Citation Nr: 1631729 Decision Date: 08/10/16 Archive Date: 08/23/16 DOCKET NO. 09-45 647 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for service-connected prostate cancer, to include the propriety of the reduced evaluation from 100 percent to 20 percent, effective October 1, 2010. 2. Entitlement to a compensable evaluation for service-connected erectile dysfunction. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for multiple sclerosis. 5. Entitlement to individual unemployability (TDIU). 6. Entitlement to service connection for a major depressive disorder. REPRESENTATION Veteran represented by: Christopher Loiacono ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2007, July 2010, August 2011, June 2012, and May 2015 RO determinations. The Board notes the Veteran's prostate cancer claim originally stemmed from the RO's February 2010 proposal to reduce the evaluation assigned to this service-connected disability. The Statement of the Case issued in May 2011 properly addressed the issue as one involving a reduction in rating. After the reduction issue was appealed in June 2011, subsequent supplemental statements of the case have characterized the issue as a claim for an increase, as opposed to a claim to restore a previously reduced evaluation. As will be discussed below, staged ratings have also been assigned over the years, and the Veteran has submitted statements indicating that he disagreed with these staged ratings. In light of the Veteran's statements and the way that this issue has been characterized throughout the appeals process, the Board will characterize the issue as shown above in order to include both the Veteran's claim for restoration of the previously assigned 20 percent evaluation, effective October 1, 2010, and a claim for an increased rating since that time. In October 2015, the Veteran withdrew his prior request for a hearing. As such, the Board may proceed to adjudicate the claims as done below. The Veteran submitted additional evidence after the most recent supplemental statement of the case (SSOC) was issued. However, as the Veteran indicated that he wished to waive RO jurisdiction over the newly submitted evidence, the Board will proceed to adjudicate the claims as done below with no prejudice to the Veteran. The issues of entitlement to service connection for a major depressive disorder and for sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period of October 1, 2010, to May 31, 2011, the Veteran's service-connected prostate cancer did not require the use of pads for leakage, and manifested with a daytime voiding interval between 3 and 4 hours and a nighttime awakening to void 2 to 3 times. 2. For the period of June 1, 2011, to May 5, 2014, the Veteran's service-connected prostate cancer manifested with nocturia 2 to 5 times per night. 3. For the period of May 6, 2014, to, December 20, 2015, the Veteran's service-connected prostate cancer manifested with urine leakage requiring absorbent materials which must be changed less than twice per day, daytime voiding interval between 1 and 2 hours, and a nighttime awakening to void 3 to 4 times. 4. For the period of December 21, 2015, to the present, the Veteran's service-connected prostate cancer manifested with urine leakage that requires the changing of absorbent materials more than 4 times per day. 5. The Veteran's service-connected erectile dysfunction is manifested by loss of use of erectile power without penis deformity. 6. Multiple sclerosis is not shown by the evidence of record to have manifested within 7 years of discharge from service, nor is multiple sclerosis shown by the most probative evidence of record to be etiologically related to a disease, injury, or event in service. 7. The Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The reduction of the rating assigned to the Veteran's service-connected prostate cancer from 100 percent to 20 percent, effective October 1, 2010, was proper. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.105(e), 3.321(b)(1), 4.3, 4.7, 4.115b, Diagnostic Code 7528 (2015). 2. For the period of October 1, 2010, to May 31, 2011, the criteria for a disability rating in excess of 20 percent for service-connected prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.159, 3.321, 4.115a, 4.115b, Diagnostic Code 7528 (2015). 3. For the period of June 1, 2011, to May 5, 2014, the criteria for a disability rating of 40 percent, and no higher, for service-connected prostate cancer have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.159, 3.321, 4.115a, 4.115b, Diagnostic Code 7528 (2015). 4. For the period of May 6, 2014, to, December 20, 2015, the criteria for a disability rating in excess of 20 percent for service-connected prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.159, 3.321, 4.115a, 4.115b, Diagnostic Code 7528 (2015). 5. For the period of December 21, 2015, to the present, the criteria for a disability rating of 60 percent, and no higher, for service-connected prostate cancer have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.159, 3.321, 4.115a, 4.115b, Diagnostic Code 7528 (2015). 6. The criteria for a compensable disability rating for service-connected erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2015 & Supp. 2015); 38 C.F.R. §§ 3.159, 3.321, 4.115b, Diagnostic Code 7522 (2015). 7. Multiple sclerosis was not incurred in or aggravated by active service, and may not be presumed to have been caused by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). 8. The criteria for the assignment of TDIU due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155 , 5107, 5110 (West 2014); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2015); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA letters dated in June 2007, December 2010, April 2011, and November 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2015 & Supp. 2015); 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, these letters described how appropriate disability ratings and effective dates were assigned. The Board notes that rating reductions have their own special notice requirements, which will be discussed below. See 38 C.F.R. § 3.105. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). The Veteran was provided pertinent VA examinations relating to his prostate cancer and erectile dysfunction in January 2010, December 2011, and May 2014. In March 2016, the Veteran submitted a private medical record documenting the current severity of his disabilities. The Board finds these examination reports and the recently submitted private medical record to be adequate upon which to base a decision with regard to the Veteran's reduction, increased rating, and unemployability claims. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the Veteran's service connection claim for multiple sclerosis, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The requirement that the evidence of record "indicates" that a disability, or persistent or recurrent symptoms of a disability, "may be associated" with the Veteran's service establishes "a low threshold." McLendon, 20 Vet. App. at 83. As will be discussed in further detail below, the Board notes that there is no competent evidence linking the Veteran's multiple sclerosis to service, and no consistent, credible lay evidence of continuity of symptomatology suggesting an association to service. The Board is aware that Charles v. Principi, 16 Vet. App. 370 (2002), requires VA to obtain a medical nexus opinion where the claimant has been diagnosed as having tinnitus and has proffered competent lay evidence of continuous symptoms of the disorder since his discharge from service. Here, however, the Veteran's service treatment records contain no evidence of treatment for or complaints of multiple sclerosis, nor has the Veteran proffered credible, consistent lay statements indicating that he has had continuous symptoms of this disability since his active duty. Thus, as there is no competent evidence suggesting an association between his current disability and service, and no credible, consistent lay evidence as to the presence of symptomatology in service or the continuity of symptoms since service, the Board finds that the third prong of McLendon is not met, and that VA opinion is not warranted. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2015). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As multiple sclerosis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the Veteran's multiple sclerosis claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2015). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 1. Entitlement to an increased evaluation for service-connected prostate cancer, to include the propriety of the reduced evaluation from 100 percent to 20 percent, effective October 1, 2010. In an August 2009 rating decision, the RO granted service connection for prostate cancer and assigned a 100 percent evaluation, effective June 23, 2009, under Diagnostic Code 7528. In a February 2010 rating decision, the RO proposed to decrease the 100 percent evaluation to 20 percent. In a July 2010 rating decision, the RO decreased the 100 percent evaluation assigned to the Veteran's prostate cancer to 20 percent, effective October 1, 2010. In a June 2014 SSOC, the RO assigned a 40 percent evaluation for the period of December 5, 2011, to May 5, 2014, and assigned a 20 percent evaluation, effective May 6, 2014. The Veteran asserts that reduction of this rating was improper. He has also indicated throughout the course of this appeal that he disagrees with the newly assigned ratings. VA evaluates rating reductions based upon the time the rating has been in effect. In the present case, the 100 percent rating was effective between June 23, 2009, to September 30, 2010. For disability ratings in effect for less than 5 years, adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1 , 4.2, 4.10, 4.13; see also Brown v. Brown , 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Generally, in considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). However, post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Care must be taken to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13 (2015); see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Pursuant to the rating schedule, malignant neoplasms of the genitourinary system are evaluated as 100 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2015). Note to this provision indicates that following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent will continue with a mandatory VA examination at the expiration of 6 months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. The Board has reviewed all pertinent medical evidence. At a January 2010 VA examination, the Veteran reported urinating 4-5 times per day at 3-4 hour intervals and urinating 2-3 times per night at 2-3 hour intervals. He reported a weak stream and leakage without requiring the use of pads or an appliance. In a June 2011 private medical record from Community Cancer Center, the Veteran reported frequent urgency and occasional incontinence. He reported nocturia 2 to 5 times per night. In December 2011, the Veteran underwent a VA examination, at which he reported urine leakage that requires absorbent material which must be changed less than 2 times per day. The Veteran also reported daytime voiding interval between 1 and 2 hours and nighttime awakening to void 5 or more times. The Veteran reported hesitancy, slow stream, weak stream, and decreased force of stream, none of which were marked. In a July 2012 private medical record from University Hospitals, the Veteran reported urinary frequency and incontinence with leakage. In a July 2013 private medical record from University Hospitals, the Veteran reported a sudden urgency and leakage but denied any new problems since the last visit. At a May 2014 VA examination, the Veteran reported voiding dysfunction that required absorbent material which must be changed less than twice per day but did not require the use of an appliance. His voiding dysfunction resulted in daytime voiding interval between 1 and 2 hours and a nighttime awakening to void 3 to 4 times. The Veteran also reported hesitancy, slow stream, weak stream, and decreased force of stream, none of which were marked. The Veteran had no obstructive symptoms. In a June 2014 private medical record from University Hospitals, the Veteran reported some urinary urgency and frequency with some postvoid dribbling which had been stable and managed with generally one depends per day. In a March 2016 Prostate Cancer Impairment Questionnaire signed by a private physician, the Veteran's prostate cancer was noted as being in remission. The Veteran reported urine leakage that required the changing of absorbent materials more than 4 times per day. The voiding dysfunction did not cause urinary frequency, require the use of an appliance, or cause signs or symptoms of obstructed voiding. It was noted that the Veteran did not have a history of recurrent urinary tract or kidney infections. The physician opined that the earliest date that the description of symptoms and limitation in this questionnaire applied was November 2008. The Board notes that, where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e) (2015). The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Id. The beneficiary will also be informed that he or she will have an opportunity for a predetermination hearing. 38 C.F.R. § 3.105(i) (2015). On review, it appears that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) and the Veteran does not contend otherwise. The Veteran was notified of the proposed reduction and was given an opportunity to submit additional evidence and/or request a hearing. The reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e) (2015). Having concluded that the RO correctly followed the necessary procedures to reduce the 100 percent rating, the Board must consider whether a reduction from 100 percent to 20 percent was correct based on the evidence of record. In this case, there is no evidence of renal dysfunction and the Veteran's prostate cancer is appropriately rated as voiding dysfunction. Voiding dysfunction may be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a (2015). The Board notes that medical records do not show any evidence of obstructed voiding. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence is rated as follows: requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day (60 percent); requiring the wearing of absorbent materials which must be changed 2 to 4 times per day (40 percent); and requiring the wearing of absorbent materials which must be changed less than 2 times per day (20 percent). Id. Urinary frequency is rated as follows: daytime voiding interval less than one hour, or; awakening to void five or more times per night (40 percent); daytime voiding interval between one and two hours, or; awakening to void three to four times per night (20 percent); and daytime voiding interval between two and three hours, or; awakening to void two times per night (10 percent). Id. In evaluating the severity of the residuals of prostate cancer, the Board notes that the Veteran is competent to report his frequency of urination. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (appellant competent to testify regarding symptoms capable of lay observation). In this regard, the Board notes that the July 2010 rating decision reduced the evaluation to 20 percent as of effective October 1, 2010, based on the results from the January 2010 VA examination. As noted above, a 20 percent evaluation is warranted for awakening to void three to four times per night. At the January 2010 VA examination, the Veteran reported that he urinated 4-5 times per day at 3-4 hour intervals and urinated 2-3 times per night at 2-3 hour intervals. He denied the use of pads for urine leakage. As there is no evidence from this time period documenting reports of a daytime voiding interval less than one hour, awakening to void five or more times per night, or wearing absorbent materials, the Board finds the reduction from 100 percent to 20 percent, effective October 1, 2010, for prostate cancer to be proper. The Board has also reviewed all other relevant evidence of record. However, there is no other objective evidence of record demonstrating that the Veteran's service-connected prostate cancer met the criteria for an evaluation in excess of 20 percent, as of October 1, 2010. The Board notes that post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. In this regard, the Board has reviewed all evidence accumulated in the claims file. As will be discussed below, the Board finds that symptoms related to the Veteran's prostate cancer did subsequently increase in severity over the years since the 2010 reduction. However, as the objective medical evidence of record reflects that the Veteran's service-connected disability did not meet the criteria for an evaluation in excess of 20 percent as of October 1, 2010, or for some time thereafter, his evaluation was properly reduced and should not restored. Turning to the issue of an increased rating throughout the subsequent period of time on appeal, the Board notes that the Veteran's prostate cancer has been assigned a 20 percent evaluation, effective October 1, 2010; a 40 percent evaluation, effective December 5, 2011; and a 20 percent evaluation, effective May 6, 2014. For the period of October 1, 2010, to May 31, 2011, there is no evidence of record reflecting that the Veteran's prostate cancer required absorbent materials which must be changed 2 to 4 times per day, or manifested with daytime voiding interval less than one hour or awakening to void five or more times per night. As such, an evaluation in excess of 20 percent is not warranted for the period of October 1, 2010, to May 31, 2011. The Board notes that the Veteran reported nocturia 2 to 5 times per night in a June 2011 private medical record from Community Cancer Center. As such, the Board finds that the Veteran's prostate cancer warrants an evaluation of 40 percent beginning June 1, 2011, on the basis of awaking to void 5 or more time per night. To this extent, the claim for an increase is granted, as the RO had assigned the 40 percent rating from December 5, 2011. However, with regard to the period from June 1, 2011, to the May 5, 2014, there is no evidence reflecting that the Veteran's prostate cancer required the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. At the December 2011 VA examination, the reported urine leakage that required absorbent material which must be changed less than 2 times per day. As such, an evaluation in excess of 40 percent is not warranted for the period of June 1, 2011, to May 5, 2014. With regard to the period from May 6, 2014, to the present, the Veteran reported at the May 6, 2014, VA examination that his voiding dysfunction required absorbent material which must be changed less than twice per day and resulted in daytime voiding interval between 1 and 2 hours and a nighttime awakening to void 3 to 4 times. In a June 2014 private medical record from University Hospitals, the Veteran reported voiding dysfunction requiring one depends per day. This medical evidence does not reflect that the Veteran's prostate cancer met the criteria for an evaluation in excess of 20 percent under the rating criteria for urinary frequency or urine leakage. However, in a statement from the Veteran received on December 21, 2015, he indicated that he wore absorbent materials due to his prostate cancer that he had to change 7 to 8 times per day. In a March 2016 Prostate Cancer Impairment Questionnaire, the Veteran reported urine leakage that required the changing of absorbent materials more than 4 times per day. These recent assertions regarding the use of absorbent materials meet the criteria for a 60 percent evaluation under the urine leakage criteria. As such, the Board finds that the Veteran's prostate cancer should be assigned a 60 percent evaluation, effective December 21, 2015, the date of the Veteran's statement. There is no evidence reflecting that the Veteran's prostate cancer met the criteria for a 60 percent evaluation prior to December 21, 2015. The May 2014 VA examination report and June 2014 private medical record from University Hospitals specifically reflect that the Veteran's prostate cancer did not meet this criteria. As such, a rating in excess of 20 percent for the period of May 6, 2014, to December 20, 2015, is not warranted. A 60 percent is the maximum evaluation allowed under the rating criteria for voiding dysfunction. As such, a rating in excess of 60 percent for the period of December 21, 2015, to the present may not be assigned under this criteria. Additionally, the Board notes that the private physician who signed the March 2016 Prostate Cancer Impairment Questionnaire opined that the earliest date that the description of symptoms and limitation in this questionnaire applied was November 2008. However, the Board finds this opinion regarding the onset date of these symptoms not credible, as the Veteran's previous symptoms are clearly documented in all of the prior medical evidence of record discussed above, to specifically include the January 2010, December 2011, and May 2014 VA examination reports. The Board has considered the application of alternative diagnostic codes in evaluating the symptoms associated with the Veteran's disability. However, the Board finds that the evaluation of the Veteran's disability under the rating criteria for voiding dysfunction is the most appropriate method of evaluating the Veteran, as well as the most beneficial to the Veteran. In conclusion, in review of all relevant evidence of record, the Board finds that entitlement to restoration of the prior 100 percent evaluation for prostate cancer is not warranted as of October 1, 2010, and the July 2010 rating decision that reduced the evaluation for the prostate cancer from 100 percent to 20 percent, as of October 1, 2010, was proper. Additionally, the Board finds that the 20 percent evaluation assigned to the Veteran's prostate cancer should be increased to 40 percent, and no higher, effective June 1, 2011, and no earlier. The evaluation should be increased to 60 percent, and no higher, December 21, 2015, and no earlier. An evaluation in excess of 20 percent is not warranted for the period of October 1, 2010, to May 31, 2011, and for the period of May 6, 2014, to December 20, 2015. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and applied appropriately. Hart, supra. 2. Entitlement to a compensable evaluation for service-connected erectile dysfunction. In a June 2012 rating decision, the RO continued a 0 percent evaluation, for service-connected erectile dysfunction under Diagnostic Code 7522. The Veteran is seeking a higher evaluation. Diagnostic Code 7522 provides for a single 20 percent rating where the evidence shows deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115(b), Diagnostic Code 7522 (2015). A footnote to this diagnostic code indicates that claims for penis deformities should be reviewed for entitlement to special monthly compensation (SMC ). See 38 U.S.C.A. §§ 1114(k) (West 2002); 38 C.F.R. § 3.350(k) (2015). SMC is payable for anatomical loss or loss of use of a creative organ. Id. The Board has also reviewed all VA and private medical evidence of record, which support a diagnosis of erectile dysfunction. In this case, there is no indication in the medical evidence of record, nor has the Veteran asserted, that he has a deformity of the penis. As such, an increased rating is not warranted under Diagnostic Code 7522. With regard to establishing entitlement to SMC based upon anatomical loss or loss of use of a creative organ, the Board notes that entitlement to SMC based upon loss of use of a creative organ has already been granted, effective January 11, 2010. See 38 U.S.C.A. §§ 1114(k) (West 2002); 38 C.F.R. § 3.350(k) (2015). The Board has reviewed the remaining diagnostic codes relating to disabilities or diseases of the genitourinary system, but finds that they are inapplicable in this case. See 38 C.F.R. § 4.115a, 4.115b, Diagnostic Codes 7500-7542 (2015). The Board concludes that the preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Hart, supra. 3. Entitlement to service connection for multiple sclerosis. The Veteran is seeking entitlement to service connection for multiple sclerosis. In a November 2009 statement, the Veteran asserted that he began experiencing early onset symptoms of multiple sclerosis in July 1975. A review of the service treatment records reveals no complaints, treatment, or diagnoses of multiple sclerosis. The Veteran has submitted 2009 statements from his ex-wife and sister-in-law recalling him experiencing numbing and paralysis of the face as early as 1974 or 1975. An October 1995 report from the Mellen Center at the Cleveland Clinic Foundation indicated that the Veteran's first symptoms began 15 years ago and consisted of left facial numbness. In 1986, he had a "veil" over his left eye. In July 1995, he had double vision and, in August 1995, he had new onset of seizures. A March 2008 private treatment record from Neurology Center, Inc., noted a past medical history of multiple sclerosis beginning in 1995. A November 2009 private medical record from Neurology Center Inc. noted the Veteran's reported history of facial numbness since 1974, double vision in 1980, and a diagnosis in 1989. With regard to granting service connection on a direct basis, there is no medical evidence of record reflecting that the Veteran had multiple sclerosis in service and no medical evidence of record relating a current diagnosis of multiple sclerosis directly to service. The Board notes the Veteran's assertions that his multiple sclerosis is due to his military service. Here, the Veteran's complaints as to duration of symptoms are certainly capable of lay observation. However, the Board finds that the cause of his currently diagnosed multiple sclerosis is not capable of lay observation, as the Veteran does not have training in neurological diseases. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his multiple sclerosis and his service exists. Additionally, the Board notes that, pursuant to 38 C.F.R. § 3.307(a) , a chronic disease listed in §3.309(a) will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. To qualify for this presumption, multiple sclerosis must have become manifest to a degree of 10 percent or more within 7 years from the date of separation from service. 38 C.F.R. §§ 3.307(a) , 3.309(a) (2015). The Board notes that there is no medical evidence of record reflecting that the Veteran demonstrated multiple sclerosis to a compensable degree within 7 years of discharge from active duty in July 1968. Specifically, the claims file contains no medical evidence prior to 1995 demonstrating complaints, treatment, or a diagnosis of multiple sclerosis. The Board acknowledges that the Veteran has asserted that he developed symptoms of multiple sclerosis within 7 years of his discharge from service. Specifically, a November 2009 private medical record from Neurology Center Inc. noted the Veteran's reported history of facial numbness since 1974. However, this report is contradicted by more contemporaneous medical evidence. Specifically, in the October 1995 private medical record from the Mellen Center at the Cleveland Clinic Foundation, the Veteran reported that his first symptoms began 15 years ago in 1980 and consisted of left facial numbness. Moreover, in a September 2006 private medical record from Neurology Center, Inc., the Veteran was noted as having a past medical history including multiple sclerosis, as of 1995. Essentially, the evidence reflects that the Veteran did not indicate that his multiple sclerosis began in 1974 until after his filed his claim for benefits in April 2007. Of note, the Veteran specifically indicated on his April 2007 claim that his disability began in November 1995 and it was only after the claim was initially denied that he began to report symptoms had begun in the 1970s. Considering the inconsistent statements he has made, and the fact that statements made before filing a compensation claim are inherently more reliable, the Board finds there is no persuasive evidence that the Veteran experienced symptoms of multiple sclerosis within the presumptive period. In short, there is no medical evidence reflecting that the Veteran's multiple sclerosis had an onset within 7 years of discharge from active duty. The Board finds the assertions from the Veteran, his ex-wife, and ex-sister-in-law that the symptoms related to his multiple sclerosis began in 1974 or 1975 are not credible, in light of the fact that these assertions are inconsistent with the Veteran's previous reports of his multiple sclerosis beginning in 1980 and in 1995. The Board finds that the contemporaneous records are more reliable than current unsupported lay assertions made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). As such, service connection for multiple sclerosis cannot be granted on a presumptive basis. With regard to the issue of continuity of symptomatology for his multiple sclerosis under 38 C.F.R. § 3.303(b), the Board finds that the Veteran has not reported a continuity of symptomatology for his multiple sclerosis since his active duty service and, as already discussed, the Board finds the Veteran's reports of a continuity of symptomatology since 1974 not credible. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for multiple sclerosis, and the benefit-of-the-doubt rule is not for application. 4. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2015). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b) (2015). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). The Veteran submitted an Application for Increased Compensation Based on Unemployability on January 13, 2012. His only service-connected disabilities are prostate cancer and erectile dysfunction. In light of the decision herein, for the period of time on appeal from prior to December 20, 2015, neither the Veteran's service-connected prostate cancer nor his service-connected erectile dysfunction were rated at 60 percent, and these disabilities did not combine to a 70 percent rating or more. Therefore, the Veteran's service-connected disabilities did not meet the percentage rating standards for TDIU for the period of time on appeal prior to December 20, 2015. 38 C.F.R. § 4.16(a) (2015). Regardless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to TDIU on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b) for this period of time. See Bowling, 15 Vet. App. at 6. Effective December 21, 2015, based on the grant herein, the Veteran is in receipt of a 60 percent evaluation for prostate cancer, and a 0 percent rating for erectile dysfunction. As such, the Veteran's service-connected disabilities meet the percentage rating standards for TDIU as of December 21, 2015. 38 C.F.R. § 4.16(a) (2015). However, for the Veteran to prevail on a claim for entitlement to TDIU, the evidence must show that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. Importantly, disability ratings are based on the average impairment in earning capacity resulting from the disability. 38 U.S.C.A. § 1155; see also 38 C.F.R. § 4.1. For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect circumstances which place that Veteran's case in a different category than other Veterans with an equal rating of disability. Van Hoose, 4 Vet. App at 363. In this regard, the Board has considered all pertinent evidence of record. A December 2011 VA examiner specifically noted that the Veteran's prostate cancer did not impact his ability to work. The Veteran indicated on his January 2012 Application for Increased Compensation Based on Unemployability that he last worked full time in June 2006 and that this employment involved a forklift. He provided no other details about his employment history. He reported two years of high school as the extent of his education, with no additional training. He reported an inability to stand for long periods of time, with pain in the legs and knees. In response to the question which disabilities affected his ability to work, he listed prostate cancer, MS, and sleep apnea. However, his only service-connected disability is the prostate cancer. There is no indication in the medical evidence that this disability results in any leg pain or limitations on standing, which were the only limitations the Veteran reported. A May 2014 VA examiner specifically noted that the Veteran's prostate cancer did not impact his ability to work. The examiner determined that the Veteran's prostate cancer and its residuals would have no effects on physical or sedentary employment. In a March 2016 Prostate Cancer Impairment Questionnaire signed by a private physician, the Veteran reported that he was retired. The physician opined that the Veteran would not be capable of performing gainful employment with the symptoms and limitations stemming from his prostate cancer. The basis provided for this conclusion was that the Veteran was retired. With regard specifically to the Veteran's erectile dysfunction, the Board finds that there is no indication in the evidence of record that this disability has affected his employability in any way. The Veteran has never asserted that his erectile dysfunction affects his employability, and there is no medical evidence suggesting such. With regard to the Veteran's prostate cancer, the Board recognizes that this disability could potentially have some impact on the Veteran's ability to maintain employment. For example, the Veteran's service-connected prostate cancer results in urinary symptoms that could require frequent restroom breaks throughout the day. However, the Board finds no evidence of record for the entire period of time on appeal detailing how the Veteran's service-connected prostate cancer would render him unemployable. As noted above, the private physician stated in the March 2016 Prostate Cancer Impairment Questionnaire that the Veteran would not be capable of performing gainful employment with the symptoms and limitations stemming from his prostate cancer. However, the basis provided for this conclusion was simply that the Veteran was retired. The physician gave no details as to how the Veteran's prostate cancer would prevent him from maintaining employment. The fact that the Veteran is retired does not answer the question of whether he is capable of being employed. Without a supporting rationale, the Board does not find this opinion probative with regard to the Veteran's employability. Additionally, there is no other medical evidence of record reflecting that the Veteran's prostate cancer would prevent him from maintaining employment at any point during the period of time on appeal. A December 2011 and a May 2014 VA examiner specifically noted that the Veteran's prostate cancer did not impact his ability to work. The May 2014 VA examiner determined that the Veteran's prostate cancer and its residuals would have no effects on physical or sedentary employment. The Veteran himself has not specified how his prostate cancer renders him unemployable. On his January 2012 Application for Increased Compensation Based on Unemployability, the Veteran indicated that he is not able to maintain employment due to his prostate cancer, multiple sclerosis, and sleep apnea. He further referenced an inability to stand for long periods and experiencing bad pain in the legs and knees. He did not indicate, however, that either of these symptoms are due to his service-connected prostate cancer or erectile dysfunction. As the Veteran is not service connected for sleep apnea or multiple sclerosis, these disabilities may not be considered in determining the Veteran's unemployability for VA benefit purposes. Therefore, upon review of the claims file, the Board finds that the preponderance of the evidence of record simply does not reflect that the Veteran's service-connected disabilities prevent him from maintaining work consistent with his past education and employment at any point during the period of time on appeal. The Board notes that the percentage ratings in the rating schedule "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. The assigned ratings represent the best estimate of the impairment to earning capacity caused by the Veteran's prostate cancer and erectile dysfunction. The greater weight of the evidence is against finding that the Veteran's service-connected disabilities cause greater occupational impairment than represented by his combined schedular rating for any period of time on appeal. The Board also cannot take the Veteran's age into consideration. See 38 C.F.R. § 4.19 ("... unemployability, in service-connected claims, associated with advancing age..., may not be used as a basis for a total disability rating."). While his age may make it difficult to actually find employment, the Board may not give, and has not given, any consideration to his age in determining whether he meets the criteria for TDIU. The Board finds that the symptoms of the Veteran's service-connected disabilities are not of sufficient severity to produce unemployability as contemplated by the relevant regulations during any part of the period on appeal. The evidence is not in equipoise and, therefore, the Veteran is not entitled to the benefit of the doubt on this issue. Gilbert, 1 Vet. App. at 53-56 . 5. Extraschedular Ratings Finally, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The first of the three elements of an extraschedular rating under § 3.321(b)(1) is a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Thun, 22 Vet.App. at 115. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id. In this case, the record reflects that the manifestations of the Veteran's service-connected disabilities are contemplated by the schedular criteria of the ratings currently assigned. See Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014) There is no indication from the evidence of record that the Veteran has had frequent hospitalizations or has even received frequent emergency treatment for these service-connected disabilities. There is nothing unusual or exceptional about the symptoms he has due to these conditions. The Veteran's service-connected disabilities on appeal are manifested primarily by complaints of erectile dysfunction and urinary leakage. These complaints, and their resulting impairment, are contemplated by the rating schedule, and disability ratings are based on the overall severity and frequency of the disability, to include subjective complaints. Additionally, there is no indication that the average industrial impairment from the Veteran's disabilities would be to such a degree as to warrant the assignment of higher ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Thun, id. The Board has considered that, according to Johnson, a Veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities are not adequately captured by the schedular ratings for the service-connected disabilities. However, in this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication 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. As such, for purposes of this determination, further consideration need not be given at this time with regard to referral for extra-schedular consideration. ORDER Reduction from 100 percent to 20 percent for service-connected prostate cancer, effective October 1, 2010, was proper, and restoration of the prior rating is denied. For the period of October 1, 2010, to May 31, 2011, entitlement to an evaluation in excess of 20 percent for service-connected prostate cancer is denied. For the period of June 1, 2011, to May 5, 2014, entitlement to a 40 percent rating, and no higher, for service-connected prostate cancer is granted. For the period of May 6, 2014, to, December 20, 2015, entitlement to an evaluation in excess of 20 percent for service-connected prostate cancer is denied. For the period of December 21, 2015, to the present, entitlement to a 60 percent rating, and no higher, for service-connected prostate cancer is granted. Entitlement to a compensable evaluation for service-connected erectile dysfunction is denied. Entitlement to service connection for multiple sclerosis is denied. Entitlement to individual unemployability is denied. REMAND In July 2015, the Veteran submitted a notice of disagreement (NOD) with the May 2015 rating decision denying service connection for a major depressive disorder. Since that time, he has not been afforded a statement of the case (SOC) addressing this issue. Therefore, this claim is remanded to allow the RO to provide the Veteran with an appropriate SOC on the issue of entitlement to service connection for a major depressive disorder. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. With regard to his claim for service connection for sleep apnea, the Veteran contends that his current sleep apnea is related in-service exposure to herbicides. A review of the service treatment records reveals no complaints, treatment, or diagnoses of sleep apnea or a sleep disorder of any kind. However, the Veteran's DD-214 Form reflects that he served in the Republic of Vietnam for 1 year during his active duty service. As such, in-service exposure to herbicides is conceded. Post-service medical evidence documents a diagnosis of sleep apnea as of 2010. In a May 2011 medical record from Tri-City Medical Services, a private physician determined that the Veteran suffers from sleep apnea as a result of exposure to Agent Orange in service. The Board has considered this May 2011 private opinion but ultimately finds that the opinion is not persuasive, as the physician provided no rationale for this opinion. Regardless, as noted above, VA must provide a medical examination when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); McLendon, 20 Vet.App. 79, 81-86 (2006). The requirement that the evidence of record "indicates" that a disability, or persistent or recurrent symptoms of a disability, "may be associated" with the Veteran's service establishes "a low threshold." McLendon, 20 Vet. App. at 83. As the Veteran was exposed to herbicides in service, has a current diagnosis of sleep apnea, and has submitted a physician's statement indicating a possible association between the current disability and his active service, the Board finds that the low threshold of McLendon has been met. As such, the evidence of record warrants remand for an appropriate examination. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a SOC as to the issue of entitlement to service connection for a major depressive disorder. He should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of the issue to the Board. If a timely substantive appeal is not filed, the claim should not be certified to the Board. 2. Schedule the Veteran for an appropriate VA examination for sleep apnea claim. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. Then, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea was caused or aggravated by his active duty service, to include in-service exposure to herbicides. The examiner is advised that the term "as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 3. Then, readjudicate the Veteran's sleep apnea claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2015). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs