Citation Nr: 1611207 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 10-21 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for fibromyalgia. 2. Entitlement to service connection for fibromyalgia. 3. Whether rating decisions in October 1991, June 1992, September 1996 and June 2006 should be revised or reversed on the grounds of clear and unmistakable error (CUE). 4. Entitlement to an effective date earlier than July 27, 2009, for the grant of a 20 percent rating for a right shoulder disability, presently characterized as right shoulder impingement syndrome, status post arthroscopic surgery with degenerative arthritis. 5. Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome, status post arthroscopic surgery with degenerative arthritis, from July 27, 2009, to July 14, 2011. 6. Entitlement to a rating in excess of 10 percent for right shoulder impingement syndrome, status post arthroscopic surgery with degenerative arthritis, from July 14, 2011, to include the propriety of the reduction from 20 percent to 10 percent. 7. Entitlement to an initial compensable rating for sinusitis prior to January 29, 2010. 8. Entitlement to a rating in excess of 10 percent for sinusitis from January 29, 2010. 9. Entitlement to a rating in excess of 30 percent for migraine headaches from July 27, 2009. 10. Entitlement to a total disability rating based on individual unemployability due to service connection disability (TDIU). 11. Entitlement to an effective date earlier than July 14, 2011, for the assignment of a 50 percent rating for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to July 1990. He also served in the Reserves from July 1990 to September 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2008, April 2010, August 2010 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 2015, the Veteran testified before the undersigned at a Board hearing at the RO. A transcript of the hearing is of record. In written argument in March 2015, the Veteran attempted to raise claims for earlier effective dates for the grants of service connection for sinusitis and migraines. These matters are referred to the RO for appropriate action. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Both files have been considered. The issues of entitlement to service connection for fibromyalgia, higher ratings for the right shoulder disability, a TDIU, and an effective date earlier than July 14, 2011 for the assignment of a 50 percent rating for an acquired psychiatric disorder are being remanded and 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 a June 2008 rating decision, the RO denied service connection for fibromyalgia as separate and distinct from his service connected right shoulder disability. The Veteran did not perfect an appeal of this decision by filing a substantive appeal. 2. Evidence received since the June 2008 rating decision relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim. 3. The October 1991, June 1992, September 1996 and June 2006 rating decisions were not clearly and unmistakably erroneous or fatally flawed based on the evidence then of record and the statutes and regulations then in effect. 4. Prior to January 29, 2010, the Veteran had three to six non-incapacitating episodes of sinusitis per year manifested by headaches, pain and purulent discharge. 5. From January 29, 2010, the Veteran had more than six non-incapacitating episodes per ear of sinusitis characterized by headaches, tenderness and purulent discharge or crusting. 6. From July 27, 2009, the Veteran's migraine headaches have been characterized by very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. 7. It was not factually ascertainable that the Veteran's right shoulder disability increased beyond that that recognized by the assigned 20 percent rating during the one-year period prior to the filing of the July 27, 2009 claim. CONCLUSIONS OF LAW 1. The June 2008 rating decision that denied service connection for fibromyalgia as a separate condition distinct from service connected right shoulder disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2007). 2. Evidence received since the June 2008 rating decision is new and material and the claim of entitlement to service connection for fibromyalgia is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The October 1991, June 1992, September 1996 and June 2006 rating decisions did not contain CUE with respect to the assigned rating for the Veteran's service-connected right shoulder disability. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2015). 4. The criteria for an initial compensable rating of 10 percent for sinusitis prior to January 29, 2010, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6513 (2015). 5. The criteria for an increased evaluation, to 30 percent, but no higher, for sinusitis from January 29, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6513 (2015). 6. From July 27, 2009, the criteria for an increased, 50 percent, rating for migraine headaches have been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2015). 7. An effective date earlier than July 27, 2009, for a 20 percent rating for right shoulder impingement syndrome, status post arthroscopic surgery with degenerative arthritis is not warranted. 38 U.S.C.A. §§ 5110, 5107 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5101, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014), and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this appeal, the Board finds that in view of the Board's favorable disposition of the application to reopen service connection for fibromyalgia, the VCAA and its implementing regulations do not prevent the Board from rendering a decision as to this issue. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to motions for revision of a rating decision on the grounds of CUE. Livesay v. Principi, 15 Vet. App. 165 (2001). In this regard, review for CUE in a prior rating decision is based on the record that existed when that decision was made. 38 C.F.R. § 20.1403(b) (2015). With respect to the remaining increased rating issues being decided below, the duty to notify has been satisfied by letters dated in August 2005 and December 2009. These letters were sent prior to the respective rating decisions which are appealed herein. These letters explained how VA could assist the Veteran with obtaining evidence in support of these increased rating claims. The Board also finds that all evidence necessary for equitable resolution of the issues being decided herein has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He has been afforded VA examinations and the reports are deemed adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). He was afforded the opportunity to attend a Board hearing which he attended in February 2015. During the hearing, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claims. The actions of the undersigned supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements as to the claims decided herein. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. II. New and Material Evidence Fibromyalgia Law and Regulations Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). 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, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Discussion In this case, the RO denied service connection for fibromyalgia in a June 2008 rating decision, finding that there was no confirmed diagnosis of fibromyalgia to warrant a separate evaluation. That decision is final since the Veteran did not perfect an appeal of this issue. In this regard, the record shows that the RO issued the Veteran a statement of the case regarding this issue in July 2008, but the Veteran did not perfect the issue by filing a timely appeal. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Although the AOJ later reopened the claim in November 2012, the Board has an obligation to address new and material evidence regardless of what the AOJ did. See Jackson v. Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001). The evidence received since the June 2008 rating decision includes evidence that is new and material to the claim. See 38 C.F.R. § 3.156. The evidence includes VA treatment records, VA medical opinions in January 2010 and August 2010, a QTC opinion in August 2011, and a VHA opinion in August 2015, all diagnosing the Veteran as having fibromyalgia. This new evidence addresses a reason for the previous denial in that it shows that the Veteran has the disability that he claims and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened. III. Clear and Unmistakable Error in Rating Decisions in October 1991, June 1992, September 1996 and June 2006 Law and Regulations In general, VA rating decisions or Board decisions that are not timely appealed are final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2015). The claimant has one year from notification of the RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b), (c) (West 2014); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a) (2015). Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final will be accepted as correct in the absence of clear and unmistakable error (CUE). In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). The Court has devised a three-prong test to ascertain the presence of CUE in a prior determination which summarizes the law above: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and, (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In terms of the pertinent rating criteria, Diagnostic Codes 5200 through 5203 address disability ratings for the shoulder and arm. Diagnostic Code (Code) 5200 provides for the evaluation of a shoulder or arm disability if there is ankylosis of the scapulohumeral articulation. 38 C.F.R. § 4.71a. Code 5201 provides that limitation of motion of the major arm at shoulder level is rated as 20 percent; limitation of motion of the major arm to midway between the side and shoulder level is rated as 30 percent; and limitation of motion of the minor arm to 25 degrees from the side is rated as 40 percent. 38 C.F.R. § 4.71a, Code 5201. With respect to the major arm, Code 5202 provides that impairment of the humerus is rated as 20 percent with recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; impairment of the humerus is rated as 30 percent with recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements; impairment of the humerus is rated as 50 percent with fibrous union; impairment of the humerus is rated as 60 percent with nonunion (false flail joint); and impairment of the humerus is rated as 80 percent with loss of head (flail shoulder). 38 C.F.R. § 4.71a, Code 5202. Also under this code with respect to the major extremity, a 20 percent rating is warranted for malunion of the humerus with moderate deformity and a 30 percent rating is warranted for malunion of the humerus with marked deformity. Id. Under Code 5203, a 20 percent evaluation, the maximum available under this section, is assignable for dislocation of the clavicle or scapula, or nonunion with loose movement. This code also allows that alternatively, the disability may be rated on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Code 5203. Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Note (1) under Code 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71, Plate I, defines normal ranges of motion of the shoulder. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Discussion The Veteran asserts that RO rating decisions in October 1991, June 1992, September 1996 and June 2006 contain CUE because they evaluate his service-connected right shoulder disability under the wrong diagnostic code. That is, he asserts that the RO erroneously applied Code 5203, regarding impairment of the clavicle and scapula, rather than Code 5202, which pertains to impairment of the humerus. He contends that had he been rated under Code 5202, he would be entitled to a 30 percent evaluation effective to July 1990. His argument is viewed as an error in not correctly applying the law to the facts. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). For the reasons that follow, the Board does not find CUE in the October 1991, June 1992, September 1996 and June 2006 rating decisions. A close look at the rating decisions involved in this appeal show that the Veteran was rated under Code 5202 in the October 1991 rating decision. Thus, the Veteran's allegation of CUE by not applying Code 5202 in this decision is without merit since he was evaluated under this code. Furthermore, any disagreement as to how the evidence was weighed and evaluated under Code 5202 does not rise to the level of CUE. Fugo, 6 Vet. App. 40, 43-44. Turning to the remaining three rating decisions, the RO did evaluate the Veteran's right shoulder disability by analogy to Code 5203 in the June 1992 and September 1996 rating decisions, and under Code 5201 in the June 2006 rating decision. VA regulation provides that when unlisted condition is encountered, analogous ratings are permissible under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. As noted, the Veteran asserts that had he been rated under Code 5202, he would have been entitled to a 30 percent rating for recurrent dislocations at the scapulohumeral joint with frequent episodes and guarding of all movement. The Board does not agree. The evidence on file in June 1992, September 1996 and June 2006 includes the Veteran's report to medical personnel in 1990, along with his hearing testimony in June 1992, that he had not had any dislocations since the February 1990 surgery. He explained that he experienced popping and catching, but no real dislocations. The first indication of a right shoulder dislocation is not until June 1996 when the Veteran dislocated the shoulder playing basketball. Records from Charlotte Ortho Specialists in 1996 specifically note that a dislocation had not happened since the Veteran had had the shoulder arthroscopically repaired in service. During a May 2006 VA examination the Veteran reported his right shoulder last dislocated in 1996. Thus, there was no evidence of a shoulder dislocation at the time of the June 1992 rating decision and only one shoulder dislocation at the time of the September 1996 and June 2006 rating decisions. In view of evidence that supports a finding of no recurrent subluxation, the Veteran's argument essentially comes down to a disagreement with how the evidence was weighed. In this regard, mere disagreement with the weighing of evidence does not amount to CUE. See Russell, 3. Vet. App. at 313-14. The Veteran recently submitted evidence that includes a March 2015 statement and a February 2015 medical report from OrthoCarolina. In the medical report the physician clarified that the Veteran's records and exam show that his problems are related to the glenohumeral joint and surrounding rotator cuff and not specifically or isolated to the AC joint. However, CUE determinations are based on the law and evidence of record as they were at the time of the original decision. See 38 C.F.R. § 20.1304(c). Damrel, 6 Vet. App. at 245. Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. Porter v. Brown, 5 Vet. App. 233 (1993). With respect to the Veteran's assertions that a factual regulatory error had been made in not evaluating him under 38 C.F.R. § 4.71a, Code 5025 for his right shoulder disability, the Board notes that Code 5025 pertains to fibromyalgia. In this regard, as the title page of this decision shows, the issue of entitlement to connection for fibromyalgia is currently pending before the Board and is separate and distinct from the Veteran's service connected right shoulder disability. For the foregoing reasons, the Board finds that there was no CUE in the rating decisions in October 1991, June 1992, September 1996 and June 2006 as they pertain to evaluating the Veteran's right shoulder disability. That is, the Board does not find that either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Thus, the claim of CUE in the October 1991, June 1992, September 1996 and June 2006 rating decisions must be denied. IV. Increased Rating Claims A. General Rating Provisions Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Rating in Excess of 30 Percent for Migraine Headaches from July 27, 2009 Under Code 8100 for migraine headaches, a 10 percent disability rating is warranted where there are characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating for migraines is warranted where there are characteristic prostrating attacks occurring on an average of once a month over the last several months. Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent evaluation. 38 C.F.R. § 4.124a, Code 8100. The rating criteria do not define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." At the outset, the Board acknowledges that the Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observations. Jandreau v. Nicholson, 492 F.3d 1372 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This includes his statements in writing, to medical personnel, and at the February 2015 Board hearing regarding the severity and frequency of his migraine headaches. Further, his reports have been consistent, and the Board finds that he is credible in his reports. Layno v. Brown, 6 Vet. App. 1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). More specifically, the Veteran has been consistent in his reports of experiencing headaches two to three times a month lasting from three to five days. He has explained in writing, via his hearing testimony, and during medical examinations and treatment that during such times he is restricted to a dark room with no light or noise. He said he experiences occasional numbness, nausea, photophobia and shortness of breath. The Veteran's wife submitted a statement in January 2013 explaining that the Veteran's headaches cause him to lie in bed for days on end out of work and totally out of it. She said he is unable to function during one of his headaches and has two to three headaches a month. She went on to note that the longest headache she could remember lasted three days and that even after the headache was over the Veteran had to deal with light and sound sensitivity, dizziness and motion sickness. She said he can go for days in isolation. Regarding the medical evidence, there is a January 2010 VA examination report containing the examiner's report that the Veteran was unable to perform duties or activities of daily living while having a headache. She noted that almost all of his headaches were prostrating lasting from three to five days and occurring two to three times a month. The evidence also includes private treatment records in April 2012 showing that the Veteran was being followed for migraines and was assessed as having migraines that were "frequently debilitating". The Board concludes that the Veteran's migraine headaches have likely been manifested by very frequent prostrating and prolonged attacks productive of severe economic inadaptability throughout the whole period on appeal and that staged ratings are not necessary. See Fenderson, supra. In light of this finding, the Board concludes that the criteria for a 50 percent rating have been met or approximated from July 27, 2009. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A higher schedular rating for headaches is not assignable as a 50 percent rating is the maximum schedular rating under Diagnostic Code 8100 for migraine headaches. There are no other diagnostic codes available that would provide an analogous evaluation of this disability. B. Increased Ratings for Sinusitis 1. Pertinent Criteria Diagnostic Codes 6510 through 6514 are rated according to the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97 (2015). Under the rating formula, a 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97 (2015). 2. Compensable Rating Prior to January 29, 2010 Facts Records show that the Veteran was seen in March 2004 with a four month history of nasal drainage, coughing spells and nasal stuffiness. He was diagnosed as having rhinitis with suspected underlying sinusitis. He was seen again in March 2004 at which time he was noted to have an improved cough that only occurred with post nasal drip. Nasal findings revealed nasal mucous, slight redness and edema. The Veteran was diagnosed as having rhinitis. Later in March 2004, his sinus/respiratory symptoms were found to have largely resolved. He was diagnosed as having acute sinusitis. In July 2004, the Veteran was treated for sinus drainage at night which had been ongoing for three to four weeks and which worsened his cough. He was assessed as having rhinitis and advised to take over the counter nasal saline and Allegra. At a follow up visit in July 2004, the Veteran was found to have nasal edema bilaterally and puffy eyes bilaterally. An outpatient visit record for rhinitis in January 2005 shows that the Veteran had increased nasal mucous and a cough for four weeks. Findings revealed swelling in the bilateral maxillary and frontal areas, slightly tender bilateral maxillary sinuses, and nasal edema bilaterally. The Veteran was diagnosed as having sinusitis. The Veteran reported at a VA examination in May 30, 2006, that he had continued sinus problems since service. He reported having only purulent discharge with upper respiratory infection or sinusitis and denied any nasal injury or surgery. Medications included Astelin nasal spray and Sudafed which helped, but were noted to not be specific treatments for sinusitis. Findings revealed nasal turbinates to be normal in size and color and there was no obstruction of either nasal passage noted. Frontal and maxillary sinuses transilluminated well. Sinus x-rays were negative. The examiner said that it was very difficult to determine whether the Veteran was having recurrent sinus infections, upper respiratory infections, or just allergy problems. He reported that the Veteran's nasal and sinus problems had never caused incapacitation. In August 2006, the Veteran submitted medical information from various sources pertaining to the causes, treatment and symptoms of sinusitis. A May 2007 VA primary care record shows that the Veteran had been prescribed flunisolide "NS" for sinusitis. Some VA outpatient records in 2007 and 2008 contain problem lists that include chronic sinusitis. A VA examination report dated in May 2008 shows that the Veteran reported that he "periodically" requires antibiotic and decongestant treatments. He reported nasal congestion and tenderness of the face during flare ups and had had purulent discharge in the past. He denied any speech impairment or difficulty and reported headaches with or without sinusitis. Examination showed normal nasal mucosa with good air movement through the nostrils. There was some sinus tenderness in the maxillary sinus areas bilaterally, but no allergic, vaso or bacterial rhinitis noted. There was no septal deviation, loss of tissue, or injury affecting the soft palate. The examiner reported that there were no incapacitating episodes in the past year and the Veteran had not missed any work because of sinusitis. Discussion The evidence pertinent to the period prior to January 29, 2010, most approximates a compensable, 10 percent, rating under Code 6514, from the July 2004 date of the grant of service connection. In this case, the Veteran did not have any incapacitating episodes of sinusitis for the years preceding his 2006 and 2008 VA examinations as the corresponding examination reports show. Nonetheless, the evidence shows that he had three to six non-incapacitating episodes per year characterized by headaches, pain and purulent discharge or crusting. The 2006 and 2008 VA examination reports, along with VA medical records from 2006 to 2008, show findings of sinus tenderness, drainage and headaches (with or without sinusitis), but are too vague with respect to the frequency of sinus episodes. In this regard, the Veteran reported at the May 2006 VA examination that his sinus problems were a "nagging problem that bothers him all year long". He reported at the 2008 VA examination that he "can have" nasal congestion as well as facial tenderness and has had purulent discharge "in the past". These reports are inadequate to show whether the Veteran has had 4 to 6 non-incapacitating episodes per year. Nonetheless, greater specificity was provided at the January 2010 VA examination. In this regard, the Veteran reported having sinus problems at least four to five times a year since service. This was followed by the examiner's report that the Veteran had a history of sinusitis with four episodes per year lasting 14 days or greater. He further noted that symptoms during each episode included fever, purulent drainage and sinus pain. The Board finds that the Veteran is competent to report observable symptoms, such as the onset and duration of symptoms and their history, and finds his statements credible. Layno v. Brown, 6 Vet. App. 1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the record as explained above supports a compensable, 10 percent, rating for sinusitis prior to January 29, 2010, it does not support a higher than 10 percent rating. That is, it does not suggest that the Veteran's sinusitis resulted in more than six non-incapacitating episodes per year of sinusitis, as required for the next higher rating of 30 percent. 38 C.F.R. § 4.97, Codes 6510-6514. Accordingly, the Board finds that the Veteran's sinusitis warrants a 10 percent rating for the entire period prior to January 29, 2010. 3. Rating in Excess of 10 percent for Sinusitis from January 29, 2010 Facts At a VA examination in January 2010, the Veteran reported having sinus problems at least four to five times a year since service and he said that it had been continuous for the past eight months requiring several courses of antibiotics. He said he had used different inhalers in the past which had not worked. He also said he had had treatment with prednisone and antibiotics. Noted symptoms during each episode include fever, purulent drainage and sinus pain. Examinations findings at that time revealed no active disease, but tenderness was found as well as mucose edematose and pale. The examiner reported that the Veteran had a history of sinusitis with four episodes per year lasting 14 days or greater. He also noted that the Veteran had one incapacitating episode requiring 4-6 weeks of antibiotic treatment. The Veteran reported at a QTC examination in August 2011 that he had sinus problems six times a year with each episode lasting two weeks. He said the episodes were not incapacitating and were manifested by symptoms that include headaches, purulent discharge, hoarseness, crusting and sores around the nose, and antibiotic treatment. On examination sinusitis was found at the left frontal and maxillary sinuses with tenderness and pale and boggy turbinates and x-ray changes. There was no purulent discharge noted from the nose. A November 2011 private pulmonology treatment note shows that the Veteran continued to have some issues with nasal congestion and was recently seen by an Ear, Nose and Throat specialist who advised him on the use of saline as well as continued use of Flonase. Private treatment records from Randolph Internal Medicine show that the Veteran was seen in December 2013 for a possible sinus infection. He was noted as having nasal discharge that was blood tinged and turbinates that were boggy and erythematous. An oral antibiotic was prescribed. Records in January 2014 show that he was seen two more times due to his sinus issues not being well managed with antibiotic therapy and intranasal steroids. Findings included a hacking cough with clear to green sputum and similarly colored nasal drainage. Sinus tenderness was also noted. Discussion As noted above, the Veteran reported at the QTC examination in August 2011 that he experiences six nonincapacitating episodes of sinusitis a year. This is up from his report at a January 2010 VA examination of experiencing four to five nonincapacitating episodes a year. Although these reports fall just below criteria for a 30 percent rating under Code 6514 requiring more than six nonincapacitating episodes, the Board finds that the Veteran's disability picture is most consistent with a 30 percent rating. 38 C.F.R. § 4.7. This is so after considering that the episodes are shown to be characterized by headache, purulent discharge, crusting and antibiotic treatment, and because of the prolonged nature of some of the infections. In this regard, the Veteran reported at the January 2010 VA examination that his sinus problem had been continuous for eight months with several courses of antibiotics. Similarly, treatment records in December 2013 and January 2014 show the Veteran was seen three times within a 30 day period due to continuous sinus problems. According to this record, the course of antibiotics had to be changed due to the Veteran's sinusitis not being well managed with antibiotic therapy and intranasal steroids. In terms of the frequency and duration of the Veteran's sinusitis episodes, the Board finds that he is competent to report on such matters and finds his statements credible. Layno v. Brown, 6 Vet. App. 1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, for the foregoing reasons, the evidence supports an increased rating to 30 percent from January 29, 2010. 38 C.F.R. § 4.97, Code 6514. A rating in excess of 30 percent is not warranted at any point during the period on appeal. In order to warrant a 50 percent rating, sinusitis must manifest following radical surgery with chronic osteomyelitis, or near constant sinusitis, headaches, pain, tenderness, and discharge following repeated surgery. Here, the evidence does not show that the Veteran has had radical or repeated surgery nor has his sinusitis been near constant. Therefore, the criteria for a higher rating to 50 percent have not been met. 38 C.F.R. § 4.97, Code 6514. C. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted. Extraschedular consideration requires a three-step inquiry. See 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the claimant's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation to determine whether an extraschedular rating is warranted. There is no competent medical evidence of an exceptional or unusual clinical presentation in the record. The Veteran's migraines and sinusitis have been evaluated under the applicable diagnostic codes that have specifically contemplated the level of occupational impairment caused by these disabilities, as detailed above. Code 6514 contemplates incapacitating and non-incapacitating episodes of sinusitis as described by the Veteran and shown in the medical evidence, and Code 8100 contemplates headaches as described by the Veteran and shown in the medical evidence. See 38 C.F.R. §§ 4.97, 4.125a, Codes 6514, 8100. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, the Board finds no symptom or effect resulting from a combination of disabilities that is not contemplated under a Code used to rate any of the service-connected disabilities. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. V. Effective Date Earlier than July 27, 2009, for the Grant of a 20 percent rating for Right Shoulder Disability Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be 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. However, the law provides an exception to this general rule holding that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if VA receives a claim within one year after that date. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). For purposes of this appeal, a claim is defined as 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); 3.155 (2014). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Further, under 38 C.F.R. § 3.157(b)(1) (2014), a report of examination or hospitalization may constitute an informal claim. However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App.501, 504 (2006). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). By way of background, the Veteran has been service connected for recurrent right shoulder dislocation with myofascial pain since the date he filed an initial claim for service connection in July 1990. He was initially assigned a 10 percent rating for this disability. By rating decision in April 2010, the RO increased the rating to 20 percent effective the date he filed a claim for an increased rating, on December 11, 2009. Thereafter, in a statement of the case (SOC) dated in May 2013, the RO assigned an earlier effective date of July 27, 2009, for the 20 percent rating. The RO based this date on a July 27, 2009, notice of disagreement (NOD) that the Veteran filed which the RO construed as a claim for an increased rating for his right shoulder disability. In terms of when the Veteran first met the scheduler criteria for a 20 percent rating for his right shoulder disability, the RO based this on a January 2010 VA examination report which shows that he had limitation of flexion to 86 degrees with pain. The Veteran asserts that the effective date should go back to May 2004 which is when he filed a claim for an increased rating. In this regard, he asserts that in May 2004 he filed an NOD to a heart disability determination, but also requested at that time increased ratings. He contends that this request was overlooked and that the present 20 percent rating should therefore date back to the May 2004 claim. However, contrary to this assertion, the record shows that in June 2006 the RO denied a rating in excess of 10 percent for the Veteran's right shoulder disability and provided the Veteran with notice of the decision in July 2006. The Veteran, in turn, filed a notice of disagreement with the decision in May 2007, and in July 2008 the RO issued him a SOC. However, he did not perfect an appeal of this decision by filing a timely substantive appeal. 38 C.F.R. § 20.200. Accordingly, the lack of a timely substantive appeal with respect to the June 2006 rating decision renders that decision final. 38 C.F.R. § 20.1103. The earliest evidence on file following the July 2008 statement of the case is the Veteran's February 2009 request for an appointment to review his claims file. Also, to the extent that he attempts to revisit the finality of the prior rating decision, such is nothing more than a freestanding claim for an earlier effective date and is prohibited. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board must therefore look to evidence that the RO received after the June 2006 final decision. In so doing, the Board cannot construe any evidence as constituting a claim for an increased rating for the right shoulder disability any earlier than the July 27, 2009 NOD. In this regard, the only documents on file between February 2009 and July 27, 2009 relate to the Veteran's request to review his claims file and/or to obtain copies of records from his claims file. Having established July 27, 2009, as the date of claim, the Veteran could still potentially qualify for increased compensation benefits up to one-year prior to the date of claim. 38 C.F.R. § 3.400(o)(2). However, the objective evidence of record does not support an earlier effective date on this basis. Under 38 C.F.R. § 4.71, Code 5201, a 20 percent rating is warranted for limitation of motion of the major extremity to shoulder level and a 30 percent rating for limitation of motion midway between the side and shoulder level. A maximum 40 percent rating for limitation of motion is warranted when the shoulder limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Code 5201. Here, the Veteran's right shoulder disability does not meet the criteria for a 20 percent rating until a January 2010 VA examination. It was at this examination that he demonstrated limitation of flexion to 86 degrees with pain. Pertinent evidence for the year prior to July 27, 2009, include a May 2008 VA joint examination report showing forward elevation of the right shoulder to 180 degrees, abduction to 170 degrees, internal rotation to 90 degrees and external rotation to 90 degrees with pain on motion. There was no fatigue, weakness, or lack of endurance and repetition motion did not increase or decrease the loss of range of motion. The evidence also includes a June 2009 report from Dr. Hill who stated that the Veteran had reached significant medical impairment in terms of his chronic musculoskeletal pain and could work at a job that was sedentary and flexible in regard to frequent short beaks in part due to his pain level. He did not provide any physical findings, to include range of motion findings in this report. Thus, the evidence does not show that the Veteran's service-connected right shoulder disability was manifested by symptomatology more nearly approximately a compensable, 20 percent, rating during the one year period prior to his July 27, 2009, claim. Thus, the provisions of 38 C.F.R. § 3.400(o)(2) cannot serve as a basis for an earlier effective date and the claim is denied. In sum, given the facts above, the Board concludes that a date earlier than July 27, 2009, may not be assigned for the award of a 20 percent rating for the Veteran's right shoulder disability. The June 2006 rating decision became final when the Veteran failed to perfect an appeal, and the Veteran submitted no new claim for increase until July 27, 2009. In view of the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400, an effective date earlier than the date of receipt of the new claim may not be assigned. Accordingly, because July 27, 2009, is the date of claim, the earliest possible effective date has been set for the assignment of the 20 percent disability rating for urticaria. There is no evidentiary basis to assign an earlier effective date for the grant of an increased rating for the right shoulder disability. See 38 C.F.R. § 3.400. Consequently, an earlier effective date is not warranted, and the appeal must be denied ORDER The application to reopen the claim of service connection for fibromyalgia is granted. The appeal to revise the October 1991, June 1992, September 1996 and June 2006 rating decisions on the basis of CUE is denied. A compensable rating of 10 percent for sinusitis for the period prior to January 29, 2010, is granted. Entitlement to an evaluation of 30 percent for sinusitis, and no higher, beginning January 29, 2010, is granted. An increased rating of 50 percent for migraine headaches from July 27, 2009, is granted. An effective date earlier than July 27, 1990, for the grant of a 20 percent rating for a right shoulder disability, presently characterized as right shoulder impingement syndrome, status post arthroscopic surgery with degenerative arthritis is denied. REMAND 1. Service Connection for Fibromyalgia Now that the claim for service connection for fibromyalgia is reopened, additional medical development is needed before a fully informed decision can be made. The evidence of record with respect to this issue to date, to include an August 2015 Veterans Health Administration medical opinion and a more recent VA outpatient record in November 2015 pertains to the Veteran's claim on a direct basis. That is, whether the Veteran's fibromyalgia is manifested in or is otherwise related to service, to include the question of whether it is a disability separate and distinct from his service connected right shoulder disability. However, in written argument in November 2015, the Veteran's representative raised the issue of aggravation. That is, he asserted that further development was necessary regarding the Veteran's assertion that his service-connected right shoulder disability aggravates his fibromyalgia. In this regard, the law provides that where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Here, the Board agrees with the Veteran's representative that additional development is warranted regarding this theory of entitlement. Accordingly, the Veteran should be afforded a VA examination for the purpose of obtaining a medical opinion regarding the likelihood that the Veteran's service-connected right shoulder disability has made chronically worse his diagnosed fibromyalgia. See Allen, supra; 38 C.F.R. § 3.310. 2. Acquired Psychiatric Disorder The record shows that in August 2014 the Veteran filed a NOD to a May 2014 notice letter that informed him, in part, that the 30 percent rating for his service connected acquired psychiatric disorder was being increased to 50 percent, effective July 14, 2011. The Veteran asserted in the NOD that a significant amount of his symptoms and conditions existed prior to 2011 and dated back to 2004. The Board construes this assertion as a NOD to the date of the assigned 50 percent rating. Accordingly, as no Statement of the Case has been issued in this matter, the Board must remand this issue for proper development, to include issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 3. Rating for Right Shoulder Disability Given that recent private treatment records show instability of the right shoulder, and the shoulder disability has not been evaluated for a number of years, the Board finds that an examination is necessary to determine the current level of severity. See Caffrey v. Brown, 6 Vet. App. 377 (1994). 4. TDIU The Board finds that the Veteran's claim for a TDIU is inextricably intertwined with the issue of entitlement to higher ratings for the right shoulder. Therefore, adjudication of the TDIU claim would be premature at this juncture and it is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate action, including issuance of a Statement of the Case, on the appeal initiated by the Veteran regarding entitlement to an effective date earlier than July 14, 2011, for the assignment of a 50 percent rating for his service connected acquired psychiatric disorder. The Veteran should be clearly advised of the need to file a timely Substantive Appeal as to this matter if he wishes to complete an appeal of this determination. Then, only if the appeal is timely perfected, the issue is to be returned to the Board for further appellate consideration, if otherwise in order. 2. Copies of updated treatment records should be obtained and added to the claims folder with respect to the claimed disabilities for fibromyalgia and right shoulder disability. 3. Following completion of the development in instructions 2, schedule the Veteran for an examination by an appropriate physician in order to address the Veteran's claim of entitlement to service connection for fibromyalgia on a secondary basis; i.e. whether the Veteran's fibromyalgia has been permanently worsened by his service-connected right shoulder disability. The Veteran's electronic record must be provided to the examiner for review of pertinent documents therein. The examiner should elicit from the Veteran and record a complete clinical history referable to his service-connected right shoulder disability and fibromyalgia. The examiner is requested to respond to the following questions: (a) Whether it is at least as likely as not that the Veteran's fibromyalgia was aggravated by (permanently worsened) the service-connected right shoulder disability. (b) If aggravation of the fibromyalgia by the service-connected right shoulder disability is shown, the examiner should objectively quantify the degree of aggravation beyond the level of impairment had no aggravation occurred. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. Following completion of the development in instructions 2, schedule the Veteran for a VA joints examination to determine the current severity of his right shoulder disability. The Veteran's electronic record must be provided to the examiner for review of pertinent documents therein. All necessary tests should be performed and the results reported. 5. After completing all indicated development, the AOJ should readjudicate the claims remaining on appeal, to include entitlement to a TDIU, in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs