service-connected] bilateral pes planus)." The examiner concluded, however, that it was "not possible to determine the precise percentage of foot pain caused by each of these risk factors in the overall foot pain." As an inial matter, the Board recognizes that - as indicated by the December 2014 examiner's report, it is not medically possible to separate the level of disability caused by pes planus, plantar fasciitis, and neuropathy. Thus, the Board considers the overall disability picture of the feet without regard for the specific source of any manifest limitations in finding that a higher initial rating is not warranted for either period on appeal. Specifically, prior to December 2014, the evidence reflects that the feet were largely asymptomatic, and to the extent that pain was present, there were no functional limitations tantamount to a "severe" foot disability. Pain, though the Veteran gave probative reports of its existence, was not accentuated on use and manipulation, the feet were not swollen, and there was no evidence of characteristic callosities at any time prior to December 2014. Similarly, while the December 22, 2014 VA examination report reflected evidence of symptoms such as mild pronation of the feet and the use of orthopedic shoes and shoe inserts, none of those symptoms associated with a rating greater than 30 percent were present. Flatfeet were not pronounced, there was no marked inward displacement or extreme tenderness of plantar surfaces, and no severe spasm of the tendo Achilles on manipulation. The Board recognizes that without orthotic appliances, the Veteran was reportedly unable to stand due to foot pain, but the evidence shows - including by his own reports - that symptoms are improved with their use. After reviewing the entire claims file, the Board finds that bilateral pes planus has was not more than 10 percent disabling prior to December 22, 2014, or more than 30 percent disabling at any time thereafter. Specifically, prior to December 2014, foot symptoms were without objective evidence of marked deformity, pain on manipulation and use, indication of swelling on use, or characteristic callosities. Since December 2014, the feet have been without evidence of marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, or severe spasm of the tendo Achilles on manipulation. The Board recognizes that pes planus was described as "marked" on Gulf War Registry examination in April 2012, however, this was a generally description of the overall disability, and the evidence otherwise shows that none of those symptoms specifically identified for consideration by the rating criteria were themselves "marked" in degree or severity. Having evaluated the feet on a schedular basis, the Board has also considered whether referral for an extraschedular rating is warranted for the same. 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. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, 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. Id. at 115. The schedular rating criteria used to rate the feet above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of the overall level of disability including the presence of certain orthopedic findings and symptoms, and use of orthopedic appliances; thus, the demonstrated manifestations - namely periodic pain in the feet with a reduced capacity for standing and walking, and the use of orthopedic appliances - are contemplated by the provisions of the rating schedule. Accordingly, the Board finds that the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected feet that would render the schedular criteria inadequate. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities obstructive sleep apnea, PTSD, right knee replacement, gastroesophageal reflux disease, coronary artery disease, tinnitus, hypertension, hearing loss, and a right knee scar in concluding that referral for consideration of an extraschedular rating is not warranted. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. Accordingly, the Board concludes that bilateral pes planus has been not more than 10 percent disabling prior to December 22, 2014, and has not been more than 30 percent disabling thereafter. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Notice letters were sent to the Veteran in June 2009 and January 2009 to the initial adjudication of the respective claims on appeal. The notice included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Regarding those appeals with respect to initial ratings for the feet, the matter arises from appeal of the initial grant of service connection, evaluation, and establishment of effective dates. Once service connection is granted the claim is substantiated, and additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Federal Circuit has interpreted these decisions as meaning that VCAA notice is not required in the case of an appeal of an effective date assigned when an increased rating has been granted. See Sanford v. Peake, 263 F.App'x 54, 55 (Fed. Cir. 2008). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under applicable VA laws and regulations. VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private and VA treatment in addition to records from the Social Security Administration (SSA), to the extent that relevant records have been identified by the Veteran. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The duty to assist was further satisfied by VA examinations in June 2009, April 2011, November 2011, and December 2014 over the course of which examiners conducted physical examinations of the Veteran, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2015); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claims and no further notice or assistance is required. ORDER New and material evidence having been received, the appeal to reopen service connection for sinusitis is granted. An effective date earlier than November 24, 2008, for the award of service connection for obstructive sleep apnea is denied. An initial rating in excess of 10 percent for pes planus prior to December 22, 2014 is denied. An initial rating in excess of 30 percent for pes planus after December 22, 2014 is denied. REMAND Supplemental Statement of the Case Generally, the Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from a veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c) (2015). In February 2015 the Veteran waived initial AOJ consideration of "additional evidence and records" received by VA since the May 2012 Statement of the Case issued on the matters of neuropathy of the hands and feet, diabetes, erectile dysfunction, sinusitis, and entitlement to an earlier effective date for the award of service connection for sleep apnea. Since February 2015, however, additional evidence has been received into the record, including reports of July 2015 VA examinations relating to the foregoing issues. As there has been no waiver of this newly added, and pertinent, evidence, remand for initial consideration by the AOJ and issuance of a Supplemental Statement of the Case is necessary. The matters of entitlement to a higher initial rating for coronary artery disease, an rating for PTSD, and entitlement to service connection for a lumbar spine disorder were perfected to the Board in a March 2015 VA Form-9. While 38 U.S.C.A. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, this provision is only applicable to cases where the Substantive Appeal was filed on or after February 2, 2013, and does not apply to VA-generated evidence, such as VA examination reports or VA treatment records. 38 U.S.C.A. § 7105(e) (West 2014). In July 2015, evidence added to the record included examination reports of examinations referable to both coronary artery disease and the spine. As there is no indication that the Veteran has specifically waived initial AOJ adjudication of this newly added relevant evidence, a remand is required for the AOJ to consider the new VA-generated evidence and issuance of a Supplemental Statement of the Case. TDIU The Veteran is seeking a TDIU. The central inquiry with a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran asserts that he is incapable of working in part due to the service-connected PTSD, as well as a combination of his other service-connected disabilities which impact his physical mobility and ability to stand. The Veteran's appeal for higher ratings for PTSD and coronary artery disease, as well as his appeals for service connection for sinusitis, a low back disorder, neuropathy of the hands and feet, diabetes, and erectile dysfunction are intertwined with the claim for TDIU; therefore, the issue of TDIU is not ripe for final appellate consideration at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). Accordingly, the case is REMANDED for the following action: 1. The RO should review the record, including all evidence received since the most recent issuance of statements of the case in May 2012 and January 2015. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 2. Inasmuch as the issue of entitlement to TDIU is deemed to be "inextricably intertwined" with the issues of higher ratings for PTSD and coronary artery disease, as well as his appeals for service connection for sinusitis, a low back disorder, neuropathy of the hands and feet, diabetes, and erectile dysfunction, the RO should take appropriate adjudicative action on those actions, and thereafter any appropriate adjudicative action on the matter of entitlement to TDIU. 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 2014). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs