Citation Nr: 18148040 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-24 658A DATE: November 6, 2018 ORDER New and material evidence having not been received, the application to reopen the previously denied claim of service connection for pseudofolliculitis barbae is denied. New and material evidence having not been received, the application to reopen the previously denied claim of service connection for tinnitus is denied. New and material evidence having not been received, the application to reopen the previously denied claim of service connection for a back disability is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to a rating in excess of 30 percent for sinusitis is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for left knee chondromalacia with lateral meniscus tear, status post surgical repair, is remanded. Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A September 1998 rating decision denied service connection for pseudofolliculitis barbae. The appellant was duly notified of the RO’s determination and his appellate rights but did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 2. Evidence received since the final September 1998 rating decision denying service connection for pseudofolliculitis barbae is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. A November 1998 rating decision denied service connection for tinnitus. The appellant was duly notified of the RO’s determination and his appellate rights but did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 4. Evidence received since the final November 1998 rating decision denying service connection for tinnitus is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 5. A May 2005 Board decision denied service connection for a low back disability. The appellant was duly notified of the Board’s determination and his appellate rights but did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 6. Evidence received since the final May 2005 Board decision denying service connection for a low back disability is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 7. The appellant does not have a sleep disability, to include obstructive sleep apnea, which was incurred in or is otherwise causally related to his active service. 8. The appellant’s sinusitis has not resulted in 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. CONCLUSIONS OF LAW 1. The September 1998 rating decision which denied service connection for pseudofolliculitis barbae is final. 38 U.S.C. § 7105(c) (1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 2. New and material evidence has not been received to warrant reopening of the claim of service connection for pseudofolliculitis barbae. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The November 1998 rating decision which denied service connection for tinnitus is final. 38 U.S.C. § 7105(c) (1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 4. New and material evidence has not been received to warrant reopening of the claim of service connection for tinnitus. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The May 2005 Board decision which denied service connection for a low back disability is final. 38 U.S.C. § 7104(b) (2000); 38 C.F.R. § 20.1100 (2004). 6. New and material evidence has not been received to warrant reopening of the claim of service connection for a back disability. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5017 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 8. The criteria for a rating in excess of 30 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.97, DC 6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the Navy from April 1996 to September 1998. This matter comes before the Board of Veterans’ Appeals (Board) from four rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A December 2013 rating decision (1) increased the evaluation of right knee patellofemoral pain syndrome from noncompensable to 10 percent, effective January 16, 2013; (2) denied a rating in excess of 10 percent for left knee chondromalacia with lateral meniscus tear, status post surgical repair; (3) denied a rating in excess of 30 percent for migraine headaches; (4) denied service connection for an acquired psychiatric disorder; (5) denied reopening the previously denied claim of service connection for a back disability; and (6) denied reopening the previously denied claim of service connection for pseudofolliculitis barbae. A second December 2013 rating decision increased the evaluation of sinusitis from noncompensable to 30 percent, effective January 16, 2013. A timely Notice of Disagreement (NOD) was received in October 2014. A July 2014 rating decision (1) denied service connection for obstructive sleep apnea and (2) denied reopening the previously denied claim of service connection for tinnitus. A timely NOD was received in November 2014. A December 2014 rating decision denied entitlement to TDIU. A timely NOD was received in January 2015. Three Statements of the Case (SOC) were issued in June 2016, while one was issued in September 2016. Two timely substantive appeals were received in July 2016; and one was received in October 2016. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Pseudofolliculitis Barbae In a September 1998 rating decision, the RO denied service connection for pseudofolliculitis barbae because such was not considered a chronic condition under most circumstances. There was no evidence of a current disability. While he had been on a shaving profile in 1996, there was no evidence of a skin disability at separation. Indeed, the appellant denied having a skin disability. The appellant was duly informed of this decision in an October 1998 letter, but did not appeal within the applicable time period, nor was new and material evidence received within one year of the letter. Thus, the determination is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c) (1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in September 1998. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the final September 1998 rating decision includes the appellant’s January 2013 statement that he wished to again claim service connection for pseudofolliculitis barbae and VA medical records which indicate observations of acne keloidalis nuchae in 2001, more than one year after the final September 1998 rating decision, and more than a decade prior to the period on appeal. However, there is no evidence of a current disability during the period on appeal; and there is also no indication of a connection between a current disability and active service. The Board finds that such evidence is cumulative of the evidence of record at the time of the prior final denial of the claim. Thus, the Board concludes that this evidence is not new and material. 38 C.F.R. § 3.156. In fact, the nature of the appellant’s theory of entitlement with respect to this claim is unclear. The appellant and his attorney have been given multiple opportunities to submit or identify evidence or arguments in support of this claim, but apparently chose not to do so. The appellant’s attorney is reminded that it is a claimant’s responsibility to support a claim for VA benefits, including submitting or specifically identifying relevant evidence and alleging specific errors of fact of law. See 38 U.S.C. §§ 5107(a), 7105(d)(5). Counsel are expected to present arguments they deem material and relevant to their clients’ cases. See e.g. Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to a sympathetic reading). For these reasons, the Board finds that the additional evidence received since the final September 1998 rating decision is not new and material under the meaning of 38 C.F.R. § 3.156(a). Consequently, the Board finds that new and material evidence has not been received and the claim of service connection for pseudofolliculitis barbae is not reopened. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinnitus In a November 1998 rating decision, the RO denied service connection for tinnitus although the appellant reported constant tinnitus and military noise exposure in the form of loud trucks while working around a hospital, and had been diagnosed with such by a November 1998 VA examiner. The appellant was duly informed of this decision in a December 1998 letter, but did not appeal within the applicable time period, nor was new and material evidence received within one year of the letter. Thus, the determination is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c) (1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in November 1998. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the final November 1998 rating decision includes VA treatment records from March and May 2014, including an emergency room visit for ringing in the ears. During a May 2014 audiology assessment, the appellant complained of tinnitus and reported military noise exposure in the form of gunfire. He rarely wore hearing protection. He endorsed occupational noise exposure for 10 years working as a police officer; however, hearing protection was always worn on the firing range. He denied recreational noise exposure. A VA medical opinion was obtained in June 2016. The VA physician offered a negative etiological opinion as to whether the appellant’s tinnitus was incurred in or otherwise causally related to his active service. The Board finds that such evidence is cumulative of the evidence of record at the time of the prior final denial of the claim. Thus, the Board concludes that this evidence is not new and material. 38 C.F.R. § 3.156. The appellant’s complaints of current tinnitus were of record at the time of the November 1998 rating decision. Likewise, although he now reports that his military noise exposure was in the form of gunfire, while he previously reported such was in the form of loud trucks while working around a hospital, his contentions of military noise exposure, while new, are essentially cumulative of evidence already of record. The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran’s testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran’s testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id.; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, the appellant has not provided evidence in support of nexus between the diagnosed tinnitus and his military service, which was not previously considered in the prior November 1998 rating decision. Accordingly, his contentions made during the current appeal are cumulative and may not be deemed to be both new and material. Shade, supra. While RO reopened and denied claim on merits based upon the negative June 2016 medical opinion, evidence that is unfavorable to a claimant is not new and material. See Villalobos v. Principi, 3 Vet. App. 450 (1992). Thus, the appellant received more consideration of his claim that was legally required. The appellant and his attorney have been given multiple opportunities to submit or identify evidence or arguments in support of this claim, but apparently chose not to do so. The appellant’s attorney is reminded that it is a claimant’s responsibility to support a claim for VA benefits, including submitting or specifically identifying relevant evidence and alleging specific errors of fact of law. See 38 U.S.C. §§ 5107(a), 7105(d)(5). Counsel are expected to present arguments they deem material and relevant to their clients’ cases. See e.g. Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to a sympathetic reading). For these reasons, the Board finds that the additional evidence received since the final November 1998 rating decision is not new and material under the meaning of 38 C.F.R. § 3.156(a). Consequently, the Board finds that new and material evidence has not been received and the claim of service connection for tinnitus is not reopened. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Back Disability Following the appellant’s timely appeal of a September 2000 rating decision which denied service connection for a low back disability, the Board denied service connection for such in a May 2005 decision. The record shows that the appellant did not appeal the Board’s decision to the Court of Appeals for Veterans Claims (CAVC), nor was new and material evidence received within one year of the decision. Thus, the Board’s May 2005 decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7104(b) (2000); 38 C.F.R. § 20.1100 (2004). In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in May 2005. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the final May 2005 decision includes the appellant’s January 2013 statement that he wished to again claim service connection for a back disability and additional VA medical records. However, there is no evidence of a nexus between a current back disability and the appellant’s active service, to include the September 1997 low back strain. Indeed, there is no evidence that the appellant has a current disability during the period on appeal, although he had such at the time of the May 2005 Board decision. At the time of the May 2005 Board decision, the appellant had a current disability, but there was no nexus between such and the appellant’s service. There is no new evidence regarding the crucial element of nexus. Thus, the Board finds that the evidence is cumulative of the evidence of record at the time of the prior final denial of the claim. Thus, the Board concludes that this evidence is not new and material. 38 C.F.R. § 3.156. In fact, the nature of the appellant’s theory of entitlement with respect to this claim is unclear. The appellant and his attorney have been given multiple opportunities to submit or identify evidence or arguments in support of these claims, but apparently chose not to do so. The appellant’s attorney is reminded that it is a claimant’s responsibility to support a claim for VA benefits, including submitting or specifically identifying relevant evidence and alleging specific errors of fact of law. See 38 U.S.C. §§ 5107(a), 7105(d)(5). Counsel are expected to present arguments they deem material and relevant to their clients’ cases. See e.g. Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to a sympathetic reading). For these reasons, the Board finds that the additional evidence received since the final May 2005 Board decision is not new and material under the meaning of 38 C.F.R. § 3.156(a). Consequently, the Board finds that new and material evidence has not been received and the claim of service connection for a back disability is not reopened. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis and other organic diseases of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Obstructive sleep apnea is not a qualifying chronic disability for the purposes of these provisions. To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Obstructive Sleep Apnea Service treatment records are negative for complaints, observations, treatment, or diagnoses regarding sleep apnea, or indeed, any other sleep disorder. His July 1998 separation examination was essentially normal with respect to the head and neurologic. On his July 1998 Report of Medical History, he denied frequent trouble sleeping. A May 2016 clinical note states that the appellant desired a sleep study. His girlfriend told him that he snores and stops breathing. He denied falling asleep behind the wheel and also denied narcolepsy. A sleep study was ordered. The note states that his past medical history includes sleep apnea. A June 2016 sleep medicine consult note states that the appellant attended a sleep clinic intake group. Based upon questionnaire results and a strong suspicion for sleep disordered breathing, a polysomnogram was ordered. The Board has considered the appellant’s lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. In any event, there is no medical evidence of a current diagnosis of sleep apnea, or any other sleep disorder. Even if the May 2016 notation that the appellant’s past medical history included sleep apnea was indicative of a diagnosis, rather than a filtered recollection relayed to the VA clinician, see e.g. Warren v. Brown, 6 Vet. App. 4 (1993), the outcome of this matter would not change. Indeed, while the results of the VA-ordered polysomnogram are not of record, there is no indication that any current sleep disability, to include sleep apnea, was incurred in or is otherwise causally related to the appellant’s active service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Again, service treatment records are negative for complaints, observations, diagnoses, or treatment for sleep apnea, or any other sleep disorder. In fact, the nature of the appellant’s theory of entitlement with respect to this claim is unclear. The appellant and his attorney have been given multiple opportunities to submit or identify evidence or arguments in support of these claims, but apparently chose not to do so. The appellant’s attorney is reminded that it is a claimant’s responsibility to support a claim for VA benefits, including submitting or specifically identifying relevant evidence and alleging specific errors of fact of law. See 38 U.S.C. §§ 5107(a), 7105(d)(5). Counsel are expected to present arguments they deem material and relevant to their clients’ cases. See e.g. Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to a sympathetic reading). As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or “staged,” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The appellant’s sinusitis is rated under Diagnostic Code (DC) 6513. A 30 percent rating is warranted 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 note defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. A maximum rating of 50 percent for sinusitis is warranted 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, DCs 6510-6514. Sinusitis The appellant was afforded a contracted examination in November 2013. The appellant reported that his sinuses start to swell and become congested, causing him to have a hard time breathing. He endorsed constant fatigue, sore throat, and nasal congestion. He coughs a lot and has difficulty breathing. He also endorsed headaches and pressure. Continuous medication in the form of nasal spray and decongestants were required for control. He had chronic maxillary sinusitis detected only by imaging studies. He had seven or more non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. He had not had any incapacitating episodes. The appellant had not undergone any sinus surgery. He did not have a deviated nasal septum due to trauma, nor did he have any benign or malignant neoplasm or metastases. November 2013 imaging studies of the paranasal sinus revealed mild chronic maxillary mucosal change. There was no impact on the appellant’s ability to work. The appellant’s condition was described by the contracted clinician as quiescent. A December 2013 VA medical opinion was obtained to determine if the appellant’s service-connected migraine headaches and non-migraine headaches could be differentiated, and, if so, whether the latter were attributable to his sinusitis. The VA clinician explained that the appellant’s non-migraine headaches were well-defined for the diagnosis of sinusitis and were differentiable from his service-connected migraine headaches. In January 2014, the appellant presented to the emergency room for sinus congestion with drainage into throat for one week. Respiration and circulation were normal. Mental state was calm. In a Disability Benefits Questionnaire (DBQ) for headaches completed by Dr. Homer Skaggs in November 2016, Dr. Skaggs opined that “[i]t is not possible to differentiate out the symptoms of headaches associated with his sinusitis and his migraines that were caused by service.” No rationale was provided for this conclusion. Although these opinions differ as to whether the appellant’s migraine and non-migraine headaches can be differentiated, such is not outcome-determinative in the matter of entitlement to a rating in excess of 30 percent for sinusitis. A rating in excess of 30 percent for sinusitis is warranted 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. Id. There is no evidence, nor is it contended, that the appellant has undergone any surgery for his sinusitis, repeated, radical, or even a single surgery. Indeed, the November 2013 contracted examiner noted that the appellant had not undergone sinus surgery and there is no indication, in lay or medical evidence, that the appellant has since undergone any sinus surgery. Thus, a rating in excess of 30 percent is not warranted. Further, the appellant’s service-connected sinusitis does not more nearly approximate the severity contemplated by a maximum 50 percent rating because his sinusitis is not near constant. Rather, he experiences seven or more non-incapacitating episodes in a 12-month period. It is not contended otherwise. In fact, the nature of the appellant’s theory of entitlement with respect to this claim is unclear. The appellant and his attorney have been given multiple opportunities to submit or identify evidence or arguments in support of these claims, but apparently chose not to do so. The appellant’s attorney is reminded that it is a claimant’s responsibility to support a claim for VA benefits, including submitting or specifically identifying relevant evidence and alleging specific errors of fact of law. See 38 U.S.C. §§ 5107(a), 7105(d)(5). Counsel are expected to present arguments they deem material and relevant to their clients’ cases. See e.g. Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to a sympathetic reading). As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Acquired Psychiatric Disorder Received in November 2016 were a March 2016 private Disability Benefits Questionnaire (DBQ) and medical opinion from Dr. Heather Henderson-Galligan. She diagnosed the appellant with unspecified depressive disorder and opined that such began while the appellant was on active duty and was aggravated by his migraine headaches, sinusitis, and bilateral knee disabilities. While she notes reports of changed personality after separation from the appellant, his mother, and his brother, Dr. Henderson-Galligan’s rationale appears to be primarily based upon medical articles about veterans in general, rather than the appellant’s own history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Further, the Board notes that a May 2016 depression screen was negative. The appellant has not yet been afforded a VA examination to determine the nature and etiology of any psychiatric disorders. He should be afforded such upon remand. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Bilateral Knees The appellant was last afforded an examination to determine the severity and manifestations of his service-connected bilateral knee disabilities in November 2013. During such examination, the appellant endorsed flare-ups, which he described as manifested by swelling, stiffness, creaking sounds, and locking. Since then, the Court of Appeals for Veterans Claims (Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopaedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why he could not do so.” In light of these decisions, the Board finds that a new VA examination should be provided. Migraine Headaches Dr. Homer Skaggs completed a DBQ in November 2016. It is unclear whether Dr. Skaggs conducted an examination or simply interviewed the appellant. Dr. Skaggs opined that “[i]t is not possible to differentiate out the symptoms of headaches associated with his sinusitis and his migraines that were caused by service.” No rationale was provided for this conclusion. See Nieves-Rodriguez, supra. However, a December 2013 VA medical opinion was obtained. The VA clinician explained that the appellant’s migraine headaches were distinguishable from non-migraine headaches and pressure symptoms which are related to episodes of service-connected sinusitis. In any event, the appellant indicated to Dr. Skaggs that his migraines were becoming more severe and frequent since the November 2013 examination. Thus, the Board finds that a new examination is warranted to determine the current severity and manifestations of his service-connected migraine headaches. TDIU As resolution of the aforementioned claims may have an impact on the appellant’s claim of entitlement to a TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Provide the appellant with an examination to determine the nature and etiology of any and all psychiatric disorders present. Access to the appellant’s electronic VA claims file should be made available to the examiner for review in connection with the examination. After reviewing the record and examining the appellant, the examiner should delineate all current mental disorders exhibited by the appellant, if any. Diagnoses should be rendered in accordance with DSM-5. The examiner is asked to provide opinions on the following: A) Is it at least as likely as not that any psychiatric disorder identified is causally related to the appellant’s active service or any incident therein? B) For any mental disorder diagnosed, is it at least as likely as not that it was i) caused or ii) aggravated by the appellant’s service-connected migraine headaches, sinusitis, and bilateral knee disabilities? If aggravation is found, the examiner must attempt to establish a baseline level of severity of any such mental disorder prior to aggravation by service-connected disabilities. The examiner’s attention is directed to (1) Dr. Henderson-Galligan’s March 2016 DBQ and opinion; (2) the April 2016 statements from the appellant’s brother and mother, received in June 2016; and (3) a May 2016 negative depression screen. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Schedule the appellant for appropriate VA examination to determine the current nature and severity of his right knee and left knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify right knee and left knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the appellant to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the appellant’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). 3. Schedule the appellant for an examination by an appropriate clinician to determine the current severity of his service-connected migraine headache disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant’s disability under the rating criteria, including the frequency, severity, and duration of any characteristic prostrating attacks. The examiner should describe the impact, if any, the headaches have on the appellant’s occupational function. (Continued on the next page)   The examiner’s attention is directed to (1) the November 2013 contracted examination report; (2) the December 2013 VA medical opinion which explains that the appellant’s migraine headaches are distinguishable from non-migraine headaches and pressure symptoms which are related to episodes of service-connected sinusitis; and (3) the November 2016 opinion of Dr. Homer Skaggs that “[i]t is not possible to differentiate out the symptoms of headaches associated with his sinusitis and his migraines that were caused by service. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel