judge_norm: MICHAEL MARTIN

disposition: dismissed

condition: insomnia

text:
Citation Nr: 1428000
Decision Date: 06/20/14    Archive Date: 06/26/14

DOCKET NO.  12-07 976	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Atlanta, Georgia

THE ISSUES

1.  Whether there is new and material evidence to reopen a claim for service connection for a left foot disability, and, if so, whether service connection is warranted.

2.  Entitlement to service connection for insomnia.

REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jonathan Tracy, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 2002 to November 2002 and February 2005 to May 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida and an October 2009 rating decision of the RO in Columbia, South Carolina.  The RO in Atlanta, Georgia now has jurisdiction of this claim.

The Veteran testified via a videoconference hearing before the undersigned Veterans Law Judge in April 2014 and at a hearing before a Decision Review Officer in September 2011.  The transcripts from both hearings have been associated with the Veteran's claims file.

The Board notes that the Veteran's claim for service connection for a left foot condition was previously denied in a June 2007 rating decision.  That decision was not appealed to the Board and became final.  The Veteran filed to reopen the claim in July 2008.  The RO found that new and material evidence had been submitted, but the claim was denied on the merits.

The Board is required to address the issue of whether the Veteran submitted new and material evidence despite the RO's findings.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996).  Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim.  Id.  As such, the issue has been captioned as set forth above.

The issue of service connection for a left foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  In a June 2007 decision, the RO denied the Veteran's claims for service connection for a left foot disability.  The Veteran did not file a timely appeal.

2.  The evidence received since the June 2007 RO decision regarding the Veteran's claim for service connection for a left foot disability is not cumulative of the evidence previously considered, contributes to a more complete picture of the Veteran's claim, and creates a reasonable possibility of an allowance of his claim.

3.  At a hearing before the undersigned Veterans Law Judge in April 2014, and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for insomnia.

CONCLUSIONS OF LAW

1.  The June 2007 RO decision that denied service connection for a left foot disability is final.  38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. � 20.1103 (2013).

2.  New and material evidence has been received to reopen the claim of entitlement to service connection for a left foot disability.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156(a) (2013).

3.  The criteria for withdrawal of the appeal of the issue of entitlement to service connection for insomnia are met. 38 U.S.C.A. � 7105(b)(2), (d)(5)  (West 2002); 38 C.F.R. � 20.204  (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. �� 3.102 , 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112   (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Concerning the issues of service connection for a left foot disability, the Board is granting in full the benefit sought as it pertains to whether to reopen the Veteran's previously denied claim of entitlement to service connection.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

II. New and Material Evidence

Unappealed rating actions of the RO are final.  38 U.S.C.A. � 7105.  In order to reopen a claim there must be added to the record "new and material evidence."  38 U.S.C.A. � 5108.

New and material evidence must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  A claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. � 3.156(b).  Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

The appellant did not appeal the June 2007 rating decision that denied service connection for a left foot disability or submit any additional evidence during the appeal period.  That decision was the last time the appellant's claim was finally disallowed on any basis.  See Glynn v. Brown, 6 Vet. App. 523 (1994).  Thus, the June 2007 rating decision is final.  38 C.F.R. � 20.1100.

The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. � 3.156(a).

The credibility of the evidence is presumed for the purpose of reopening.  Justus v. Principi, 3 Vet. App. 510 (1992).  Whether new and material evidence is submitted is also a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened.  Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996).  Proper analysis of the question requires a determination of whether the claim should be reopened and, if so, an adjudication on the merits after compliance with the duty to assist.

III.  Analysis

The evidence of record as of the June 2007 RO decision included the Veteran's service treatment records and VA treatment records.  The RO denied the claim because the record failed to show that any currently diagnosed foot condition was "medically related to or linked to [the Veteran's] military service."

Evidence received since the June 2007 RO decision includes more VA treatment records.  Beginning in November 2006, the Veteran has complained of, and received treatment for, a left foot condition at the Dublin VA Medical Center.  This treatment includes surgery on his left foot in October 2007.

The Board finds that the additional VA treatment records are new evidence, as they are not cumulative or redundant and were not previously considered.  The evidence is also material because it relates to an unestablished fact and supports the Veteran's claim for service connection by showing that the Veteran may have a current diagnosis of a left foot condition.  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low; the Board finds that the threshold is met and that VA's duty to assist is triggered.

As new and material evidence has been received, reopening of the claim for entitlement to service connection for a left foot disability is warranted.

De novo review of the claim is addressed in the remand below.

IV.  Withdrawal of Appeal

At the April 2014 Board hearing, the Veteran indicated that he wished to withdraw from appellate consideration his claim of entitlement to service connection for insomnia.  The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. � 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. � 20.204.

The Board finds that the Veteran's April 2014 statement indicating his intention to withdraw his appeal of service connection for insomnia satisfies the requirements for the withdrawal of a substantive appeal.  See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993).

As the Veteran has withdrawn his appeal as to the claim of entitlement to service connection for insomnia, there remains no allegation of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal of that issue and it is dismissed.

ORDER

As new and material evidence has been submitted, the issue of entitlement to service connection for a left foot disability is reopened and to that extent the claim is granted.

The appeal of the issue of service connection for insomnia is dismissed.

REMAND

The Board finds that remand of the Veteran's claim for service connection for a left foot disability is necessary in order to obtain a VA examination with an adequate medical nexus opinion.

VA is obliged to provide an examination and a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. � 5103A(d).  The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  The threshold for getting an examination is low.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

At the Board hearing, the Veteran claimed that he experienced foot pain during service in Afghanistan in 2005-2006 as a result of jumping in and out of trucks onto gravel when he worked as a mechanic.  He claimed that he did not seek medical treatment while in Afghanistan.  However, he claimed that when he was released from active duty in May 2006, he quickly sought treatment at VA.  The Veteran has had treatment for left foot problems since that time.  Therefore, there is medical evidence that he has a current left foot condition and there is lay evidence that he experienced a problem in service.

The Veteran was afforded a VA examination in November 2006.  He was diagnosed with: 1) bilateral plantar fasciitis; 2) bilateral mild hammer toe deformity of the lesser toes (2-5); and 3) hyperkeratosis of the great toes and the ball of the left foot.  The examination report noted that X-rays showed no evidence of heel spur.  They did show "congenital webbing of the left second, third, and fourth metatarsals."  The examiner noted that there was "no history of trauma."  However, VA treatment records from the Dublin VA Medical Center also dated in November 2006, discussed X-ray imaging showing "old, healed fractures of the left second, third, and fourth metatarsals."  A staff physician, not the same person listed as the VA examiner, made the report.  The report also noted that the "fractures have healed with overriding at the fracture site, resulting in shortening of the second through fourth digits.  Additionally, bridging bone formation between the middle third of the third and fourth metatarsals has resulted in fusion."  Neither of the reports offered an opinion on etiology.  Also, the Veteran underwent surgery on his left foot in October 2007 at the Dublin VAMC.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to determine the etiology and time of onset of any diagnosed left foot disability.  The entire claims file, including this remand, should be made available to the examiner for review.

Additionally, inform the Veteran that pursuant to 38 C.F.R. � 3.655, failure to report for an examination in conjunction with the reopened claim may result in a denial on the merits insofar as the claim will be decided on the evidence of record.

Based on the examination and review of the record, the examiner should answer the following question:

Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a left foot condition, and, if so, whether the condition had its clinical onset during active duty service or is related to any in-service disease, injury or event.  The examiner must comment on the X-ray findings from the November 2006 VA examination and the November 2006 VA treatment records.  The examiner must also comment on the left foot surgery the Veteran underwent in October 2007.

The examiner should set forth the complete rationale for all opinions expressed and conclusions reached.

Note: if the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made.

2.  Thereafter, readjudicate the claim on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), and given an opportunity to respond, before the case is returned to the Board.

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 Supp. 2013).

______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: S L KENNEDY

disposition: remanded

text:
Citation Nr: 1429000
Decision Date: 06/26/14    Archive Date: 07/03/14

DOCKET NO.  12-12 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1. Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicides.

2. Entitlement to service connection for erectile dysfunction, to include as secondary to Parkinson's disease.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

D. Martz Ames, Counsel

INTRODUCTION

The Veteran had active service from August 1961 to August 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran testified at a hearing in September 2013 before the undersigned.  A copy of the transcript has been placed in the Virtual VA paperless claims processing system.  The record was held open for an additional 60 days so the Veteran could submit additional evidence, but none was received.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

The evidence of record indicates that the Veteran may have Parkinson's disease.  In his June 2011 claim, a July 2011 statement, and at his September 2013 hearing, the Veteran stated that he receives treatment at the Audie Murphy VA Medical Center (VAMC) in San Antonio, Texas.  At his personal hearing, he indicated that he had a confirmed diagnosis of Parkinson's disease.  The RO must obtain his VA treatment records.  The Veteran asserts that while he was serving aboard the USS Kitty Hawk (CVA-63), he was exposed to herbicides while working on or near aircraft that had been in the Republic of Vietnam.  For completeness of the record, while the case is on remand, the RO should place a copy of the Joint Services Records Research Center (JSRRC) memorandum regarding exposure to herbicides from aircraft that had been in the Republic of Vietnam in the Veteran's claims file, as set forth in VA's Adjudication Procedures Manual, M21-1MR at IV.ii.2.C.10.l.  See Training Letter (TL) 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era (Sept. 9, 2010).

Because the Veteran asserts that his erectile dysfunction is caused by his Parkinson's disease, the issue is inextricably intertwined with the issue of whether he is entitled to service connection for Parkinson's disease.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009).

Accordingly, the case is REMANDED for the following action:

1. Attempt to obtain any outstanding VA treatment records that may exist, including, but not limited to, those from the Audie Murphy VAMC.  Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile.  If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. � 3.159(e) (2013).

2. Place a copy of the JSRRC memorandum regarding exposure to herbicides from aircraft that had been in the Republic of Vietnam in the Veteran's claims file, as set forth in VA's Adjudication Procedures Manual, M21-1MR at IV.ii.2.C.10.l.

3. The RO must review the claims file and ensure that the foregoing development actions have been completed in full.  If any development is incomplete, appropriate corrective action must be implemented.

4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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 Supp. 2013).

_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2013).


judge_norm: MICHAEL E KILCOYNE

disposition: denied

disposition: granted

condition: erectile

condition: eye

condition: radiculopathy

condition: knee

text:
Citation Nr: 1431000
Decision Date: 07/10/14    Archive Date: 07/15/14

DOCKET NO.  11-18 145	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for sleep apnea.

2.  Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II.

3.  Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus type II.

4.  Entitlement to service connection for chloracne.

5.  Entitlement to service connection for bilateral cataracts, to include as secondary to service-connected diabetes mellitus type II.

6.  Entitlement to service connection for hyperlipidemia.

7.  Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to service-connected diabetes mellitus type II.

8.  Entitlement to a rating in excess of 20 percent for diabetes mellitus type II.

9.  Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity.

10.  Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity.

11.  Entitlement to an effective date earlier than October 11, 2011 for the assignment of a compensable rating for peripheral neuropathy of the right and left lower extremities.

12.  Entitlement to an effective date earlier than October 29, 2012 for the grant of service connection for status post left total knee replacement.

13.  Entitlement to a temporary total rating due to convalescence for left total knee replacement.

ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1968 to March 1971, with combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge and the Purple Heart Medal.

These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010, December 2011, May 2012, and March 2013 rating decisions by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO).

In April 2014 correspondence, the Veteran raised entitlement to service connection for a lumbar spine disability (secondary to his service-connected left knee disability) and an increased rating for his PTSD.  As these matters have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. � 19.9(b) (2013).

The issues of service connection for sleep apnea (de novo) and hypertension, as well as entitlement to an increased rating for diabetes and peripheral neuropathy of the left lower and right lower extremities, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

1.  An unappealed February 2008 rating decision denied the Veteran service connection for sleep apnea, based essentially on a finding there was no current evidence of a disability related to his active service; an unappealed April 2009 rating decision continued to deny the claim.

2.  The competent evidence received since the February 2008 rating decision, and April 2009 rating decision, does not relate to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea, and does not raise a reasonable possibility of substantiating the claim.

3.  Resolving all doubt in favor of the Veteran, the evidence of record reflects it is at least as likely as not that the Veteran's erectile dysfunction is aggravated by his service-connected diabetes mellitus.

4.  It is not shown that the Veteran has, or during the pendency of this claim has had, chloracne or other acneform disease consistent with chloracne.

5.  Bilateral cataracts were not manifested in service or in the first postservice year, and the preponderance of the evidence is against a finding that the Veteran's current bilateral cataracts are related to an event, injury, or disease in service, or are caused or aggravated by his service-connected diabetes mellitus type II.

6.  The Veteran is not shown to have an underlying disability entity manifested by hyperlipidemia/high cholesterol levels.

7.  It is not shown that the Veteran has, or during the pendency of this claim has had, peripheral neuropathy of the upper extremities.

8.  The Veteran's claim for an increased rating for his peripheral neuropathy of the right and left lower extremities was received on October 11, 2011.

9.  In a December 2011 rating decision, the Veteran was granted a (10 percent) compensable rating for peripheral neuropathy of the right and left lower extremities, with an effective date of October 11, 2011, the date the Veteran's claim for an increased rating was received; the record includes no pending claims for an increased rating, whether formal or informal, prior to October 11, 2011.

10.  Unappealed January, March and May 2006 rating decisions denied the Veteran service connection for a left knee disability; February 2008 and July 2011 rating decisions continued the denial.

11.  After the July 2011 rating decision, the first communication from the Veteran expressing intent to reopen a claim of service connection for a left knee disability was received on October 29, 2012.

12.  The Veteran underwent left total knee replacement in May 2011.

13.  Service connection for status post left total knee replacement was granted by a March 2013 rating decision, effective October 29, 2012.

CONCLUSIONS OF LAW

1.  The February 2008 and April 2009 rating decisions denying the claim for service connection for sleep apnea are final.  38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. � 3.104 (2013).

2.  New and material evidence has not been received to reopen the claim of service connection for sleep apnea.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156(a) (2013).

3.  The criteria for service connection for erectile dysfunction are met.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.310 (2013).

4.  The criteria for service connection for chloracne have not been met.  38 U.S.C.A. �� 1110, 1116, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309 (2013).

5.  The criteria for service connection for bilateral cataracts have not been met.  38 U.S.C.A. �� 1110, 1116, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310 (2013).

6.  The criteria for service connection for hyperlipidemia have not been met.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R. �� 3.303, 4.1 (2013).

7.  The criteria for service connection for peripheral neuropathy of the upper extremities have not been met.  38 U.S.C.A. �� 1110, 1116, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309 (2013).

8.  The criteria for an effective date prior to October 11, 2011, for the assignment of a compensable rating for peripheral neuropathy of the right and left lower extremities have not been met.  38 U.S.C.A. � 5110 (West 2002); 38 C.F.R. �� 3.102, 3.155, 3.156, 3.157, 3.400 (2013).

9.  The criteria for an effective date earlier than October 29, 2012, for a grant of service connection for status post left total knee replacement have not been met.  38 U.S.C.A. �� 5108, 5110, 7105 (West 2002); 38 C.F.R. �� 3.156, 3.400 (2013).

10.  The criteria for a temporary total rating due to convalescence for status post left total knee replacement in May 2011 are not met.  38 U.S.C.A. �� 1155, 5107(b); 38 C.F.R. �� 3.102, 4.30 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 512; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claims.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In this decision, the Board grants service connection for erectile dysfunction.  In addition, regarding the claim for service connection for hyperlipidemia, as indicated below, hyperlipidemia is merely a laboratory finding and not a disability for which VA benefits may be paid, so no development of that issue is warranted.  As such, no discussion of VA's duty to notify and assist is necessary regarding these matters.

Regarding the earlier effective date claims, the United States court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  As such, no discussion of VA's duty to notify is necessary regarding these matters.

Regarding the temporary total rating based on convalescence due to left knee surgery, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).

Regarding the claim to reopen the sleep apnea service connection claim and the claims for service connection for bilateral cataracts, chloracne, and peripheral neuropathy of the right and left upper extremities, the VCAA duty to notify was satisfied by way of July 2010 and November 2011 letters.  The Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error).

VA also has a duty to assist the Veteran in the development of his claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues has been obtained.  The Veteran's service treatment records, VA and private treatment records, and lay statements have been obtained.  The Veteran had VA examinations in November 2011 and January 2012 for his cataracts and upper extremity peripheral neuropathy claims.  For reasons discussed below, the Board finds that the examinations are adequate for the purpose of deciding the claim on appeal decided herein.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board observes that the Veteran was not afforded a VA examination regarding his claim for chloracne, but none is required because there is no competent evidence of chloracne or other acneform disease consistent with chloracne.  As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required.

B. Legal Criteria, Factual Background and Analysis

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in VA's electronic data storage system with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

New and Material Claim

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. � 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. � 5108.

"New" evidence means existing evidence not previously submitted to agency decisionmakers.  "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(a).  In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The provisions of 38 U.S.C.A. � 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273 (1996).

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, 121 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.

Historically, a February 2008 rating decision denied the Veteran's claim for service connection for sleep apnea, essentially based on a finding there was no current evidence of a disability related to his active service.  He did not appeal this decision, and no additional evidence pertinent to the issue was associated with the claims file within the appeal period.  See 38 C.F.R. � 38 C.F.R. � 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Accordingly, the February 2008 rating decision is final.  38 U.S.C.A. � 7105; 38 C.F.R. �� 3.104, 20.302, 20.1103.  Such decision was continued in an unappealed April 2009 rating decision.

Since the February 2008 and April 2009 rating decisions, the Veteran has submitted correspondence expressing his belief that his sleep apnea is secondary to his service-connected PTSD.  As he is not competent to express a probative medical opinion such as this, and there is no other evidence suggesting this theory of entitlement has any medical validity, it is not sufficient to reopen the claim.

Service Connection Claims

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. � 1110; 38 C.F.R. �� 3.303, 3.304.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. � 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).

In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. � 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. � 3.304(d) (2011), are applicable.  This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence.  If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The Veteran's DD Form 214 shows that the Veteran has been awarded the Purple Heart Medal and the Combat Infantryman Badge, so 38 U.S.C.A. � 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. � 3.304(d) (2011), are applicable.

Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury.  38 C.F.R. � 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

With regard to herbicide exposure, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962 to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C.A. � 1116(a)(3); 38 C.F.R. � 3.307(a)(6)(iii).  The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period.  38 C.F.R. � 3.307.  For these Vietnam War veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A. � 1116; 38 C.F.R. �� 3.307, 3.309.

The list of diseases associated with exposure to certain herbicide agents includes chloracne or other acneform disease consistent with chloracne, and early-onset peripheral neuropathy.  38 C.F.R. � 3.309(e).

Even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran.  See id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Erectile Dysfunction

The evidence of record, including November 2007, November 2011 and April 2012 VA examination reports, reflect diagnoses of erectile dysfunction.  The Veteran is also service-connected for diabetes mellitus.  What remains to be established is whether the Veteran's erectile dysfunction was caused or aggravated by his service-connected diabetes mellitus.

On November 2007 VA examination, the Veteran reported he has had erectile dysfunction for approximately the past three years, and that his private primary care doctor has prescribed Viagra.  It was noted he has been diabetic since September 2006.  The examiner opined that the erectile dysfunction started three years ago, the diabetes started about one year ago, and therefore the erectile dysfunction cannot be attributed to his diabetes.  It was also opined the Veteran has hypotestosteronism which is at least as likely as not contributing to the erectile dysfunction.

On November 2011 VA examination, it was opined that the etiology of the Veteran's erectile dysfunction was multifactorial as it was due to his diabetes mellitus, low testosterone and his hypertension, but the examiner concluded that it was not at least as likely as not the Veteran's erectile dysfunction was due to his diabetes mellitus.

On April 2012 VA examination, it was again opined that the etiology of the Veteran's erectile dysfunction was multifactorial due to the presence of his hypogonadism (low testosterone), diabetes mellitus and hypertension.  In contrast to the November 2007 and November 2011 examiners however, the April 2012 examiner found that although the erectile dysfunction predates the diabetes mellitus, it was at least as likely as not the Veteran's erectile dysfunction was aggravated by his diabetes mellitus because he had to add testosterone to his erectile dysfunction medication for satisfactory response.

Hence, based on the evidence provided and resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for erectile dysfunction, as aggravated by his service-connected diabetes mellitus, is warranted.  See 38 C.F.R. �� 3.303, 3.310; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Chloracne

As noted above in the Introduction, the Veteran's active service included service in the Republic of Vietnam during the Vietnam era, and it is conceded that he was exposed to herbicides.

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for chloracne, under any theory of entitlement, as he does not have a current diagnosis, or persistent or recurrent symptoms of a skin disorder related to his military service.

The Board notes that the Veteran's service treatment records reflect that he sought treatment several times for a pruritic rash located on his body and was diagnosed with acute pityriasis rosea.  Notably, on March 1971 service separation medical examination, the Veteran's skin was normal on clinical evaluation, and the Veteran denied having or having had any skin diseases.  Post-service treatment records show no complaints or diagnoses relating to a skin disorder.  See, e.g., March 2007 and April 2009 VA primary care reports (noting there was no evidence of a rash on physical examination or on review of systems).

Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for chloracne.  Given the lack of competent evidence showing that the Veteran has chloracne or other acneform disease consistent with chloracne at present, the claim for chloracne must be denied.  Brammer, 3 Vet. App. at 225.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; Gilbert, 1 Vet. App. at 55-56.

Bilateral Cataracts

The evidence of record, including January 2012 VA examination report, reflect diagnoses of bilateral cataracts.  The Veteran is also service-connected for diabetes mellitus.  What remains to be established is whether the Veteran's bilateral cataracts were caused or aggravated by his service-connected diabetes mellitus, or are otherwise related to his active service.

In this case, there is no evidence that cataracts of either eye were manifested in service or in the initial year following the Veteran's separation from active duty.  Postservice evidence shows the first mention of cataracts in 2010.  See, e.g., May 2010 VA optometry report.  As such, service connection for cataracts in either eye on the basis that it became manifest in service and persisted is not warranted.

Although the Veteran served in Vietnam and thus is presumed to have been exposed to herbicides, cataracts are not listed among the diseases enumerated under 38 C.F.R. � 3.309(e); consequently, the presumptive provisions of 38 U.S.C.A. � 1116 do not apply.

What remains for consideration is whether in the absence of manifestation in service and/or postservice recurrence of symptoms, the Veteran's bilateral cataracts may nonetheless somehow otherwise be related to service.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  Postservice treatment records note the diagnosis of bilateral cataracts, but there is no competent evidence in the record to suggest that such is or may be related to the Veteran's service.  No medical professional has ever suggested that the Veteran's bilateral cataracts were related to his military service, and the Veteran has not presented, identified, or even alluded to the existence of any such medical evidence or opinion.  The matter of a nexus between the Veteran's active service and his current bilateral cataracts is a question that is beyond lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted on a direct basis.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

Notably, the Veteran's theory of entitlement is that his cataracts are secondary to his service-connected diabetes.  The only competent evidence in the record is that of the January 2012 VA examiner's opinion wherein the examiner opined that it was less likely as not that the Veteran's cataracts were caused by or a result of his diabetes mellitus.  The examiner found that the Veteran's cataracts were consistent with normal aging.  Cataracts are multifactorial in nature and the most common cause is aging.  In an effort to address aggravation, the examiner noted that while diabetics can develop cataracts faster than non-diabetic individuals if their blood sugar is poorly controlled for long periods of time, the examiner found that the Veteran has had well-controlled diabetes for only a short period of time (indicating that the Veteran's blood sugar has not been poorly controlled for a long period of time as it was already well-controlled).  Such opinion was provided after review of the Veteran's claims file, interview and physical examination of the Veteran, and was provided by a professional competent to opine as to the etiology of the his bilateral cataracts.  On this basis, the Board finds that the January 2012 VA examination opinion is the most probative evidence of record, and is against the Veteran's claim for service connection for bilateral cataracts.

The weight of the competent medical evidence demonstrates that the Veteran's bilateral cataracts began many years after his active service, and were not caused by any incident of service, to include as due to herbicide exposure or secondary to his service-connected diabetes.  The Board thus finds that the preponderance of the evidence is against his claim for service connection.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Hyperlipidemia

Regarding the Veteran's claim for service connection for hyperlipidemia, the Board notes that this is a laboratory result and not an actual disability for which VA compensation benefits are payable.  See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities.  They are, therefore, not appropriate entities for the rating schedule).  The term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions.  38 C.F.R. � 4.1.  See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995).  A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).

Thus, in this case, while elevated cholesterol (hyperlipidemia) may be a risk factor for disability, it is not itself a disability for VA purposes.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, there is no basis for awarding service connection for hyperlipidemia, and the appeal in this regard is denied.

Peripheral Neuropathy of the Upper Extremities

As noted above in the Introduction, the Veteran's active service included service in the Republic of Vietnam during the Vietnam era, and it is conceded that he was exposed to herbicides.

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for peripheral neuropathy of the upper extremities, under any theory of entitlement, as he does not have a current diagnosis, or persistent or recurrent symptoms of a neurologic disability related to his military service.

The Board notes that the Veteran's service treatment records reflect that he sought treatment in March 1970 for a complaint of right wrist numbness.  Physical examination revealed decreased sensation, and the diagnosis was status post fragment wound - the Veteran was injured in a mortar attack in August 1969 during active service.  Notably, on March 1971 service separation medical examination, the Veteran's neurologic system was normal on clinical evaluation, and the Veteran denied having or having had loss of arm or finger, painful or "trick" shoulder or elbow, neuritis, or paralysis.

Postservice treatment records show no diagnoses relating to peripheral neuropathy of the upper extremities.  Significantly, on November 2011 VA peripheral nerves examination, it was found that the Veteran only had peripheral neuropathy of the lower extremities.  Physical examination revealed normal bilateral upper extremity examination for vibration and monofilament testing.

Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for peripheral neuropathy of the upper extremities.  Given the lack of competent evidence showing that the Veteran has peripheral neuropathy of the upper extremities at present, the claim for such must be denied.  Brammer, 3 Vet. App. at 225.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; Gilbert, 1 Vet. App. at 55-56.

Alternatively, the Board notes that the record reflects that the Veteran has been diagnosed with carpal tunnel syndrome of the upper extremities, for which he underwent carpal tunnel release in April and June 2002.  There is no evidence that carpal tunnel syndrome was manifested in service or in the initial year following the Veteran's separation from active duty.  Postservice evidence shows the first mention of carpal tunnel syndrome in 2002.  See, e.g., March 2002 K.B. Ragsdale.  As such, service connection for carpal tunnel syndrome on the basis that it became manifest in service and persisted is not warranted.

Although the Veteran served in Vietnam and thus is presumed to have been exposed to herbicides, carpal tunnel syndrome is not listed among the diseases enumerated under 38 C.F.R. � 3.309(e); consequently, the presumptive provisions of 38 U.S.C.A. � 1116 do not apply.

What remains for consideration is whether in the absence of manifestation in service and/or postservice recurrence of symptoms, the Veteran's carpal tunnel syndrome may nonetheless somehow otherwise be related to service.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  Postservice treatment records note the diagnosis of bilateral upper extremity carpal tunnel syndrome, but there is no competent evidence in the record to suggest that such is or may be related to the Veteran's service.  No medical professional has ever suggested that the Veteran's carpal tunnel syndrome is related to his military service, and the Veteran has not presented, identified, or even alluded to the existence of any such medical evidence or opinion.  The matter of a nexus between the Veteran's active service and his current carpal tunnel syndrome is a question that is beyond lay observation, and significantly, the Veteran has not alleged that his current carpal tunnel syndrome is related to his active service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted on a direct basis.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

The only competent evidence in the record is that of the November 2011 VA peripheral nerves examiner's opinion wherein the examiner opined that it was most likely as not that the Veteran's carpal tunnel syndrome was due to occupational excessive use of his hands and less likely as not related to his diabetes mellitus.  Such opinion was provided after review of the Veteran's claims file, interview and physical examination of the Veteran, and was provided by a professional competent to opine as to the etiology of the his carpal tunnel syndrome.  On this basis, the Board finds that the November 2011 VA examination opinion is the most probative evidence of record, and is against a claim for service connection for bilateral upper extremity carpal tunnel syndrome.

The weight of the competent medical evidence demonstrates that the Veteran's carpal tunnel syndrome began many years after his active service, and was not caused by any incident of service, to include as due to herbicide exposure or secondary to his service-connected diabetes.  The Board thus finds that the preponderance of the evidence is against a claim for service connection for carpal tunnel syndrome.

Earlier Effective Date Claims

The effective date of an award based on a claim for increase is generally the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. � 5110; 38 C.F.R. � 3.400.  An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim.  38 U.S.C.A. � 5110(b)(2); 38 C.F.R. � 3.400(o)(2).  When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application.  See Hazan v. Gober, 10 Vet. App. 511 (1997).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. � 5101(a); 38 C.F.R. � 3.151(a).  A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. � 3.1(p).  If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. � 3.155.

Furthermore, according to 38 C.F.R. � 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits.  See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  The date on the VA outpatient or hospital examination will be accepted as the date of claim.  38 C.F.R. � 3.159(b).  When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim.  38 C.F.R. � 3.159(b)(2).

A "report of examination or hospitalization" under 38 C.F.R. � 3.157(b) should "indicate that [a] veteran's service-connected disability [has] worsened since the time it was last evaluated."  Massie v. Shinseki, 25 Vet. App. 123, 134 (2011).  Moreover, the term "report of examination" under 38 C.F.R. � 3.157(b) "implies that the medical record in question must describe the results of a specific, particular examination."  A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written."  Massie, 25 Vet. App. at 133.  Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the veteran's general condition, as [the physician] had observed it over" time.  Id.

Compensable Rating for Peripheral Neuropathy of the Lower Extremities

The Veteran's peripheral neuropathy of the lower extremities is rated under Diagnostic Code 7913-8620 for neuritis of the sciatic nerve related to his service-connected diabetes mellitus.  Under Diagnostic Code 8620, mild neuritis with incomplete paralysis warrants a 10 percent rating.  38 C.F.R. � 4.124a.

In every instance where the Rating Schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned where there requirements for a compensable rating are not met.  38 C.F.R. � 4.31.

In this case, the Veteran argues, in essence, that he is entitled to a compensable rating for his peripheral neuropathy of the lower extremities from February 20, 2007 (the date of receipt of his claim for service connection for diabetes mellitus and associated peripheral neuropathy).

An August 2007 rating decision granted service connection for diabetes mellitus type II with peripheral neuropathy, effective February 20, 2007.  The Veteran did not appeal the initial rating for the effective date assigned.  Significantly, the Board finds that VA was not in receipt of new and material evidence relevant to the claim prior to the expiration of the appeal period following the initial grant of service connection.  See 38 U.S.C.A. � 7105; 38 C.F.R. �� 3.104(a), 3.156(b), 3.160(d), 20.201; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).  Therefore, absent clear and unmistakable error (CUE) in the August 2007 determination, the decision is final.  38 U.S.C.A. � 5109A; 38 C.F.R. � 3.105.  Here, the Veteran has not raised a motion of CUE in the August 2007 rating decision.  [The Board notes that the 0 percent rating assigned for the Veteran's peripheral neuropathy of the right and left lower extremities appears to have been based on the fact that while there was evidence suggestive of peripheral neuropathy, further testing (i.e., nerve conduction study testing) was necessary than that conducted on VA examination, and the Veteran failed to appear for such testing.]

The RO received the Veteran's claim for an increased rating for his peripheral neuropathy on October 11, 2011.  A December 2011 rating decision awarded an increased 10 percent rating for each lower extremity, effective October 11, 2011.

Upon reviewing the evidence of record, the Board concludes that the evidence of record does not show that prior to the date of claim his service-connected disabilities had worsened in severity.  As noted above, VA treatment records merely showing treatment are insufficient to constitute an informal claim for increased benefits under 38 C.F.R. � 3.157(b).  As the Court stated in Massie v. Shinseki�25 Vet. App. 123, 134 (2011), such an interpretation of � 3.157(b) would produce an absurd result by unnecessarily burdening VA by requiring it to treat every such medical record as an informal claim for an increased disability rating.  Hence, none of the records constructively of record prior to the date of claim are consistent with an informal claim for increased benefits under 38 C.F.R. � 3.157(b).

Nonetheless, the Board finds that it is critical to discuss a June 18, 2009 VA podiatry treatment report.  The Board finds, as a finder of fact, that such report does not constitute a "report of examination" under 38 C.F.R. � 3.157(b).  Specifically, the treatment record noted the Veteran's complaint of paresthesia and burning in his feet.  The physical examination was very limited, and the only abnormal finding was slightly diminished vibratory testing of the feet.  However, such findings and complaints are consistent with the March 2007 VA examination report that noted the Veteran's complaint of tingling and numbness in the right foot, and a burning sensation in both feet, and was the basis for the award of service connection for peripheral neuropathy.  Moreover, the June 2009 podiatry report made no mention of peripheral neuropathy, and provided assessments of onychomycosis and right hallux valgus.  Hence, the Board finds that an informal claim for increased benefits for the Veteran's service-connected peripheral neuropathy of the lower extremities was not pending as of June 18, 2009.  Thus, an earlier effective date is not assignable based on VA treatment records as an informal claim for increase.  See 38 C.F.R. � 3.157(b); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

In conclusion, the Board finds that a 10 percent disability rating for peripheral neuropathy of each lower extremity did not become factually ascertainable during the applicable time period so as to warrant an effective date earlier than the date of his claim, October 11, 2011, and the claim is denied.

Service Connection for Status Post Left Total Knee Replacement

Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. � 5110(a).  The implementing regulation states that the effective date of an evaluation and an award of compensation based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later."  38 C.F.R. � 3.400(r).

In April 2005, the Veteran filed an original claim for service connection for a left knee disability, and January, March and May 2006 rating decisions denied the claim.  He did not file a timely notice of disagreement with any determination or submit new and material evidence relevant to the claim prior to the expiration of the appeal period following the May 2006 rating decision.  Hence the January, March and May 2006 rating decisions are final based on the evidence of record at the time of their issuance.

In September 2007, the Veteran filed a request to reopen a claim of service connection for a left knee disability; a February 2008 rating decision denied the claim.  The Veteran did not appeal the February 2008 rating decision, and it became final.
On March 2011, the Veteran filed a request to reopen a claim of service connection for a left knee disability; a July 2011 rating decision denied that claim.  The Veteran did not appeal the July 2011 rating decision, and it became final.

On October 29, 2012, the Veteran again filed a request to reopen a claim of service connection for a left knee disability; a March 2013 rating decision granted service connection for status post left knee replacement, effective October 29, 2012 (the date of receipt of the most recent claim to reopen).

The Board's January, March and May 2006 rating decisions, denying the Veteran's original claim for service connection for a left knee disability, are final based on the evidence of record at the time, and are not subject to revision in the absence of clear and unmistakable error (CUE).  See 38 U.S.C.A. �� 5109A, 7105; Rudd v. Nicholson, 20 Vet. App. 296 (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision).  The Veteran has not filed a motion alleging CUE in the January, March and May 2006 rating decisions.  Therefore, the January, March and May 2006 rating decisions are a legal bar to an effective date prior to the date of those decisions.

Furthermore, the Veteran's requests (in September 2007 and March 2011) to reopen the claim of service connection for a left knee disability were denied by February 2008 and July 2011 rating decisions, respectively.  Because he did not appeal these decisions, they also became final (and are legal bars to an earlier effective date).

The date of receipt of the instant claim to reopen is October 29, 2012.  There is no evidence or correspondence in the record that was received between the July 2011 rating decision and the October 29, 2012 claim to reopen.  Therefore, the October 29, 2012 (the date of the reopened claim) is the earliest possible (and appropriate) effective date for the grant of service connection for status post left total knee replacement, in accordance with 38 U.S.C.A. � 5110(a) and 38 C.F.R. � 3.400(r).

Accordingly, as a matter of law, the appeal seeking an effective date prior to October 29, 2012, for the grant of service connection for status post left total knee replacement must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

Temporary Total Rating for Left Total Knee Replacement

A total disability rating will be assigned effective from the date of a hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more.  See 38 C.F.R. � 4.30(a).

The Veteran underwent left total knee replacement on May 26, 2011, with a subsequent convalescent period.  As defined by 38 C.F.R. � 4.30(a), entitlement to a temporary total rating is available only when the hospital admission or outpatient visits involve treatment for a service-connected disability.  As service connection was only granted as of October 2012 (the date of the Veteran's claim), and this decision found that such was the proper effective date, service connection was not in effect at the time of the surgery and convalescence in May 2011.  Thus, there is no legal basis for entitlement to a temporary total rating for treatment in May 2011.

The Board notes that the Veteran's left knee disability is rated under Diagnostic Code 5055 for prosthetic replacement of the knee joint.  Under Diagnostic Code 5055, a 100 percent rating is warranted for one year following knee replacement surgery.  Unfortunately, such is not applicable to the Veteran's case as he was not service connected for his left knee disability at any period for the one year following his left total knee replacement.  Hence, the RO properly found that he was not entitled to a 100 percent rating for his left knee for any period following his knee replacement surgery under Code 5055.

Assignment of a temporary total rating is a rating issue, not a separate benefit, of the underlying claim for service connection.  38 C.F.R. �� 4.29, 4.30.  Service connection for the Veteran's left knee and its residuals was granted effective the date of his October 2012 claim.  Because a temporary total rating can only be assigned for service-connected disabilities, as well as a 100 percent rating under Diagnostic Code 5055, and service connection for his left knee disability was not in effect at the time of the Veteran's May 2011 surgery and subsequent convalescence, his claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Where the law is dispositive, the benefit of the doubt provisions are not for application.  38 U.S.C.A. � 5107(b).

ORDER

New and material evidence not having been received, the claim for service connection for sleep apnea is not reopened, and the appeal is denied.

Service connection for erectile dysfunction is granted.

Service connection for chloracne is denied.

Service connection for bilateral cataracts is denied.

Service connection for hyperlipidemia is denied.

Service connection for peripheral neuropathy of the upper extremities is denied.

Entitlement to an effective date earlier than October 11, 2011, for the assignment of a compensable rating for peripheral neuropathy of the right and left lower extremities is denied.

Entitlement to an effective date earlier than October 29, 2012, for the award of service connection for status post left total knee replacement is denied.

Entitlement to a temporary total rating due to convalescence for left total knee replacement in May 2011 is denied.

REMAND

After careful review of the record, the Board finds that the Veteran's claims for service connection for hypertension, and for increased ratings for diabetes and right and left lower extremity peripheral neuropathy, must be remanded for further development.

As to the claim of service connection for hypertension, the Veteran was provided a VA examination in December 2012.  The Veteran reported on examination that a private provider, Dr. B. Evans, started him on hypertension medication in 2005.  Records of Dr. B. Evans are not associated with the claims file, and should be sought.

In addition, the VA examiner opined that the Veteran's hypertension was less likely as not proximately due to or a result of his diabetes mellitus as the Veteran's hypertension is essential and there is no evidence of diabetic nephropathy or renal insufficiency that could cause hypertension.  However, the examiner did not adequately opine as to whether the hypertension was aggravated by his service-connected diabetes mellitus.  In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability.  Here, because there is no medical opinion addressing the aggravation aspect of the Veteran's hypertension claim, the Board finds that soliciting such an opinion is necessary to adjudicate this appeal.

Regarding the increased rating claims for diabetes and associated peripheral neuropathy of the lower extremities, the Veteran was last afforded VA examinations in November 2011.  In November 2013 correspondence, the Veteran stated that his conditions were much worse since the last examination.  Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his diabetes and associated peripheral neuropathy of the lower extremities.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995).  Thus, these issues must be remanded.

Finally, as the claims file is being returned, it should also be updated to include recent, relevant VA treatment records dating from June 2013.  38 U.S.C.A. � 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1. The RO should physically or electronically associate with the claims file VA treatment records pertaining to the Veteran's hypertension, diabetes and associated bilateral lower extremity peripheral neuropathy, that are dated from June 2013.  Any additional pertinent records identified during the course of the remand should also be obtained (particularly Dr. B. Evans for his hypertension since 2005, identified in his December 2012 VA examination), following the receipt of any necessary authorizations from the Veteran.

2. The RO should forward the Veteran's claims file to the December 2012 VA examiner, or if the examiner is no longer available, a suitable replacement, for an addendum opinion.  The claims file should be reviewed by the examiner.

The examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension was aggravated (i.e., permanently worsened) as a result of his service-connected diabetes mellitus.  If the examiner finds that the hypertension was aggravated by his diabetes mellitus, the examiner should indicate the degree of disability due to the aggravation.

3. Obtain a VA examination to determine the current severity of the Veteran's service-connected diabetes mellitus and associated peripheral neuropathy of the lower extremities.  The claims file should be made available and reviewed by the examiner.  All indicated studies and tests should be completed, and clinical findings should be reported in detail.

The examiner is asked to assess and discuss the severity of the Veteran's service-connected peripheral neuropathy of the lower extremities, and report whether the neuropathy symptomatology is best characterized as "mild," "moderate," "moderately severe," or "severe."

The examiner should explain the rationale for all opinions expressed.

4. Then readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case and given a reasonable opportunity to respond.

The appellant has the right to submit additional evidence and argument on the 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 Supp. 2013).

______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHAEL D LYON

text:
Citation Nr: 1501000
Decision Date: 01/08/15    Archive Date: 01/13/15

DOCKET NO.  08-07 300	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas

THE ISSUE

Entitlement to service connection for hallux valgus.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

WITNESSES AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1971 to September 1973.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.

In June 2009, November 2011, July 2013, November 2013, and June 2014, the Board remanded the claim for additional development.  The issue is, once again, before the Board for adjudication.

This appeal was processed using the Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case should include consideration of these electronic records.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

While the Board regrets the further delay in adjudication of the issue on appeal, there has not been substantial compliance with the prior remand directives.  The United States Court of Appeals for Veterans Claims has held that if the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Board therefore stresses the importance that the following directives be carefully followed, in order to allow for a final resolution of this issue.

In November 2011, this issue was remanded in order to obtain a VA examination and medical opinion regarding the relationship of the Veteran's hallux valgus to service, including consideration of a June 2007 VA opinion which stated that the Veteran's flexible pes planus contributed to his hallux valgus deformity.  In July 2013, this issue was again remanded because the VA examiner had failed to provide any nexus opinion, and the RO failed to include the issue in its supplemental statement of the case.  While subsequent medical opinions were then obtained after further remand, these opinions failed to address the questions posited by the Board or to adequately consider the Veteran's credible lay statements of having foot problems in service and continuously since that time.

An opinion was most recently obtained by a physician in September 2014.  Unfortunately, this opinion is also inadequate for adjudicating the claim.  The Board's prior remand very clearly requested that the opinion be written by a podiatrist, and not a general physician.  The prior remand also discussed that an opinion is inadequate when it holds that the absence of clinical evidence is the sole factor in concluding that there is a lack of relationship between current disability and service.  The September 2014 opinion provided no rationale for its finding that hallux valgus is not related to service other than that the "etiology of hallux valgus is multifactorial," although no possible other factors are provided, and that there were no records of treatment for hallux valgus in service.  While the September 2014 examiner mentioned that an examination was given in 2007, he also failed to discuss the findings of the June 2007 examination, as has been previously directed.

Accordingly, the case is REMANDED for the following action:

1.  Obtain an opinion from a VA PODIATRIST.  The podiatrist must be given access to all records contained in Virtual VA and VBMS, and a notation must be made that review of all records has been accomplished.  (If it is determined that a response to these questions cannot be entered without additional examination, such examination should be scheduled.)  After a thorough review of the medical history, the podiatrist is requested to prepare an addendum opinion which addresses the following:

(a) Is it at least as likely as not (50 percent probability or more) that the Veteran's hallux valgus is related to any event or injury during his service?  In offering this opinion, the podiatrist should specifically consider the Veteran's testimony that he experienced symptoms of foot pain during service and continuing to the present day, even though he did not seek treatment for it for many years.

(b) The podiatrist should discuss whether it is as likely as not that the Veteran's pes planus led to the development of hallux valgus during his service and whether there is any medical evidence indicating that the development of hallux valgus occurred after separation from service.  The examiner must also specifically discuss the findings of the June 2007 VA examiner that "flexible pes planus has resulted in progressing to the hallux valgus deformity that [the Veteran] currently has."

(c) Is it at least as likely as not that the Veteran's hallux valgus was aggravated (permanently worsened beyond the natural progression) by his service-connected hammertoes?  If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation.

It is pointed out to the examining podiatrist that the Veteran is competent to report on his own symptomatology, including symptoms of foot pain.  These lay statements must be considered, and a complete rationale should accompany any opinion provided.

If the podiatrist cannot provide an opinion, he/she must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered.

If it is concluded by the podiatrist that a new examination is indicated, the Veteran must be scheduled for a new VA examination with a podiatrist examiner who must address the questions above.

If a VA examination is scheduled, the Veteran must be given adequate notice of the date and place of the examination.  A copy of all notifications must be associated with the claims folder.  He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on the claim.  38 C.F.R. � 3.655 (2014).

2.  The AOJ must ensure that the opinion report fully complies with this remand and the questions presented in the request.  The AOJ must ensure that the examiner documented consideration of all records and that all additional requested actions have been accomplished (to the extent possible) in compliance with this remand.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall, 11 Vet. App. 268.

3.  Thereafter, the AOJ should readjudicate the claim.  If the benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter 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).

_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).


text: 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).

text:
Citation Nr: 1503000
Decision Date: 01/22/15    Archive Date: 01/27/15

DOCKET NO.  08-23 560	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona

THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disorder.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Ryan Frank, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1986 to August 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Accordingly, any future consideration of the appellant's case should be applied to those electronic records.

It is noted that the only issue certified to the Board is the one listed on the title page.  Review of the electronic records suggests that there are approximately 24 or 25 other issues that have been the subject of a statement of the case, a substantive appeal, and subsequent supplemental statements of the case.  Thus, they would appear to be within the Board's jurisdiction.  They are not indicated as being in an electronic file in VACOLS tracking system, so it is unclear if there is an additional folder or additional development going on at the RO.  That should be clarified prior to the conduct of any hearing.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

In May 2012, shortly after receiving a supplemental statement of the case from the RO, the Veteran requested a videoconference hearing before the Board.  He has made similar requests in other documents that include the issue cited on the title page.  His representative has also highlighted that request in a presentation made to the Board.  No action has been taken on that request.  A remand is therefore necessary to schedule the requested hearing.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a videoconference hearing in accordance with applicable procedures.  If he decides that he no longer desires such a hearing, he should so indicate in writing to the RO/AOJ.

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).

_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).