Citation Nr: 0841738 Decision Date: 12/04/08 Archive Date: 12/17/08 DOCKET NO. 97-20 435A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea/insomnia. 2. Entitlement to service connection for chloracne as secondary to herbicide exposure. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for peripheral neuropathy as a result of exposure to herbicides. 5. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. 6. Entitlement to an effective date earlier than February 14, 1994 for the grant of service connection for PTSD. 7. Entitlement to an effective date earlier than February 14, 1994 for the grant of service connection for a back disability. 8. Entitlement to an effective date earlier than August 16, 1994 for basic eligibility to Dependents' Educational Assistance under 38 U.S.C.A. chapter 35. 9. Entitlement to a rating for post-traumatic stress disorder (PTSD) in excess of 30 percent earlier than August 16, 1994. 10. Entitlement to a rating in excess of 60 percent for a back disability. 11. Entitlement to a rating in excess of 30 percent for tinea versicolor. REPRESENTATION Veteran represented by: Richard Rhea - Attorney WITNESS AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to August 1969. This matter arose out of an appeal initially perfected in 1997. More issues were subsequently perfected. The veteran, however, withdrew the issue of entitlement to an effective date earlier than August 16, 1994 for the grant of special monthly compensation (SMC) based on housebound status in document that was received in July 2007. This decision grants an earlier effective date for service connection for the veteran's back disability. As an appellate body, the Board may not assign a disability rating in the first instance. Therefore, the issue of how to rate the veteran's service connected back disability from December 1989 to February 1994 is referred to the RO for appropriate action, and we will DEFER the determination as to the issue of entitlement to a rating in excess of 60 percent for his back. Similarly, since eligibility for Dependents' Educational Assistance (DEA) is contingent on a veteran's service connected disability ratings, consideration of an earlier effective date for DEA is DEFERRED, pending the RO's rating of the veteran's back disability. The issue of a rating in excess of 30 percent for tinea versicolor is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's insomnia is a symptom of another disorder. 2. The medical evidence fails to relate the veteran's sleep apnea to his time in service. 3. The evidence fails to show that the veteran has chloracne as a result of his time in service. 4. The medical evidence fails to relate the veteran's cervical spine disability to his time in service. 5. The medical evidence fails to relate peripheral neuropathy to the veteran's time in service. 6. The veteran requires the assistance of another person to complete a number of his activities of daily living. 7. The veteran's attempt to reopen his claim of entitlement to service connection for PTSD was properly denied by a June 1990 rating decision that was not appealed. 8. The veteran's request to reopen his claim of entitlement to service connection for PTSD that provided the basis for the grant of service connection was received on February 14, 1994. 9. The grant of service connection for PTSD was not based on service treatment records that had not been previously considered. 10. On December 8, 1989, an informal claim to reopen the veteran's claim of entitlement to service connection for a lower back disability was received. 11. Prior to August 16, 1994, the evidence shows that the veteran's ability to establish or maintain effective or favorable relationships with people was considerably impaired as a result of his PTSD. 12. Prior to August 16, 1994, the evidence fails to show that the veteran's PTSD either severely impaired his ability to establish and maintain effective or favorable relationships with people, or severely impaired his ability to obtain or retain employment. CONCLUSIONS OF LAW 1. Criteria for service connection for sleep apnea/insomnia have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). 2. Criteria for service connection for chloracne, to include as secondary to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 3. Criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). 4. Criteria for service connection for peripheral neuropathy, to include as secondary to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 5. Criteria for special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C.A. §§ 501, 1114, 1115 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2008). 6. Criteria for an effective date earlier than February 14, 1994 for the grant of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 7. Criteria for an effective date of December 8, 1989 for the grant of service connection for a back disability are met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 8. Criteria for a 50 percent rating for PTSD prior to August 1994 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2008); 38 C.F.R. § 4.132, DC 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service, in a veteran who had active military, naval, or air service during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The exclusive list of diseases which are covered by this presumption are: chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy (meaning transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). However, the mere exposure to Agent Orange alone does not create a permanent disability for which compensation may be granted. Sleep apnea/insomnia The veteran testified at a hearing before the Board in July 2008 that he had been receiving treatment for sleep apnea at the Princeton Hospital (Baptist Medical Center) and at VAMC in Birmingham. The veteran stated that he had been using a C-PAP machine to assist him with sleeping for the past 2-3 years; and he attributed his sleep apnea to having to stay awake on guard duty while in Vietnam. In April 2008, the veteran asserted that his sleep apnea and insomnia were the result of exposure to chemicals while service in the Republic of Vietnam. On the veteran's medical history survey, completed at separation, the veteran indicated he was having frequent trouble sleeping, but no disability was ascribed to this compliant by a medical officer, and no sleeping disorder was detected by his separation physical. Service treatment records are otherwise silent for any report of sleeping problems. The veteran was noted to have insomnia by a private doctor, Dr. Cain, in June 1984, which was attributed to his psychiatric symptomatology. In May 1985 the veteran reported that he had frequent nightmares that resulted in him waking up screaming. The veteran indicated that he was unable to sleep many nights because of these nightmares. The doctor attributed the nightmares to the veteran's time in Vietnam and to his diagnosis of PTSD. Dr. Cain again noted insomnia in May 1987, but no additional sleep problems were noted. In June 1995, the veteran complained of trouble sleeping on account of pain; and, in September 1997, he complained of having insomnia to his private doctor. In December 2002, the veteran was noted to have a past medical history that included questionable obstructive sleep apnea, although no sleep apnea was discussed in conjunction with the physical examination. In August 2005, VA prescribed a CPAP machine to treat the veteran's sleep apnea. In an August 2007 VA treatment record, the doctor indicated that from the stand point of PTSD, the veteran continued to endorse nightmares, and sleep disturbances (night sweats, thrashing in sleep and problems staying asleep). While the veteran reported sleeping problems at separation, since then, his complaint has been attributed to pain, or nightmares related to Vietnam. In other words, it is a symptom of something else, most notably PTSD, rather than a disability itself. As such, a basis upon which to grant service connection for insomnia has not been presented. With regard to the veteran's diagnosed sleep apnea, there is no evidence of it appearing in service, and the first mention of it appears around 2002, more than 30 years after the veteran was discharged from service. While the veteran believes that his sleep apnea is related to his time in service, he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). As such, his opinion is insufficient to provide the requisite nexus between his sleep apnea and his time in service. Furthermore, the veteran's claims file is void of a medical opinion of record even suggesting that there might be a link between the veteran's sleep apnea and his time in service. Therefore, the criteria for service connection have not been met with regard to either insomnia or sleep apnea; and the veteran's claim is therefore denied. Chloracne as secondary to herbicide exposure The veteran stated in April 2008 that chloracne and skin problems manifested while he was in Vietnam, and that since serving in Vietnam his skin was oily and darker. The veteran underwent a VA examination of his skin in October 1970 where he reported noticing an eruption of his face while in service which was itchy and depigmented. The examination revealed superficially scaly, discrete, and confluent areas on the upper chest and back; and the veteran was diagnosed with tinea versicolor. Based on this examination, the veteran was granted service connection for tinea versicolor by a December 1970 rating decision. The next skin related record did not appear for more than a decade when the veteran underwent a VA skin examination in December 1982. At the examination, it was noted that the veteran had a significant history of tinea infection which he had gotten in Vietnam and never completely cleared. The doctor found that the veteran had a rash on his chest, arms, and lower extremities, which the doctor suggested was tinea. It was also noted that dermatology had been consulted and they felt that the veteran had tinea versicolor and tinea pedis. No chloracne was noted. In a July 1984 dermatology note, the veteran was described as having discolored macular areas, pruritic, with small papular lesions, which was diagnosed as tinea versicolor. It was also noted that the veteran had a history of acne. In November 1988, the veteran sought skin treatment from Dr. Walton who specialized in diseases of the skin, hair, and nails. Dr. Walton indicated that the veteran had a rash all over his body and diagnosed the veteran with tinea versicolor, tinea pedis, and follicular cysts on the back. There was no indication that the veteran had any chloracne. In three subsequent treatment records (December 1988, January 1989 and April 1989), Dr. Walton did indicate that the veteran had acne vulgaris, but chloracne was not diagnosed. The veteran underwent a VA examination for his skin in March 1989 at which he was diagnosed with tinea barbae, tinea versicolor, and tinea pedis. There was no mention of chloracne. In July 1989 the veteran was diagnosed with acne. In April 1994, the veteran underwent a VA examination of his skin. The veteran complained that he had oily skin and dilated pores and he reported having acne in the past. The physical examination revealed mild facial acne, and tinea pedis. In 1995 the veteran was hospitalized for PTSD at which time it was noted that the veteran had a pruritic rash. A VA treatment record from September 1997 noted that the veteran had chronic dermatitis. In January 2007, VA treatment records show that the veteran complained of a breakout on his face, back, and neck for years. The examination showed that the veteran had multiple papules on his face, back, and shoulders, and he was assessed with pustular acne and scheduled for a dermatology consultation. In his July 2007 notice of disagreement, the veteran asserted that he had served in Vietnam thereby raising the presumption that he was exposed to Agent Orange, and he stated that he was treated on several occasions for his skin breaking out while he was on patrol. The veteran indicated that he was being treated by VA for chloracne, and he indicated that his daughter also had chloracne as a result of his exposure to herbicides. In McCartt v. West, 12 Vet. App. 164, 167 (1999), a veteran, in support of his claim for service connection for a skin disorder as secondary to Agent Orange exposure, indicated that his skin had manifested boils, blotches, a rash, soreness, and itchiness since 1968; and the Court of Appeals for Veterans Claims (Court) implied that this may be the type of condition lending itself to lay observation and satisfy the nexus requirement, provided medical nexus opinions between appellant's herbicide exposure and current skin condition were supported by evidence of herbicide exposure during service. Id. Furthermore, lay evidence is also considered competent and sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, in this case it is agreed that the veteran had a skin condition at time of discharge from service, as he is service connected for tinea versicolor. The issue is whether his testimony that he had chloracne is probative. The Board finds that it is not, as the veteran is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Additionally, a medical doctor who examined the veteran in 1970 diagnosed him with tinea versicolor; and no medical evidence has been advanced challenging that doctor's diagnosis. Furthermore, while the veteran has asserted that he was exposed to herbicides and should therefore be service connected for chloracne, to have the benefit of presumptive service connection, chloracne must manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307. In this case, there is no medical support for the veteran's contention that he developed chloracne either during service or within the year following service. There is no suggestion of chloracne for many years following service, and no medical opinion has been submitted suggesting that the veteran developed chloracne as a result of herbicide exposure while in service. Therefore, the criteria for service connection have not been met, and the veteran's claim is denied. SMC based on the need for aid and attendance The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 C.F.R. § 3.350. Aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. Special monthly compensation based on the need for aid and attendance, will be awarded based on a consideration of the following: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352. It is not required that all of the disabling conditions listed in the previous paragraph be found to exist before a favorable rating may be made. Rather, the particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. In September 2004, the veteran filed a claim for aid and attendance indicating that he had been housebound from December 2002 to May 2003. The veteran testified at a hearing before the Board in July 2008 that his wife sometimes had to help him dress; and that he often needed assistance getting up out of a chair, bed, or the tub. The veteran also indicated that it was hard for him to stand in the kitchen to cook a meal or wash dishes, and the veteran indicated that he had a hard time driving. The veteran underwent a VA examination in January 2007 at which the examiner found the veteran had a history of neck surgery and multiple low back surgeries. The veteran reported that he was frequently in severe pain, particularly in his back and neck. The examiner indicated that the veteran was living with his wife and needed a lot of assistance. The veteran could wash his face, but could not stand or walk for long. He used a cane, and could only walk 50 to 100 feet at a time and had to take frequent rests. The veteran could not bend or dress. The veteran could drive if essential, but he could not shop and had pain most of the time. The veteran's wife gave him his medication, which he sometimes would forget on his own to take. The veteran could still read small print and his visual acuity is 20/30. The veteran's wife reported that the veteran's memory was impaired and she had been managing the finances for the past 20 years. The veteran was not bedridden. The veteran required assistance to remove his shoes and socks as he had difficulty bending forward. The veteran could get up slowly without assistance. The examiner indicated that the veteran needed help with his daily activities. Whether aid and attendance is warranted be based on the actual requirement of personal assistance from others. In this case, the examiner in January 2007 stated that the veteran needed help with his daily activities, and the veteran could not bend or dress on account of his service connected back disability, such that he required help putting on and taking off his shoes and socks. As the examiner's description of the veteran's condition demonstrated that he needed assistance on a daily basis, the veteran meets the criteria for SMC based on aid and attendance. Accordingly, the veteran's claim is granted. Cervical spine disability The veteran was denied service connection for a cervical spine disability by a February 2003 rating decision, with which the veteran disagreed in May 2003. The RO then issued the veteran a letter in August 2003 stating that the veteran had been denied service connection for a cervical spine disability, that the claim had become final, and that new and material evidence was required to reopen the claim. The veteran objected, noting both that the appeal period had not in fact expired and referencing his May 2003 notice of disagreement. In April 2004, the RO issued another rating decision stating that the previous indication that the claim had become final was in error, but that as of the date of that rating decision the appeal period had closed, and new and material evidence would be needed. This statement is also in error, as the RO was required to issue a statement of the case. This did not occur until June 2004, after which the veteran submitted a timely substantive appeal. The Board will accordingly review the veteran's claim de novo. As for the merits of the veteran's claim, the Board finds that service connection for a cervical spine disability is not warranted for the reasons discussed below. The veteran testified at a hearing before the Board in July 2008 that he believed he hurt his neck in the same fall in basic training in which he injured his back. However, the medical evidence of record fails to support the veteran's contention, as service treatment records show almost no treatment for the veteran's neck in service, and the medical evidence shows multiple post-service neck injuries. Service treatment records do confirm that the veteran fell from a height of about 8 feet in June 1969. However, the treatment records show only one neck related complaint (when the veteran received treatment for a muscle strain in his shoulder in October 1967). Furthermore, there was no mention of the veteran's neck at his separation physical as only the veteran's back injury was discussed. It is also noted that on the veteran's PULHES profile the veteran was given a profile of "L3" indicating that he had problems with his lower extremities; but he was given a "U1" indicating that his upper extremities (e.g. those controlled by the cervical spine) were normal. The veteran was discharged from service in 1969 and his claims file is void of treatment for his neck for a number of years. In 1984, the veteran injured his back while working on his job; and at a physical examination a month later, it was noted that the veteran's neck was supple without thyromegaly or lymphadenopathy. No neck disability was diagnosed. In a February 1985 treatment record, the veteran reported having a motor vehicle accident a year earlier in which he injured his shoulder. In a March 1985 treatment record, it was noted that the veteran was in a motor vehicle accident in 1970 (also post service) which caused shoulder problems. In May 1985, a private doctor, Dr. Whitehurst, evaluated the veteran in conjunction with a workman's compensation claim regarding a back injury that occurred on the job. The doctor found that the veteran was well-developed and nourished, and in no apparent distress. The examination of the veteran's neck, arms, back and leg showed equal strength and motor power with good range of motion and no sensory abnormalities. In April 1987 an x-ray of the veteran's cervical spine showed no significant abnormality. In May 1987, the veteran presented for treatment indicating that he had injured his neck and back in a job injury in June 1984. X-rays in March 1989 showed mild degenerative changes in the veteran's cervical spine. However, there was no suggestion that this was the result of the veteran's time in service which ended in 1969, 20 years earlier. The veteran also reported that he was involved in a motor vehicle accident in 1990 which involved neck and back injuries. The veteran also reported that a truck door had fallen on his head in 1990 resulting in a neck injury. The veteran was diagnosed with a likely herniated disc in his neck. In January 1995, the veteran presented for treatment from Dr. Pendleton complaining of aching to sharp pain and stiffness in his neck. The veteran stated that his neck pain began in 1983 when doing some heavy limb work while on the job. The veteran indicated that the pain resolved after about 10 months and recurred after a motor vehicle accident in 1990. In November 1997, an x-ray showed narrowing of the C5-C6 disc space with moderate degenerative arthritis at that level. In January 1998, it was noted that the veteran had moderate tenderness in his neck with decreased range of motion secondary to pain. As such, while the medical evidence confirms that the veteran currently has a cervical spine disability, no medical opinion of record has been advanced suggesting that the cervical spine disability was related in any way to the veteran's time in service (to include his confirmed fall). The veteran believes that his current neck disability is related to his time in service, but he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). As such, his opinion is insufficient to provide the requisite nexus between his neck disability and an event in service. Furthermore, the veteran's testimony to this effect is undermined by the fact that he reported neck pain beginning well after service (such as the 1995 private treatment record in which he indicated that he had injured his neck in 1983). Therefore, the veteran's testimony is not taken as a credible report of his time in service, since it is directly contradicted by his later statements. As such, the criteria for service connection for a cervical spine disability have not been met, and the veteran's claim is therefore denied. Peripheral neuropathy as a result of exposure to herbicides In May 2002, the veteran filed for service connection for peripheral neuropathy as a result of Agent Orange exposure. As with his claim of entitlement to service connection for a cervical spine disability, the veteran was denied by a rating decision in February 2003; he filed a notice of disagreement in May 2003; and was issued a letter in August 2003 stating that he had been denied service connection for peripheral neuropathy, that the claim had become final, and that new and material evidence was required to reopen the claim. The veteran objected and in April 2004 the RO issued another rating decision indicating that the previous indication that the claim had become final was in error, but that as of the date of that rating decision the appeal period had closed, and new and material evidence would be needed. This statement is also in error, as the RO was required to issue a statement of the case. The RO did issue the statement of the case in June 2004, and the veteran timely perfected his appeal. As for the merits of the veteran's claim, the Board finds that service connection for peripheral neuropathy is not warranted for the reasons discussed below. Service connection may be granted for acute and subacute peripheral neuropathy on a presumptive basis; however, the regulations require it to be transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. In this case, service treatment records are silent for any complaints of, or treatment for, peripheral neuropathy; and there was no evidence of peripheral neuropathy for many years after service. For example, a nerve conduction study (NCV) in August 1984 was normal with regard to the veteran's lower left extremity. An EMG and NCV in November 1989 showed normal nerves in the veteran's upper extremities and led to findings that were compatible with left and right radiculopathy. In October 2003, the veteran was diagnosed with peripheral neuropathy, which the veteran suggested was caused by his herbicide exposure, but the doctor indicated that it was of unknown origin. The doctor stated that the veteran was borderline diabetic, but she remarked that neuropathy usually develops years after developing diabetes, so she doubted that this was the cause. The evidence of record fails to show that peripheral neuropathy appeared within weeks or months of the veteran's exposure to herbicide agents, as he completed his service in Vietnam prior to 1970 and peripheral neuropathy was not found for several decades. There is also no evidence that the veteran's peripheral neuropathy resolved within two years of the date of onset. As such, the veteran is not entitled to presumptive service connection for peripheral neuropathy. Despite not meeting the criteria for presumptive service connection, a veteran also may pursue direct service connection by showing that his peripheral neuropathy was the result of his time in service. However, the veteran is unsuccessful here as well. The veteran was diagnosed with peripheral neuropathy several decades after service, and no medical opinion of record has been presented linking his peripheral neuropathy to his time in service. The veteran believes that his peripheral neuropathy is the result of herbicide exposure while in service, but he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). As such, his opinion is insufficient to provide the requisite nexus. The veteran also attempted to convince a VA examiner that his peripheral neuropathy was related to his time in service, but she declined to make such an assertion, noting that the veteran's peripheral neuropathy was of unknown origin. As such, the veteran's claims file is void of any medical evidence suggesting that his peripheral neuropathy is the result of his time in service, and therefore the criteria for service connection have not been met. Accordingly, the veteran's claim is denied on both a direct and presumptive basis. II. Effective date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. With regard to claims that are reopened, the regulations more specifically provide that when a claim is reopened, the effective date is the later of receipt of claim or date entitlement arose; unless the evidence used to reopen the claim is based on service department records. Id. Effective date earlier than February 14, 1994 for service connection for PTSD The veteran testified at a hearing before the Board in May 1999 that he felt an effective date around 1980 was warranted for service connection for PTSD, because that was when his condition was aggravated. In a December 2004 letter the veteran asserted that his claim should be granted back to the date he first filed for PTSD in 1985. The veteran testified at a hearing before the Board in July 2008 that he felt an earlier effective date was warranted, because he had been having problems for a long time with psychiatric issues. He indicated that he had first been diagnosed with PTSD in 1985, and he stated that he thought he filed his claim around 1985. The veteran's claims file shows that he did in fact first file for PTSD in March 1985, but he was denied by a July 1985 rating decision and he did not appeal. In February 1989, the veteran attempted to reopen his claim, but the RO found in May 1989 that the evidence did not show a firm diagnosis of PTSD. The veteran filed a notice of disagreement in July 1989, and a statement of the case was issued in August 1989. In October 1989, the service organization representing the veteran at the time submitted what it identified as a "Medical Statement" with accompanying medical records "in support of his claim for PTSD consideration." This and similar documents received from this organization in December 1989 and January 1990, was construed as a new claim. The veteran was then examined for VA purposes in March 1990, and after this failed to yield a diagnosis of PTSD, the RO notified the veteran in June 1990, his claim had been denied. On February 14, 1994, the veteran's petition to reopen his claim for service connection for PTSD was received; which was then granted by an April 1995 rating decision, effective from February 14, 1994. The issue in essence is therefore whether the representative's communications between October 1989 and January 1990 constituted a substantive appeal. At that time, a Substantive Appeal consisted of a properly completed VA Form 1-9, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information. The appeal should set out specific arguments relating to errors of fact or law. To the extent feasible, the argument should be related to specific items in the Statement of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal. 38 C.F.R. § 19.123 In this case, the representative's submissions were neither VA Forms 1-9, or correspondence setting out specific arguments relating to errors of fact or law. As such, they were more properly construed as a new claim, and therefore, the May 1989 rating decision, like the July 1985 decision before it, and the June 1990 decision after it, became final. The veteran then filed to reopen in February 1994, and based on the new and material evidence submitted in conjunction with that claim, the veteran's claim was granted in April 1995. The new and material evidence was determined to be the veteran's treatment records from his admission to VA PTSD treatment. Therefore, the reopening was not based on the discovery of service treatment records that had not yet been considered. See 38 C.F.R. § 3.156. As such, the effective date is the later of the date of entitlement or the date of claim, which in this case is the date of claim. Accordingly, February 14, 1994 is the proper date for service connection for PTSD to have become effective, and the veteran's claim in this regard is therefore denied. Effective date earlier than February 14, 1994 for the grant of service connection for a back disability The veteran was denied service connection for a back disability by a December 1970 rating decision. The veteran did not appeal, and the claim became final. The veteran next filed for service connection for his back in June 1987 and again in November 1988; and he was informed by a January 1989 letter that he needed to submit new medical evidence showing that the condition occurred in service. In February 1994, the veteran submitted a letter requesting that he be granted a compensable evaluation for his service connected back injury. The veteran was eventually granted service connection for his back disability by a February 2003 rating decision, and in a December 2004 rating, the effective date was made from February 14, 1994. However, in December 1989, the veteran's representative had submitted a document with additional medical evidence which the representative indicated dealt with lower back pain. Accompanying the letter was a psychiatric treatment record, which stated that the veteran had lower back pain with a history of using a TENS unit, which he related to an injury to his back during basic training. It is also noted that the part of the psychiatric treatment record discussing the back disability was highlighted (thereby at least implying some significance to that section). While it is to state the obvious that the specific intent of this communication could have been easily made more clear by the veteran's representative, and even though this letter and medical evidence may not have been sufficient to grant service connection, it did demonstrate some intent to reopen the veteran's previously denied back claim. As such, this submission may be deemed to constitute a claim to reopen, that remained pending until service connection was granted in 2003. The effective date for a claim of service connection is the later of the date of entitlement or the date of claim. In this case, it is clear that the veteran had a back disability for many years prior to 1989. As such, the date of claim is the later. Therefore, the date of receipt of the representative's submission, December 8, 1989, should be the effective date for the grant of service connection for the veteran's lower back disability. To that extent, the veteran's claim is granted. III. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. The veteran was granted service connection for PTSD in April 1995 and assigned a 30 percent rating. The veteran filed a notice of disagreement. The 30 percent rating was continued by an August 1995 rating decision (which also denied TDIU). A statement of the case was issued in September 1995, and the veteran's VA-9 was received in May 1996. While this VA-9 was not received within the statutorily prescribed time; the Court found that the veteran had never been given proper notice of how long he had to perfect his appeal, and the Court concluded that the veteran's substantive appeal was timely received. A rating decision in September 1996 increased the veteran's rating from 30 percent to 70 percent effective in May 1996. In January 1997, the RO made the effective date for the 70 percent grant effective in March 1996. In May 2001, the veteran was granted a 100 percent rating for PTSD which was effective as of May 1995. A statement of the case in May 2006 established the effective date for the 100 percent rating as August 16, 1994. The veteran is currently, and has been since August 16, 1994, rated at 100 percent for PTSD under 38 C.F.R. 4.130 § 9411 (2008); 38 C.F.R. 4.132 § 9411 (1994). Prior to August 16, 1994, the veteran was rated at 30 percent from the date his claim was received February 14, 1994; but he contends that he is entitled to a rating in excess of 30 percent earlier than August 16, 1994, i.e., from February 1994 to August 1994. Under the rating schedule in effect at the time the veteran filed his claim, a 30 percent disability rating was assigned when PTSD caused a definite impairment in a veteran's ability to establish or maintain effective and wholesome relationships with people; or when the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce considerable impairment. See 38 C.F.R. § 4.132, DC 9410; Johnson v. Brown, 7 Vet. App. 95 (1994). A 50 percent disability rating was assigned a psychiatric disability resulted in a veteran's ability to establish or maintain effective or favorable relationships with people was considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels must have been so reduced as to result in considerable industrial impairment. Id. A 70 percent evaluation was warranted where a psychiatric disability resulted in a veteran's ability to establish and maintain effective or favorable relationships with people being severely impaired. The psychoneurotic symptoms must also have been of such severity and persistence to cause severe impairment in the ability to obtain or retain employment. Id. A 100 percent evaluation was warranted where the attitudes of all contacts except the most intimate are so adversely affected as a result of a veteran's psychiatric disability as to result in virtual isolation in the community; when totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggravated energy resulting in profound retreat from mature behavior must be demonstrated; or when a veteran is demonstrably unable to obtain or retain employment. Id. During the course of this appeal the regulations for rating disabilities of mental disorders were revised effective November 7, 1996. 61 Fed. Reg. 52,700 (Oct. 8, 1996). However, because the veteran was rated at 100 percent for PTSD prior to the change in regulations, there is no need to discuss the new regulations in this case, because the new criteria could only be applied as of their effective date (i.e., at no earlier date). See VAOPGCPREC 3-2000. In his February 1994 claim, the veteran indicated that he had been treated by the Birmingham, Alabama VA since October 1993. In December 1993, the veteran's PTSD was noted to be of mild to moderate severity. However, by February 1994 it was noted that PTSD was beginning to affect the veteran's occupational life. In March 1994, the veteran was attending weekly PTSD meetings. At one meeting, he indicated that he and his wife had a good teamwork relationship regarding household chores, and he stated that his number one priority was his family. However, at another session, the veteran reported being very tense, and he was using marijuana daily to calm himself. The veteran reported that he was having increased difficulty on the job and he was not sure how much longer he could take it. It was noted that the veteran participated fully in the group and offered feedback to other members in the group. In May 1994, the veteran underwent a VA examination for his PTSD where it was noted that the veteran had worked for the City of Birmingham in the Traffic Engineering Department since 1987. At the examination the veteran was significantly anxious and slightly depressed. The veteran was noted to have flashbacks to combat. The examiner suggested that the veteran had used work to block many of his memories, but was having greater difficulty doing that. The veteran was described as a more or less absent father who is continually irritable and had problems being close to anyone. The veteran had problems concentrating and was unable to read books as a result. The examiner opined that the veteran had PTSD that was mildly to moderately affecting his employment and was significantly affecting his social functioning. In a claim for a total disability rating based on individual unemployability (TDIU) letter, the veteran indicated that he stopped working on August 16, 1994 on account of his PTSD. As such, this date was established as the date which the symptomatology of his PTSD met the criteria for 100. Prior to the date the veteran stopping working in August 1994, the evidence shows that he had a relationship with his family, and he was still working. However, by May 1994, the VA examiner indicated that the veteran's PTSD was significantly affecting his social functioning. The Board construes the use of "significantly" in the context of the veteran's symptoms to be consistent with "considerable" impairment as contemplated by the rating schedule. As such, a 50 percent PTSD rating is assigned. The evidence fails however to show that a 70 percent rating was warranted, prior to August 1994. The veteran's PTSD was found at his VA examination to be only mildly to moderately affecting his employment and was significantly affecting his social functioning. However, "significantly affecting" falls short of showing that the veteran's PTSD "severely" impaired his social functioning; and "mildly to moderately affecting" his employment falls well short of "severe impairment in the ability to obtain or retain employment." As such, a rating in excess of 50 percent is not warranted Therefore a 50 percent rating is assigned for the veteran's PTSD, prior to August 1994; and to that extent the veteran's claim is granted. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, a letters dated in July 2002, October 2004, May 2006, and June 2007, satisfied the elements required by the Pelegrini II Court as stated above. Likewise, to the extent such piece meal notice is not compliant with the controlling requirements for proper notice, the veteran's submissions and testimony reflect an understanding of the claim's process, such that any error in this regard is harmless. The veteran was informed of how effective dates and disability ratings are calculated in the June 2007 letter. It is noted that several of the veteran's claims (increased rating and effective date claims for PTSD and the effective date claim for the veteran's lower back) arise from his disagreement with the initial evaluations following the grant of service connection. For those claims additional notice under the forgoing law is not required. (This is because the claim was actually one for service connection, which obviously had been substantiated, as it was granted.) VA and private treatment records have been obtained, as have Social Security Administration (SSA) records. The veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). Additionally, the veteran testified at a hearing before the Board. Thus, the duty to assist has been satisfied; and there is therefore no prejudice to the veteran's in adjudicating his appeal. ORDER Service connection for sleep apnea/insomnia is denied. Service connection for chloracne as secondary to herbicide exposure is denied. Service connection for a cervical spine disability is denied. Service connection for a peripheral neuropathy as a result of exposure to herbicides is denied. SMC based on the need for aid and attendance is granted, subject to the laws and regulations governing the award of monetary benefits. An effective date earlier than February 14, 1994 for the grant of service connection for PTSD is denied. An effective date of December 8, 1989 for the grant of service connection for a back disability is granted. A 50 percent rating for PTSD February 14, 1994 to August 1994 is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND In May 2002, the veteran indicated that he wanted to increase his Agent Orange benefits, which was taken as a claim for a rating in excess of 30 percent for his tinea versicolor. The veteran testified at a hearing before the Board in July 2008 that his skin condition caused itching on his face, arms, back, shoulders, and stomach. He stated that nothing the dermatologists did seemed to help. The veteran also reported that he had some type of jungle rot or athlete's foot. The veteran also testified that his skin condition was progressively getting worse, and he stated that his skin condition had become worse since 1994. Because the veteran has not undergone a VA examination of his skin in a number of years, and because he has suggested that his skin condition has worsened, a skin examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain the veteran's VA treatment records since January 2008. 2. Then, schedule the veteran for a VA dermatological examination. The examiner should be provided with the veteran's claims file. The examiner should provide an opinion addressing the nature and severity of his service connected tinea versicolor. The examiner should describe any scarring that is the result of the veteran's skin disability, as well as the percentage of the veteran's entire body and the percentage of the exposed areas on the veteran's body that are covered by his skin condition. The opinion should specifically indicate whether the veteran's tinea versicolor condition: * causes any ulceration, extensive exfoliation, or crusting; * causes any systemic or nervous manifestations; * is exceptionally repugnant; * requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs for the last 12 month period. 3. Thereafter, re-adjudicate the claim on appeal. If the veteran's claim remains denied, provide him and his representative with a supplemental statement of the case which discusses all pertinent regulations and summarizes the evidence. Allow an appropriate period for response and return the case to the Board, if in order. The veteran 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 Supp. 2008). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs