Citation Nr: 1515330 Decision Date: 04/09/15 Archive Date: 04/21/15 DOCKET NO. 13-11 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a low back disorder. 2. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. 3. Entitlement to service connection for a deviated septum. 4. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder. 5. Entitlement to service connection for a disorder claimed as fatigue. 6. Entitlement to an initial rating for erectile dysfunction associated with hypertension. 7. Entitlement to a rating in excess of 30 for percent allergic or vasomotor rhinitis. 8. Entitlement to a rating in excess of 10 percent for migraine headaches. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1981 until May 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2010, August 2012, and April 2013 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a July 2014 letter, the Veteran suggested that he was attempting to seek revision of a RO decision of June 2014 on the grounds that it contained clear and unmistakable error (CUE) on the issues of service connection for sleep apnea and a deviated septum. The Board notes that the VA did not issue a formal decision in June 2014, but rather a statement of the case was sent in relation to the immediate appeals. If, given the dispositions of the Board on the foregoing issues, the Veteran wishes to seek revision of a final RO decision on the basis of CUE, he is free to do so. The Board directs the Veteran and his representative to 38 C.F.R. § 3.105, and reminds them that any motion for CUE must be pled with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of whether new and material evidence has been received to reopen service connection for a low back disorder, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Sleep apnea was aggravated by, and is etiologically related to, service-connected rhinitis. 2. The Veteran did not sustain an injury related to the septum during service, and a currently deviated septum is unrelated to service. 3. A depressive disorder was aggravated by service-connected disabilities. 4. The Veteran does not have a current disability manifested by fatigue for which service connection may be established. 5. Throughout the initial rating period, erectile dysfunction has not been productive of a physical deformity of the penis. 6. Throughout the entire rating period, allergic or vasomotor rhinitis has been productive of partial obstruction of the nasal passages but not nasal polyps. 7. Throughout the entire rating period, migraine headaches have not been productive of attacks resulting in severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, as secondary to service-connected rhinitis, have been met. 38 U.S.C.A. §§ 1101, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014). 2. A septal deviation was not incurred in service, and is not related to service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2014). 3. The criteria for service connection for a depressive disorder, as secondary service-connected disabilities, have been met. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310, 4.125 (2014). 4. The criteria for service connection for fatigue have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2014). 5. The criteria for an initial compensable rating for erectile dysfunction have not been met or more nearly approximated at any time during the initial rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.115b, Diagnostic Code 7599-7522 (2014). 6. The criteria for a rating in excess of 10 percent for allergic or vasomotor rhinitis have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8100 (2014). 7. The criteria for a rating in excess of 30 percent for migraine headaches have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.97, Diagnostic Code 6522 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection, Generally Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). None of the disorders at issue - fatigue, an acquired psychiatric disorder, a deviated septum, and sleep apnea - are a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that the continuity provisions of 38 C.F.R. § 3.303(b) apply only to those disease listed under 38 C.F.R. § 3.309(a)). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131 (West 2014); see also Degmetich v. Brown, 104 F.3d 1328 (1997). This requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that evidence of a recent diagnosis of a disability prior to a claim for benefits based on that disability, is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran has not suggested that he had service in the Southwest Asia theater of operations during the Persian Gulf War, and the evidence shows that he had no such service. Thus, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. §3.317 are not for application. Sleep Apnea The Veteran asserts that sleep apnea, is related to one or more service-connected disabilities. These include migraine headaches, allergic or vasomotor rhinitis, hypertension, and erectile dysfunction associated with hypertension. Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2014). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. See 38 C.F.R. § 3.310(b) (2014). Establishing service connection on a secondary basis requires (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In September 2012, the Veteran's girlfriend, who reportedly had known the Veteran since 1988, stated that she "noticed he had a very, very severe sleep disorder." Symptoms included "snoring, chocking, [and] gasping for air while asleep," and "[o]ther times, he would just periodically completely stop breathing during sleep." On VA examination in November 2012 the examiner noted that between entering service in 1981 and 1995 (two years after separation) the Veteran's weight had increased by 62 pounds. She went on to state that "[t]he primary cause of [obstructed sleep apnea] is obesity," and that she "would attribute the Vet[eran]'s sleep apnea secondary to weight gain." The examiner repeated this contention when asked whether sleep apnea had been aggravated by service-connected rhinitis in December 2012. In January 2013, a VA neurologist opined that the Veteran's sleep apnea was "aggravated by his rhinitis and deviated septum." While this conclusion was entirely unsupported, it is consistent with a very well-reasoned July 2014 private opinion, which a physician arrived at after a complete review of the Veteran's claims file and an in-person interview with the Veteran. In his report, the private physician repeated much of the Veteran's in-serve history referable to his service-connected rhinitis, and noted that there were in-service complaints of difficulty sleeping. He considered the VA examiner's opinion that the Veteran's sleep apnea was due to weight gain, and opined that "[a]lthough weight gain is a factor in most patients who suffer from [obstructive sleep apnea], the [V]eteran clearly had trouble with sleep while in service . . . and while weight gain may contribute to [obstructive sleep apnea], he clearly had symptoms of [obstructive sleep apnea] while in service." In concluding that "obstructive sleep apnea is more likely than not aggravated by [the Veteran's] service connected allergic rhinitis," the physician cited to a 1999 article describing how poorly controlled symptoms of allergic rhinitis "may contribute to sleep loss, secondary daytime fatigue . . . [and] sleep apnea," and a 2004 article noting that rhinitis is associated with mild sleep apnea. The Board finds the July 2014 private positive nexus opinion to be exceptionally probative that service-connected rhinitis aggravated the Veteran's obstructive sleep apnea. Not only did the physician arrive at his conclusion after a review of the entire record and consideration of the Veteran's lay statements, he also considered the conclusions of the VA examiner, and supported his own opinion with a well-reasoned rationale and medical treatise information. Accordingly, service connection for obstructive sleep apena is established and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Deviated Septum In an August 2012 statement, the Veteran recalled having injured his face twice during service. In one instance while playing football he "ran head to head with the opposition leaving [him] with a bloody nose." In the second instance, the Veteran reported he was on the flight deck of the USS Bunker Hill when the ship's wash down system was mistakenly activated. In attempting to return inside to avoid the high pressure wash down equipment, the Veteran was pushed and his "face hit the bulkhead." An on-board corpsman "stated that [he] had a minor fracture to [his] nose however no realignment was necessary," and he was instructed to use ice on his face. In support of the Veteran's description of facial trauma, a friend reported that he picked the Veteran up from the airport - the Veteran having just returned from the USS Bunker Hill - and he saw that the "nose and surrounding areas was [sic] puffy and discolored." When asked what had happened, the Veteran replied "that he ran into the bulkhead during a 'Ship's Washdown Exercise.'" Service treatment records show no complaints or treatment referable to the nose or other facial trauma. This is particularly striking given that the record includes several x-ray imaging studies of the sinuses related to ongoing treatment of rhinitis, none of which noted any deviation. On separation examination in May 1993, the Veteran's nose was normal. He endorsed "ear, nose, or throat trouble" in relation to a dust allergy, and "broken bones" regarding a right finger fracture at age 12, but the Veteran made no mention of any facial trauma. In his August 2012 statement to VA, the Veteran indicated that his "Exiting Medical Examination diagnosed Deviated Septum." The Board has carefully reviewed his separation examination, and finds that no such diagnosis was made at separation, or at any time during service. The record confirms that the Veteran does have some degree of deviation in his septum, and there is evidence that such deviation is both to the left and to the right. On VA examination in August 1998 - more than five years after separation from service - a "left-sided anterior and right-sided posterior nasal septal deviation" was noted, and in September 2009 "nasal caudal nasoseptal deviation to the left with compensatory inferior turbinate" was noted. Although on VA examination in February 2011, there was no evidence of septal deviation, nor was there any scarring or deformity of the nose. Radiographic imaging of the sinuses in January 2012 showed "[m]ild nasal septal deviation to the left," and an April 2012 otolaryngology note confirmed a curved anterior septal deviation to the left. On VA examination in November 2012, the Veteran reported having been diagnosed with a deviated septum in 1989 and told the examiner about his two in-service nose traumas, and that he "feels that one of these incidents caused the deviated septum." The examiner stated that there were no scars or other pertinent physical findings related to a deviated septum, and reviewed radiographic imaging which showed a "[m]ild deviation of the nasal septum to the right." In March 2013, during VA otolaryngology treatment, an anterior rhinoscopy revealed a leftward septal deviation with 60 percent of the airway obstructed, although following use of a decongestant, there was significant improvement in the nasal passage. In July 2013 rhinoscopy revealed only "a very mild leftward septal deviation with 2 to 3+ turbinate hypertrophy." Based on the foregoing the Board finds that, while there is some inconsistency regarding its direction, the weight of the evidence shows that the Veteran does have a septal deviation. Nonetheless, the Board finds that any such deviation was not incurred in, or is otherwise related to service for the following reasons. The Veteran is competent to report on those things which are capable of lay observation, including facial injuries during service. Layno, 6 Vet. App. 465. Thus, he is competent to assert that he hit his face twice during service, and the Board finds such assertions to be credible. However, attributing one or more in-service facial impacts to the subsequent diagnosis of a deviated septum is well beyond the scope of his lay competence. Having reviewed the record, the Board finds that the Veteran did not have a deviated septum at any time during service. Specifically, over more than a decade of active service, the Veteran was seen regarding rhinitis symptoms numerous times, and underwent at least two radiographic studies of the sinuses. The Board reasonably concludes that if the Veteran had a deviated septum, evidence of such a diagnosis or observation would be found within treatment records for his ongoing rhinitis symptoms. See Kahana, 24 Vet. App. at 440 (2011) (Lance, J., concurring) (setting forth the factual and analytic predicate for finding that an absence of evidence is substantive negative evidence). Thus, with regard to the Veteran's assertion that he was in fact diagnosed with a deviated septum in 1989, the Board finds such assertion to have limited probative value in light of the foregoing evidence to the contrary. The Board is left with a record which demonstrates that the Veteran had some in-service facial trauma, but no deviated septum during service or at separation from service. Thus, the evidence shows that the Veteran's deviated septum was incurred after separation, and is unrelated to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Acquired Psychiatric Disorder The Veteran contends that an acquired psychiatric disorder is related to service, or a service-connected disability. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, although in his April 2013 claim the Veteran specifically sought service connection for "depression," the Board has taken an expansive view of the claim pursuant to Clemons. The Veteran's record contains very little evidence regarding any treatment or symptoms referable to an acquired psychiatric disorder. However, in August 2014 he underwent assessment by a mental health physician, which included use of VA's Mental Disorder (Other than PTSD and Eating Disorders) Disability Benefits Questionnaire. The physician concluded that the Veteran's service-connected migraine headaches, rhinitis, and hypertension "manifest as a depressive disorder," and "caused the depressive disorder." In so concluding, she noted a "body of literature detailing the connection between depressive and anxiety symptomology in individuals with headaches, like the headaches that [the Veteran] struggles [with,] and psychiatric disorder, similar to [the Veteran's] depressive disorder." She went on to conclude based on her review of the Veteran's claims file, that the Veteran's service-connected disabilities "are more likely than not aggravating his depressive disorder." In arriving to these conclusions, the private physician referenced two academic articles supporting the relationship between depressive disorders and pain generally, as well as headaches specifically. Given the foregoing well-reasoned and supported private opinion, and the lack of any evidence suggesting otherwise, the Board finds that a depressive disorder is secondary to the Veteran's service-connected migraine headaches, rhinitis, and hypertension. Accordingly, service connection is established and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Fatigue In an April 2013 claim for benefits, the Veteran sought service connection for "fatigue." In a December 2013 letter to a member of Congress, he stated that he wakes up "every morning feeling as if [he has] been hit by a Mack Truck and the rest of [his] days are filled with persistent headaches, fatigue, and a mental fog." The Board has considered the Veteran's claim carefully and in the light most beneficial to the Veteran, but finds that fatigue is a symptom, and not a disability for which service connection may be granted. The Veteran's history of fatigue and poor sleep began during service, and accordingly to a July 2014 private opinion, this may have been evidence of the onset of obstructive sleep apnea. Since that time, the Veteran has been prescribed the use of a continuous positive airway pressure (CPAP) mask at night for treatment of his obstructive sleep apnea. Throughout his treatment records, the Veteran has indicated that he has had difficulty sleeping with the CPAP mask, and during his November 2012 VA examination persistent daytime hypersomnolence (i.e., sleepiness) was directly related to obstructive sleep apnea. In July 2013, the Veteran reported being unable to "tolerate his CPAP mask for sleep apnea," and that "he has so much sinus drainage that this keeps him up at night, and he is having very poor quality of sleep." The evidence clearly shows that the claimed fatigue is a symptom of service-connected obstructive sleep apnea, rather than a free standing disability, and there is no indication - including from the Veteran's own statements - that there exists any distinct underlying pathology related to fatigue. One of the principal, necessary elements for establishing entitlement to service connection is the existence of a current disability; it is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Here, where the evidence confirms that the Veteran has no current disability, service connection cannot be granted. Thus, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initial and Increased Ratings, Generally Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2014). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In considering the ratings on appeal, the Board has considered applying alternate Codes to evaluate the Veteran's service-connected disabilities where applicable. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this regard, the Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," see Butts v. Brown, 5 Vet. App. 532, 538 (1993), and that one Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Erectile Dysfunction Associated with Hypertension In the April 2011 decision on appeal, the Veteran was awarded service connection for erectile dysfunction and granted an initial noncompensable evaluation effective August 30, 2011. In a subsequent May 2013 decision, the RO granted an earlier effective date for the award of service connection - August 30, 2010 - in recognition that a clerical error had mistakenly assigned an incorrect effective date in August 2011, rather than August 2010. The Veteran's appeal for a higher initial rating is an appeal from the initial assignment of a disability rating following the establishment of service connection. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The Veteran's erectile dysfunction is rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC or Code) 7599-7522 (2014). Hyphenated Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2014). The appellant's specific disability is not listed in the Rating Schedule, and the RO assigned Diagnostic Code 7599 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2014). The RO determined that the most closely analogous Diagnostic Code was 38 C.F.R. § 4.115b, DC 7522 for penis deformity with loss of erectile power. Under DC 7522 a compensable, 20 percent, rating is provided on evidence of both loss of erectile power and a physical deformity of the penis. 38 C.F.R. § 4.115b. A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350(a). The VA Adjudication Procedure Manual confirms that two requirements must be met before a 20 percent evaluation can be assigned for deformity of the penis with loss of erectile power under DC 7522: (1) the deformity must be evident, and (2) the deformity must be accompanied by loss of erectile power. Simply stated, the condition is not compensable in the absence of penile deformity. See M21-1MR, Part III, Subpart iv, Chapter 4, Section I, Topic 34, Block a. After reviewing the entire claims file, the Board finds that the Veteran's erectile dysfunction has not been compensably disabling at any time during the initial rating period on appeal. Specifically, erectile dysfunction has not been productive of physical deformity. The requirement under DC 7522 of deformity of the penis with loss of erectile power clearly means that both conditions must be met for the award of a 20 percent rating. To that end, on VA examination in February 2011, the Veteran's penis was physically "normal," and the Veteran has made no suggestion to the contrary. Rather, his principle contention is with respect to the loss of erectile power. However, without evidence of a physical deformity, a compensable rating cannot be assigned. With regard to SMC under 38 C.F.R. § 3.350, the Veteran has already been awarded SMC relating to his erectile disability, and no further consideration of such entitlement is warranted. Accordingly, the Board concludes that the Veteran's erectile dysfunction has been noncompensably percent disabling, and no higher, throughout the entire initial rating period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Allergic or Vasomotor Rhinitis The Veteran was previously awarded service connection and assigned an initial disability rating for allergic or vasomotor rhinitis in a prior RO decision not currently on appeal; rather the Veteran seeks an increased rating. On claims for increased ratings, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). The Veteran's rhinitis is currently rated as 10 percent disabling, effective May 20, 1993, under 38 C.F.R. § 4.97, DC 6522. Under this Code, a 10 percent rating contemplates allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides, or complete obstruction on one side. A 30 percent evaluation is assigned when polyps are also present. 38 C.F.R. § 4.97, DC 6522 (2014). The Board finds that the Veteran's rhinitis has not been more than 10 percent disabling at any time during the period on appeal as rhinitis has not been productive of nasal polyps. In an August 2010 treatment note, the Veteran reported that his symptoms had improved with irrigation and had become stable since his last followup. He also indicated that he was successfully using medication, and the possibility of a septoplasty and turbinate reduction was discussed as a way to potentially improve his breathing. On VA examination in February 2011, the Veteran stated that rhinitis had caused poor sleep, and that "he wakes up with a dry nose/mouth and keeps a glass of water by his bedside." Physical examination nasal vestibule and turbinates were normal, and the degree of obstruction was less than 10 percent bilaterally. No polyps were present. In November 2012, VA examination showed greater than 50 percent obstruction of the nasal passages on both sides, but without total obstruction on either side. The turbinates were in a state of permanent hypertrophy, and there were no nasal polyps. The Veteran has reported numerous symptoms which he attributes to his service-connected rhinitis. In August 2010, for example, he contended that worsening rhinitis has resulted in itching and watery eyes, and frequent nose bleeds. He stated that "[t]he condition causes [his] nose/nasal passages to be sensitive to the touch and even affects [his] balance." To the extent that the Veteran's symptoms are capable of lay observation, his endorsements are competent. Layno. However, even when considering such endorsements, the evidence demonstrates that at no time during the period on appeal has rhinitis been productive of nasal polyps, and thus a rating of greater than 10 percent cannot be granted. Accordingly, the Board concludes that the Veteran's rhinitis has been 10 percent disabling, and no higher, throughout the entire period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Migraine Headaches The Veteran seeks a higher rating for service-connected migraine headaches. As with his rhinitis, the Veteran's claim for a higher rating for headaches is a claim for an increased - rather than an initial - rating. As such, the Board has fully considered whether the propriety of assigning separate disability ratings for separate periods of time, but finds that one or more "staged ratings" are not warranted in this case, as the evidence discussed below shows. The Veteran's headaches are currently rated as 30 percent disabling, effective May 20, 1993, under 38 C.F.R. § 4.124a, DC 8100. Under this Code, a 30 percent rating is assigned for migraines with characteristic prostrating attacks, occurring on an average once a month over last several months. A 50 percent rating is warranted where migraines are manifest by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a (2014). Having reviewed the entire claims file, the Board finds that the Veteran's migraine headaches have been not more than 30 percent disabling for any period on appeal. Specifically such migraines have not been productive of attacks resulting in severe economic inadaptability. On VA examination in February 2011, the Veteran described headaches as occurring every day, between 3:00pm and 4:00pm in the afternoon, and that he used over-the-counter medications for treatment. Most attacks were prostrating, and lasted for several hours, but the Veteran did not take continuous medication. The Veteran reported that he had been laid off from his last job because he "wasn't able to communicate with boss that he was having a headache." The Veteran had informed the examiner that he had taken no medication the day before "because he didn't know if he should because of the [VA examination]," yet the examiner noted that the Veteran nonetheless functioned "very normally" throughout his three hour examination. In a September 2011 statement, the Veteran asserted that although he had only been using over-the-counter medication in the past, he wanted "something stronger, and after over a decade of self-medicating, it's getting expensive." He went on to state the he was expecting to "routinely start getting much needed Migraine Medication from the VA Medical Center." During July 2014 private health assessments, the Veteran reported tension headaches once per day, every day, and reported that migraine headaches occurred two to three times a week - lasting for up to three days. Following assessment, one provider opined that migraines had "been at a level of intensity that interferes markedly with occupational and social functioning," indicating that during a 40-hour work week, the Veteran was likely to miss three or more days of work per month due to headaches. The Board recognizes that the Veteran's headaches have been severe. However, the applicable rating criteria expressly require that migraine headache symptoms are "productive of severe economic inadaptability" - a highly specific threshold. Although both the Veteran and reviewing private physicians have pointed to marked interference, the Board finds that this does not rise to the level of severe economic inadaptability for the award of a 50 percent rating under DC 8100. Accordingly, the Board concludes that the Veteran's migraine headache disability has been not more than 30 percent disabling throughout the entire period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In addition to the schedular analyses above, the Board has considered whether referral for extraschedular ratings is warranted for service-connected erectile dysfunction, allergic or vasomotor rhinitis, or migraine headaches. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Id. at 115. Here the schedular rating criteria used to rate the Veteran's service-connected disabilities above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disabilities on the basis of reduction in organ functioning (erectile dysfunction), obstruction of nasal passage and presence or lack of polyps (rhinitis), and the economic effects of symptoms (migraine headaches). Thus, the demonstrated manifestations - namely loss of erectile power, obstruction of nasal passage without polyps, and prostrating headache attacks without severe economic inadaptability - are contemplated by the provisions of the rating schedule. Accordingly, the Board finds that the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected disabilities that would render the schedular criteria inadequate. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disability, hypertension, in concluding that referral for consideration of an extraschedular rating is not warranted. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Notice letters were sent to the Veteran in December 2010, August 2012, and April 2013 prior to the initial adjudications of the relevant claims on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran's appeal regarding a compensable initial rating for erectile dysfunction arises from an appeal of the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, and additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Federal Circuit has interpreted these decisions as meaning that VCAA notice is not required in the case of an appeal of an effective date assigned when an increased rating has been granted. See Sanford v. Peake, 263 F. App'x 54, 55 (Fed. Cir. 2008). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under applicable VA laws and regulations regarding this particular matter. For increased-compensation claims, such as the Veteran's headache and rhinitis claims, the US Court of Appeals of Veterans Claims (the Court) has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009), see also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Such notice was provided in the letter sent to the Veteran in December 2010. VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, 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 evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service (or, by analogy, to a service-connected disability), the Court has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence establishes no in-service injury, disease, or event, VA is not obligated to provide a medical examination). A conclusory generalized statement regarding the nexus between a disability and service is not enough to entitle a veteran to a medical examination under § 5103A(d)(2)(B). Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). "Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case." Id. As discussed above, service treatment records are silent as to any complaints or treatment for symptoms of fatigue. Moreover, while post-service evidence shows some complaints of fatigue or drowsiness, possibly associated with poor sleep due to use of a CPAP machine, there has been no diagnosed pathology associated with the Veteran's tiredness. Consequently, a VA examination as to the etiology of the claimed disorder - without competent evidence of a current disability - is not warranted, even under the low threshold of McLendon. The duty to assist was satisfied with respect to the provision of VA examination, where called for, in February 2011, November 2012, December 2012, during which examiners conducted physical examinations of the Veteran, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2014); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claims and no further notice or assistance is required. Regarding claims of service connection for major depression, and sleep apnea, the Board is granting, in full, the benefits sought on appeal and VA has no further duty to notify or assist. ORDER Service connection for sleep apnea is granted. Service connection for a deviated septum is denied. Service connection for depressive disorder is granted. Service connection for fatigue is denied. A higher (compensable) initial evaluation for erectile dysfunction is denied. A rating in excess of 30 percent for percent allergic or vasomotor rhinitis is denied. A rating in excess of 10 percent for migraine headaches is denied. REMAND New and Material The Veteran is seeking to reopen a previously denied claim of service connection for a back disorder. When a veteran submits an application to reopen a claim, VA is not required to provide specific notice of the information and evidence necessary to substantiate the element or elements that were found insufficient, but is required "to explain what 'new and material evidence' means." Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). Regrettably in this case, the Veteran was not provided with appropriate and sufficient notice regarding the foregoing issue, and thus this matter must be remanded in order to correct the deficiency. Total Disability Rating Based on Individual Unemployability The Veteran has sought entitlement to a total disability rating based on individual unemployability (TDIU) on and off throughout the period on appeal. Generally such entitlement may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2014). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2009); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Currently, the Veteran does not meet the schedular criteria for assignment of TDIU. However, the Board has granted service connection for depression and sleep apnea, the RO must assign initial ratings before the matter of entitlement to TDIU may be properly addressed. Furthermore, the Board notes that evidence of record from private examiners in July 2014 strongly suggests that the Veteran has been rendered unemployable by the combined effects of his multiple service-connected disabilities - irrespective of whether he meets the threshold schedular criteria. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with appropriate notice relating to successfully prevailing in his claim to reopen service connection for a back disorder. Only after such notice has been provided, and an appropriate duration of time has passed to allow the Veteran to submit additional records, readjudicate the claim. 2. Assign initial ratings for depression and sleep apnea, as per standard procedures following the grant of service connection by the Board. Only after initial ratings have been assigned should the RO provide the Veteran appropriate notice regarding substantiation of his claim for TDIU. Following such notice, and given an appropriate duration of time to allow the Veteran to submit additional records, adjudicate the claim for TDIU on a schedular basis. If a new VA examination is needed in order to properly adjudicate the claim, such an examination should be arranged. If TDIU is not granted on a schedular basis, refer the issue to the VA Director Compensation and Pension Service for consideration of the assignment of TDIU on an extra-schedular basis. 38 C.F.R. § 4.16(b) (2014). 3. If, after completing all indicated development any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished regarding such issues(s) to the Veteran, and he should be afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ R. FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs