Citation Nr: 0638210 Decision Date: 12/08/06 Archive Date: 12/19/06 DOCKET NO. 05-00 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for hepatitis C. 4. Entitlement to service connection for hyperlipidemia. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD). 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the shoulders. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disorder to include chronic obstructive pulmonary disease (COPD), including as a result of exposure to a herbicide agent while in the Republic of Vietnam. 8. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 9. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the knees. 10. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the low back. 11. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the neck. 12. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinea pedis, including as a result of exposure to a herbicide agent while in the Republic of Vietnam. 13. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinea cruris, including as a result of exposure to a herbicide agent while in the Republic of Vietnam. 14. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Barbara Scott Girard ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The veteran served on active duty from September 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2003 and October 2004 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in Reno, Nevada. As to the claims for service connection for PTSD, tinnitus, arthritis of the knees, shoulders, low back, and neck, tinea pedis, tinea cruris, and for a respiratory disorder, this was not the first time these claims had been denied by VA. As to the application to reopen the claim of entitlement to service connection for PTSD as well as the original claims of entitlement to service connection for tinnitus, arthritis, tinea pedis, tinea cruris, and for a respiratory disorder, they were previously denied by VA in December 1996. That decision is final. 38 U.S.C.A. § 7105 (West 2002). As a result, the claims to reopen may be considered on the merits only if new and material evidence has been submitted since that time. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2006). The applications to reopen the claims of entitlement to service connection for tinnitus, arthritis of the knees, low back, and neck, tinea pedis, and tinea cruris, as well as the claims for entitlement to service connection for PTSD, hepatitis, and hyperlipidemia, and the claim for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence received since the August 1986 rating decision is new and when considered with previous evidence of record relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for PTSD, arthritis of the shoulders, and for a respiratory disorder, and the claims are reopened. 2. As to entitlement to service connection for depression, hypertension, arthritis of the shoulders, and a respiratory disorder, to include COPD, the preponderance of the evidence is against a finding that they were present in-service; that they were related to service; or that a psychosis, hypertension, or arthritis of the shoulders manifested themselves to compensable degrees within a year following separation from active duty. CONCLUSIONS OF LAW 1. The veteran has submitted new and material evidence sufficient to reopen the claims of entitlement to service connection for PTSD, arthritis of the shoulders, and for a respiratory disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). 2. Depression, hypertension, arthritis of the shoulders, and a respiratory disorder, to include COPD, were not incurred or aggravated during military service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5100, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Claims to Reopen PTSD, Shoulders, Respiratory As to the applications to reopen the claims of entitlement to service connection for PTSD, arthritis of the shoulders, and for a respiratory disorder, to include COPD, the appellant contends that current disabilities began during or are a result of his military service, which service included service in the Republic of Vietnam. It is requested that the veteran be afforded the benefit of the doubt. The application to reopen the claim of entitlement to service connection for PTSD as well as the original claims of entitlement to service connection for arthritis of the shoulders and for a respiratory disorder were previously denied by the RO in a December 1996 rating decision. Specifically, the RO denied the claims based on a finding that the record did not contain either a confirmed diagnosis of PTSD or of a respiratory disorder nor x-ray evidence of arthritis of the shoulders. Later in December 1996, the veteran was provided notice of this denial at his last address of record. He did not appeal the claims for arthritis of the shoulders and for a respiratory disorder. Moreover, while he filed a March 1997 notice of disagreement as to the denial of his claim for PTSD, he did not thereafter perfect that appeal. The law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to give consideration to all of the evidence received since the December 1996 decision in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). Using these guidelines, the Board has reviewed the additional evidence associated with the claims folders since the rating decision in question and finds that the evidence includes, for the first time, a confirmed diagnosis of PTSD and of a respiratory disorder diagnosed as COPD as well as x-ray evidence of arthritis of the shoulders. See VA treatment records dated in June 2001 (diagnosed COPD), January 2002 (diagnosed PTSD), and shoulder X-rays dated in April 2002. Thus, the Board finds that the additional medical evidence is both new and material as defined by regulation. 38 C.F.R. § 3.156(a). The claims are reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). To the extent that these claims are reopened the Board finds that VA has complied with the Veterans Claims Assistance Act of 2000. II. Service Connection for Depression, Hypertension, Shoulders, Respiratory Veterans Claims Assistance Act of 2000 As to entitlement to service connection for depression and hypertension, as well as the newly reopened claims of entitlement to service connection for arthritis of the shoulders and for a respiratory disorder, to include COPD, the Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), eliminated the concept of a well-grounded claim and redefined the obligations of VA with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). The VCAA and its implementing regulations are applicable to the claims now before the Board. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA must also notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant to the duty to notify, the Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Pelegrini, the Court held that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159(b), and Quartuccio, that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide and that, furthermore, in what can be considered a fourth element of the requisite notice, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," under 38 C.F.R. § 3.159(b). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in July 2002, September 2003, and October 2003, prior to the December 2003 rating decision, as well as written notice provided in May 2004 and August 2004, prior to the October 2004 rating decision, informed the appellant as to what evidence he was to provide and to what evidence VA would attempt to obtain on his behalf. He was also informed to submit any relevant evidence in his possession. While this notice did not provide notice of the type of evidence necessary to establish disability ratings and effective dates for the claims on appeal, the Board finds this fact harmless because the preponderance of the evidence is against the appellant's claims and any questions as to the appropriate disability rating or effective date to be assigned are moot. Dingess v. Nicholson, 19 Vet. App. 473 (2006); ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the RO obtained and associated with the claims files all service medical records and personnel records. Moreover, after the veteran notified VA that he received treatment at the Wichita, Leavenworth, Reno, Topeka, and Las Vegas VA Medical Centers, the RO obtained and associated these records with the claims files. The record also includes a June 1974 admission record from Napa State Hospital and a number of VA treatment records from VA Medical Centers whose names do not appear on the treatment records. Moreover, the RO was notified in August 2005 that Napa State Hospital did not have any other records. Likewise, while the veteran notified the RO that he received treatment at Chicago VA Medical Center, in May 2006 the RO was notified that they did not have any of the claimant's treatment records. There is no pertinent evidence that is not currently part of the claims files. The Board recognizes that VA did not obtain a medical opinion as to the relationship between current depression, hypertension, arthritis of the shoulders, and respiratory disorder, to include COPD, and military service. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reviewed the relevant subsection of the regulation, 38 C.F.R. § 3.159(c)(4)(i)(A)-(C), in Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) and noted that the regulation, unlike the statute, contained a requirement that the claimant establish that he has suffered an event, injury, or disease in service in order to trigger VA's obligation to provide a VA medical examination or obtain a medical opinion. The Federal Circuit found that the regulation properly filled a gap left in the statute. The Federal Circuit referenced a preceding section of the statute, 38 U.S.C.A. § 5103A(a)(2), which indicates that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. The Federal Circuit found that, if the evidence of record does not establish that the veteran suffered an event, injury, or disease in service, no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim. In making this finding, the Federal Circuit noted the arguments made by the Secretary that "a medical examination or opinion generally could not fill the gap left by the other evidence in establishing a service connection." Paralyzed Veterans of America, 345 F.3d at 1356. In the instant appeal, the appellant contends that current depression, hypertension, arthritis of the shoulders, and respiratory disorder, to include COPD, were caused by military service. However, as will be more fully explained below, service medical records are silent for any complaints or clinical findings pertaining to these disorders and there is no evidence of any of these disorders for at least a decade following his separation from service. For these reasons, the Board finds that a medical opinion is not necessary to decide the claims in that any such opinion could not establish the existence of the claimed in-service disease or injury. Paralyzed Veterans of America, et. al., supra; Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (the Board is not required to accept a medical opinion that is based on the veteran's recitation of medical history). In view of the foregoing, the Board finds that VA has fulfilled its duties under the VCAA. To the extent that VA has failed to fulfill any duty to notify and assist the claimant, that error is harmless since there is no evidence the error reasonably affects the fairness of the adjudication. ATD Corp., supra. Analysis As to entitlement to service connection for depression and hypertension, as well as the newly reopened claims of entitlement to service connection for arthritis of the shoulders, and for a respiratory disorder, to include COPD, the veteran argues that his current problems were caused by his military service. As to the respiratory disorder, the veteran also claims it was caused by his exposure to Agent Orange while in the Republic of Vietnam. It is also requested that the veteran be afforded the benefit of the doubt. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A psychosis, hypertension, and arthritis will be presumed to have been incurred in service if it manifested itself to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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, 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. In deciding whether the veteran has a current disability due to military service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 30 (1999). When adjudicating claims of entitlement to service connection due to alleged herbicide (including Agent Orange) exposure, VA must consider both direct service connection under 38 C.F.R. § 3.303 and presumptive service connection under 38 C.F.R. § 3.307 for the disorders enumerated at 38 C.F.R. § 3.309 for herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Presumptive Service Connection As to presumptive service connection for the disorders enumerated at 38 C.F.R. § 3.309(e), a review of the record shows the veteran's diagnosis of COPD starting post-service in June 2001. However, COPD is not recognized by the Secretary as a disease process associated with herbicide exposure. Therefore, the presumptions found in 38 C.F.R. §§ 3.307, 3.309(e) do not apply. Direct Service Connection As to entitlement to direct service connection for depression, hypertension, arthritis of the shoulders, and a respiratory disorder, to include COPD, service medical records are negative for complaints, diagnoses, or treatment for any of the above disorders and the post-service record shows the veteran being diagnosed with depression starting in August 1996, hypertension starting in June 2001, arthritis of the shoulders starting in April 2002, and COPD starting in June 2001. See VA treatment records dated from 1980 to 2002. Significantly, the record is negative for a medical opinion linking any current disorder to military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Given the above, entitlement to service connection for depression, hypertension, arthritis of the shoulders, and a respiratory disorder, to include COPD, on a direct basis must be denied. 38 C.F.R. § 3.303; Evans, supra. Moreover, given the length of time between the veteran's 1970 separation from active duty and first being diagnosed with depression, hypertension, arthritis of the shoulders, and a respiratory disorder, to include COPD, for more then a decade after his separation from military service, there is no competent evidence of a continuity of symptomatology. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service.). The presumptions found at 38 C.F.R. §§ 3.307, 3.309 also do not support the veteran's claims because the first diagnoses of depression, hypertension, arthritis are found in the record many years after his 1970 separation from active duty. In light of the foregoing, entitlement to service connection for depression, hypertension, arthritis of the shoulders, and a respiratory disorder, to include COPD, is denied. In reaching the above conclusions, the Board has not overlooked the veteran's and his representative's written statements to the RO and the claimant's statements to his physicians. However, while lay witnesses are competent to describe what they see and experience, because laypersons are not trained in the field of medicine, they are not competent to provide medical opinion evidence as to the origins of a disease. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, the veteran's and his representative's statements addressing the origins of the claimant's disabilities is not probative evidence as to the issues on appeal. The Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. 38 U.S.C.A. § 5107(b); see also, e.g., Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for depression is denied. Entitlement to service connection for hypertension is denied. New and material evidence having been submitted, a claim of entitlement to service connection for arthritis of the shoulders is reopened and the appeal is granted to this extent. Entitlement to service connection for arthritis of the shoulders is denied. New and material evidence having been submitted, a claim of entitlement to service connection for a respiratory disorder, to include COPD, is reopened and the appeal is granted to this extent. Entitlement to service connection for a respiratory disorder, to include COPD, is denied. New and material evidence having been submitted, a claim of entitlement to service connection for PTSD is reopened and the appeal is granted to this extent. REMAND PTSD. As to the newly reopened claim of entitlement to service connection for PTSD, the Board notes that the veteran claimed that the following events occurred while he was in the Republic of Vietnam from February 1968 to April 1970 while serving as a truck driver with the 1st Logistic Command, HHC Saigon Support Command, 90th Replacement Battalion: in July 1968 and/or February 1969, while guarding the Philco Ford Warehouse in Saigon he was fired upon by other American troops who mistakenly thought that he was part of a group stealing from the warehouse; in September 1968, while driving from an Air Force Base in Saigon to the 90th Replacement Battalion located between Long Binh and the 2nd Field Force he ran over an old man on a motor bike which another truck had forced under his tires; in February 1969, he was assaulted by a ROC solder after he struck his jeep with the bumper of his truck while driving to Saigon; in June 1969, while driving from the 90th Replacement Battalion to an Air Force Base in Bien Hoa, he ran over three Vietnamese on a motor bike who got to close to him trying to pass his truck, he was thereafter attacked by a mob as well as beaten by Vietnamese police officers before being let go after witnesses confirmed his story; and in November 1969, while driving from the 90th Replacement Battalion to an Air Force Base in Bien Hoa he hit a pregnant Vietnamese women who jumped in front of his truck and thereafter demanded money from him. Tellingly, the record also includes a December 2003 letter from a soldier the veteran identified as having served with him in the Republic of Vietnam during the friendly fire incident that occurred while they were guarding a supply warehouse in Saigon in February 1969. The veteran also reported that in December 1967, while in advanced infantry training at Fort Dix, he was the victim of an attempted sexually assaulted while in the barracks. At that time, to avoid embarrassment, he did not press charges and was shortly thereafter shipped out to the Republic of Vietnam. Despite the above information, the RO concluded in March 2006 that the record contained too little information to send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) (previously known as the U.S. Armed Services Center for Unit Records Research (CURR)) to seek verification of any of these stressors. In this regard, despite the RO's March 2006 finding, the Board notes that VA Adjudication Procedure Manual (M21-1), Part VI, Ch. 11.37(f)(3) provides, in relevant part, that in adjudicating claims of entitlement to service connection for PTSD, "[i]f a VA examination . . . establishes a valid diagnosis of PTSD, and development is complete in every respect but for confirmation of the in-service stressor, request additional evidence from . . . the Environmental Support Group (ESG) [now known as the U.S. Armed Services Center for Research of Unit Records (USASCRUR))]. Likewise, M21-1, Part VI, Ch. 11.37(f)(4) provides, in relevant part, that in adjudication claims of entitlement to service connection for PTSD, VA must "always send an inquiry [to ESG] in instances in which the only obstacle to service connection is confirmation of an alleged stressor. A denial solely because of an unconfirmed stressor is improper unless it has first been reviewed by the ESG . . ." The Board acknowledges that the veteran's stressor information is sparse. Nonetheless, service personnel records confirm he served in the Republic of Vietnam from February 1968 to April 1970 as a truck driver with the HHD, 1st Log Command. Moreover, the record contains a diagnosis of PTSD. Therefore, the Board reads M21-1, Part VI, Ch. 11.37(f)(3) and (4) as requiring VA, before adjudicating the claim, to first send his available stressor information to USASCRUR and ask if they can verify any of the stressors. Since this has not been done, a remand is required. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). Hepatitis C and Hyperlipidemia. As to entitlement to service connection for hepatitis C and hyperlipidemia, given the veteran's admission of in-service and post-service intravenous drug use as well as the post-service diagnoses of poly-substance abuse and alcoholism, the Board finds that a remand is required to obtain a medical opinion as to the relationship between the veteran's in-service and post- service intravenous drug and post-service alcohol abuse and the hepatitis C and hyperlipidemia. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A remand of the claims for entitlement to service connection for hepatitis C and hyperlipidemia is also required to provide the veteran with notice of the laws and regulations governing line-of-duty determinations as they relate to drug and alcohol abuse. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. § 19.31 (2006); also see 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(c)(3), (d); VAOPGCPREC 2-97 (Jan. 16, 1997); 62 Fed. Reg. 15565 (1997); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31,263 (1998); VAOPGCPREC 7-99 (1999), 64 Fed. Reg. 52,375 (1999). Tinnitus, Knees, Low Back, Neck, Tinea Pedis, Tinea Cruris. As to the claims to reopen entitlement to service connection for tinnitus, arthritis of the knees, low back, and neck, tinea pedis, and tinea cruris, the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), held that the terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. Dingess, supra. In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. Moreover, in order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, Kent holds that the VCAA requires, in the context of a claim to reopen, that the RO look at the specific bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that specific element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. The basis for the denial in the prior decision is determined from the face of that decision. Accordingly, further development is necessary to comply with the notice provisions of 38 U.S.C.A. §§ 5103, 5108 (West 2002), and 38 C.F.R. § 3.156 (2006), as defined by Kent. TDIU. As to the TDIU claim, adjudication of this issue must be deferred pending completion of the additional evidentiary development outlined above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, these issues are REMANDED to the AMC or RO for the following actions: 1. As to entitlement to service connection for hepatitis C and hyperlipidemia, the RO/AMC should notify the veteran and his representative of the laws and regulations governing line-of- duty determinations as they relate to drug and alcohol abuse as found at 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(c)(3), (d); VAOPGCPREC 2-97 (January 16, 1997); VAOPGCPREC 2-98 (1998); and VAOPGCPREC 7-99 (1999). 2. As to the claims to reopen, the RO should send the veteran corrective VCAA notice under 38 U.S.C.A. § 5103(a). The notice must include an explanation as to what specifically constitutes new and material evidence in this particular case in light of the basis on which the December 1996 rating decision denied the original claims of entitlement to service connection for tinnitus, arthritis of the knees, low back, and neck, tinea pedis, and tinea cruris. The correspondence must further provide notice to the veteran of the evidence and information necessary to establish entitlement to service connection in a manner consistent with Kent. The appellant should specifically be invited to submit any additional pertinent evidence that he has in his possession. 3. As to entitlement to service connection for PTSD, the RO/AMC must send the above PTSD stressor information to USASCRUR and ask if they can verify any of it. 4. If USASCRUR notifies the RO/AMC that it cannot verify the veteran's stressors without additional information, the RO/AMC should notify the appellant and inform him precisely what the USASCRUR requires. The RO/AMC should then offer him one final opportunity to present a comprehensive statement containing as much detail as possible regarding any claimed stressor which he alleges he was exposed to during service. 5. Thereafter, the RO/AMC should arrange for the veteran's claims files to be forwarded to a physician specializing in infectious diseases to prepare an opinion addressing the relationship between his admitted in-service and post-service intravenous drug use and post-service alcohol abuse and his current hepatitis C and hyperlipidemia. Following a review of the relevant medical evidence in the claims file and any additional examination or diagnostic study that is deemed necessary, the clinician is requested to answer the following question: What, if any, role did the veteran's admitted in-service and post-service intravenous drug use and post- service alcohol abuse play in his contracting hepatitis C and having hyperlipidemia? 6. If, while in remand status, additional evidence or information received triggers a need for still further development or assistance under the VCAA, such as providing the veteran with updated notice of what evidence has been received and not received by VA, as well as who has the duty to request evidence, then such development must be undertaken by VA in accordance with the Court's holdings in Kent and Dingess. 38 U.S.C.A. §§ 5100, 5103, 5103A; 38 C.F.R. § 3.159. 7. Then, after completion of any other notice or development indicated by the state of the record, with consideration of all evidence added to the record subsequent to the most recent supplemental statement of the case, the RO/AMC must readjudicate the veteran's claims. If any of the claims remain denied, the RO/AMC should issue an appropriate supplemental statement of the case and provide the veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ LINDA ANNE HOWELL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs