Citation Nr: 0811625 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 00-19 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as due to asbestos exposure. 2. Entitlement to service connection for a heart disorder, claimed as secondary to COPD. 3. Entitlement to service connection for a skin disorder claimed as due to asbestos exposure. 4. Entitlement to service connection for an aneurysm, claimed as secondary to a service connected hydrocelectomy. 5. Entitlement to an effective date earlier than February 9, 1996, for a grant of an increased 30 percent rating for folliculitis. 6. Entitlement to compensation under 38 U.S.C.A. § 1151 for disability of the fingers claimed as due to VA medical treatment. 7. Entitlement to compensation under 38 U.S.C.A. § 1151 for dysphagia claimed as due to VA medical treatment. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from February 1945 to February 1952. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Huntington, West Virginia, Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in January 2008. During the hearing, the veteran raised a claim for service connection for interigo which he asserts was treated during service. Thus, he has essentially raised a claim for direct service connection which is a distinct theory of entitlement which differs from the current claim for service connection for a skin disorder due to asbestos exposure. That newly raised claim has not yet been adjudicated by the RO. Accordingly, the Board refers that matter to the RO for appropriate action. The issues of compensation under 38 U.S.C.A. § 1151 for a right fingers disability and dysphagia are 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 preponderance of the evidence shows that there is no nexus between any asbestos exposure in service and a current respiratory disability such as COPD. 2. A heart disorder, was not present until many years after service, and was not caused or aggravated by a service- connected disability. 3. There is no competent evidence that the veteran currently has a skin disorder which resulted from exposure to asbestos. 4. The veteran's aneurysm was not caused or aggravated by a service-connected disability such as his hydrocelectomy. 5. The earliest date as of which it is ascertainable that the veteran's folliculitis was manifested by constant itching and extensive lesions was January 26, 1993. CONCLUSIONS OF LAW 1. COPD, claimed as due to asbestos exposure, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 2. A heart disorder was not incurred in or aggravated by service, and was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007). 3. A skin disorder claimed as due to asbestos exposure was not incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 4. An aneurysm was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.310 (2007). 5. The requirements for an effective date of January 26, 1993 for assignment of a 30 percent rating for folliculitis are met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duty to Notify and Assist The VA has a duty to provide specific notification to the veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). The Board finds that the content requirements of a notification letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in February 2001, April 2002, December 2003, July 2006, and June 2007 provided the veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letters specifically informed the veteran that he should submit any additional evidence that he had in his possession. The June 2007 letter provided information regarding the assignment of ratings and effective dates in the event service connection is granted. Although the initial letter was not provided prior to the initial consideration of all claims, there was no prejudice resulting from the timing of the letters because veteran was afforded an appropriate period of time following the issuance of the letters to submit evidence, and his claims were subsequently readjudicated. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His service medical records and post service treatment records have been obtained. He has had a hearing. He was also afforded a VA medical examinations, and appropriate medical opinions were provided. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of evidence is required. I. Entitlement To Service Connection For COPD, Claimed As Due To Asbestos Exposure. Service connection may be granted for disability because of a disease or injury that was incurred or aggravated by service. 38 U.S.C.A. § 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, the following must be present: medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board notes that there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations for these types of cases. However, in 1988 the VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a disability that is related to asbestos exposure, under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124- 125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the United States Court of Veteran's Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the claim-development procedures). With these claims, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre- service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2005). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. However, in the case of Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). During the hearing held in January 2008, the veteran testified that he was exposed to asbestos during service when working on building maintenance, particularly when working with insulation on pipes. According to the veteran's form DD-214, the veteran's military occupational specialty involved carpentry. The Board acknowledges that the occupation engaged in by the veteran would possibly subject him to exposure to asbestos. For the sake of analyzing the veteran's claim, the Board will accept the fact that the veteran was exposed to asbestos while doing carpentry involving repairs on buildings. The Board further notes, however, that service medical records are negative for any complaints, findings, or diagnosis of a disability due to asbestos exposure. A service medical treatment record dated in August 1945 noted a complaint of chest pain, however, the treating physician attributed this to catarrhal fever. The Report of Medical Examination given in January 1952 for separation from service disclosed that the veteran's lungs and chest were rated as normal. An X-ray taken at that time was noted to be "negative." The report of a VA medical examination conducted a few years after service in February 1955 makes no mention of lung problems. His respiratory system was described as being normal. There is no evidence of any chronic lung problems such as COPD until many ears after separation from service. A VA treatment record dated in March 2003 shows that the veteran reported having exertional dyspnea after walking one block. A VA chest CT scan report dated in January 2003 reflects findings including a left upper lobe calcified granuloma and emphysema. It was noted that he had a history of asbestos exposure while working in service as a carpenter, but the examiner stated that the dyspnea on exertion was due to restrictive lung disease and obstructive lung disease. The physician did not attribute those disorders to the history of asbestos exposure. The report of a general medical examination conducted by the VA in July 2003 contains a diagnosis of chronic obstructive pulmonary disease receiving inhalers. Again, however, there was no opinion given relating the disorder to service. The Board has noted that a VA record dated in April 2003 indicates that diagnoses included dyspnea, most likely infiltrative lung disease, asbestosis. However, no explanation was given for the conclusion. The only fully supported medical opinion which is of record weighs against the claim. The report of a VA respiratory system examination conducted in January 2004 reflects that the examiner noted that the veteran gave a history of having shortness of breath for 30 or 40 years, which was worse in the past 10 years. The veteran stated that it started after he was in the Marines doing carpentry worked which involved use of asbestos. The veteran complained that he currently was short of breath all the time, and that it was worse on exertion. The VA examiner reviewed the claims file, including the VA note dated in August 2003 with a diagnosis of dyspnea, most likely, infiltrative disease, asbestosis. Following physical examination of the veteran and a chest CT scan, the VA examiner noted that the chest scan had no significant chest pathology, and no findings to support asbestos exposure. Specifically, he noted that there was no evidence of mass or infiltrates. Although there was a calcification to the adjacent of the thyroid lobe, the examiner stated that this was not a calcification of asbestosis. The examiner also noted that presence of a calcified granuloma, but again concluded that this was not a finding of asbestosis. The only diagnoses on the VA examiner were (1) chronic obstructive pulmonary disease; (2) hypertension; and (3) arteriosclerotic heart disease. The examiner stated that the charts and findings were carefully reviewed with another pulmonary physician who agreed that there was no supporting evidence for asbestosis, and no evidence of infiltrative lung disease. It was further stated that the veteran's heart condition was not secondary to the lung condition and was not secondary to asbestos exposure. Finally, the examiner stated that "Although the veteran does not have pulmonary asbestosis, it is not possible to state that heavy exposure to asbestos could not have precipitated or aggravated his lung condition." The Board notes that this final statement by the VA examiner neither supports nor weighs against the claim, but rather simply states that such a relationship cannot be absolutely ruled out. After a careful review of the record, the Board finds that the preponderance of the evidence is against entitlement to service connection for asbestos exposure. The Board relies on the thorough examination and thoughtful discussion provided by the most recent VA examiner, who has reviewed the veteran's records in detail, had discussed his findings with another pulmonary physician, and who found not infiltrative lung disease or other evidence to support a finding of asbestosis. This evidence clearly demonstrates that there is no nexus between any asbestos exposure in service and a current respiratory disability such as COPD. Service connection for asbestosis exposure is not warranted. II. Entitlement To Service Connection For A Heart Disorder, Claimed As Secondary To COPD. The Board initially notes that, in light of the foregoing denial of the claim for service connection for COPD, the claim for a heart disorder as being secondary to such a respiratory disorder must fail. In this regard, the veteran is not currently service-connected for any disability of the lungs, so there can be no basis for a claim for secondary service connection. Moreover, even if service connection was in effect for a lung disorder, the VA medical opinion discussed above concluded that the heart problems were not secondary to lung problems. In addition, the Board finds that service connection for a heart disorder may not be granted on a direct basis. The service medical records are negative for references to any heart problems, and the earliest medical records regarding heart problems are from many years after service. No medical opinion has been presented suggesting that the current heart problems may be related to service. Accordingly, the Board concludes that a heart disorder was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and was not proximately due to or the result of a service connected disability. III. Entitlement To Service Connection For A Skin Disorder Claimed As Due To Asbestos Exposure. The veteran has previously established service connection for folliculitis, rated as 30 percent disabling. However, he also claims service connection for another skin disorder which he asserts is related to exposure to asbestos during service. There is no competent evidence that the veteran currently has a skin disorder which resulted from exposure to asbestos. Examinations conducted over the years have rendered various diagnoses, but no medical professional has ever attributed the skin problems to service. A private medical record dated in February 1996 contains a diagnosis of severe prurigo nodularis involving the legs with scattered lesions elsewhere, seborrheic dermatitis, acne necrotica involving the scalp and nape of the neck with history of tumors or masses in these areas, and intertrigo involving the groin and axillary areas. The report of a skin examination conducted by the VA in November 1998 shows that the only diagnoses were history of folliculitis, history of intertrigo, and tinea pedis and manum with onychomycosis. The only pertinent diagnosis on the VA general medical examination in July 2003 was chronic recurrent folliculitis of the neck and groin, symptomatic. Asbestosis of the skin has never been diagnosed. Accordingly, the Board concludes that a skin disorder claimed as due to asbestos exposure was not incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). IV. Entitlement To Service Connection For An Aneurysm, Claimed As Secondary To Service Connected Hydrocelectomy. The veteran has previously established service connection for a post operative hydrocelectomy, rated as 10 percent disabling. He now claims secondary service connection for an abdominal aneurysm. During the hearing held in January 2008, the veteran recounted that his aneurysm was diagnosed in 2001. In essence, he expressed his opinion that the aneurysm was located close to the surgery which he had to correct a hydrocele, and he reported that his doctor had told him that the problems were related. The applicable regulation provided that service connection may be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a). This regulation has been interpreted by the Court to allow service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). Recently, the regulation was revised to incorporate the Court's ruling. See 71 FR 52747, Sept. 7, 2006. The regulation now provides as follows: (a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The Board notes that the revision to the regulation incorporated interpretations of Court decisions which were already being applied by the VA. Accordingly, a remand to have the RO apply the revised regulation is not required. The Board has noted that the veteran has expressed his own opinion during the hearing that his service-connected post operative hydrocele had caused his aneurysm. However, the Board notes that the veteran is not competent, as a lay person, to make such a medical judgment. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Although the veteran has reported that his doctor had told him that his aneurysm was caused by his service-connected postoperative hydrocele, those statements by the veteran are not sufficient to support the claim. The Court has held that hearsay medical evidence, as transmitted by a lay person, is not sufficient to support a claim because the connection between what a physician said and the lay person's account of what the physician purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. See Robinette v. Brown, 8 Vet.App. 69, 77 (1995). See also Kirwin v. Brown, 8 Vet.App. 148, 153 (1995). The Board has noted that a VA treatment record dated in February 2002 reflects that the veteran stated that an (aortic abdominal aneurysm) which he had was related to his hydrocele. He indicated that he had this for 50 years and it had only recently been discovered. The doctor noted that the veteran wanted this to be recorded. However, the fact that the veteran's own account of the etiology of his disability was recorded in his medical records is not sufficient to support the claim. In LeShore v. Brown, 8 Vet.App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. The only competent medical opinion of record weighs against the claim. The report of an arteries and veins examination conducted by the VA in December 2002 shows that the examiner reviewed the veteran's medical history and conducted a physical examination. The examiner then stated that "The abdominal aortic aneurysm is secondary to atherosclerotic disease, and is not related to his service-connected hydrocelectomy, or chronic folliculitis." For these reasons, the Board finds that the veteran's current aneurysm was not caused or aggravated by service-connected postoperative hydrocele. Accordingly, the Board concludes that the aneurysm were not proximately due to or the result of a service-connected disability. V. Entitlement To An Effective Date Earlier Than February 9, 1996, For A Grant Of Service Connection For Folliculitis. In a decision of April 1955, the RO denied service connection for a skin condition on the basis that it was not found on a VA examination. The veteran did not appeal that decision, and it became final. The RO confirmed the denial in a decision of March 1987, and again the veteran did not appeal. In a statement in support of claim date stamped as having been received on July 28, 1989 the veteran requested that the claim for service connection for a skin disorder be reopened. In a rating decision of November 1992, the RO granted service connection for folliculitis of the neck and groin, and assigned a 10 percent initial rating effective from July 28, 1989. In January 1993, the veteran filed a notice of disagreement with the rating, indicating that the skin disorder also affected his underarms, and caused constant itching. The RO issued a statement of the case on that issue in March 1993, and the veteran subsequently perfected an appeal of the rating. Later, in a decision of September 1999, the Board found that the criteria for a 30 percent rating for folliculitis were met. In the decision, the Board noted that under the version of Diagnostic Code 7806 which was then in effect, a 10 percent rating was warranted for eczema manifested by exfoliation, exudation, or itching, if involving an exposed surface of extensive area. A 30 percent rating was warranted if the disorder was manifested by exudation or constant itching, extensive lesions, or marked disfigurement. The Board noted that the veteran had asserted that he had constant itching and extensive lesions, and that he had been seen by the VA for treatment in March 1996, July 1997 and May 1998. The Board also reviewed findings of a VA examination dated in November 1998. The Board made a finding of fact that the manifestations of the folliculitis of the neck and groin included complaints of constant itching, apparent exudation in the area of the groin, and recent evidence of a lesion on the neck. Resolving all reasonable doubt in favor of the veteran, the Board found that the criteria for a 30 percent rating were met. In a rating decision of February 2000, the RO effectuated the Board's decision, and assigned an effective date of February 6, 1996, as the effective date of the increase to 30 percent. The RO noted that this was the date of an outpatient treatment report showing that the condition had worsened. The veteran now appeals that effective date. In evaluating the veteran's claim for an earlier effective date for increased compensation, the Board notes that the law and regulations provide that the effective date of an increased rating shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. The effective date of an increase in disability compensation may also be assigned for up to one year prior to the date of the receipt of the claim if it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. See 38 C.F.R. § 3.400(o). See Harper v. Brown, 10 Vet. App. 125 (1997); see also VAOPGCPREC 12-98. The Board finds that the criteria for an earlier effective date for assignment of a 30 percent rating are met as there was constant itching and extensive lesions as of January 26, 1993. In this regard, the Board notes that January 26, 1993 is the date of the document in which the veteran reported that he had constant itching. That same document was relied on by the Board in granting the 30 percent rating. Accordingly, the Board concludes that the effective date may be extended back to January 26, 1993. The Board further notes that an even earlier effective date is not warranted because it is not factually ascertainable that there was a degree of severity which warranted more than a 10 percent rating which was present prior to that date. On the contrary, the medical evidence from prior to that date shows a lesser degree of severity. A VA dermatology clinic record dated in June 1992 shows that the veteran had scaling patches under the axillae and dry patches in the groin, as well as folliculitis of the neck, but there was no mention of itching, extension lesions or disfigurement. A lay statement dated in October 1992 from an acquaintance indicates that the veteran had a chronic rash on the back of his neck for many years, but there was no mention of symptoms warranting a 30 percent rating. The Board notes that no other record during the relevant period demonstrates any severity of the veteran's disability to above the level contemplated by a 10 percent rating. Accordingly, the Board concludes that the requirements for an effective date of January 1993, but no earlier, for assignment of a 30 percent rating for a skin disorder are met. ORDER 1. Service connection for COPD, claimed as due to asbestos exposure, is denied. 2. Service connection for a heart disorder, claimed as secondary to COPD, is denied. 3. Service connection for a skin disorder claimed as due to asbestos exposure is denied. 4. Service connection for an aneurysm, claimed as secondary to service connected hydrocelectomy, is denied. 5. An effective date of January 26, 1993, for allowance of a 30 percent rating for folliculitis is granted. REMAND The veteran contends that the RO made a mistake by denying his claim for compensation because his disability of the right fingers was caused or aggravated by the VA treatment. In essence, he argues that the surgery on his neck in 1987 to remove a lipoma was more complicated than expected and resulted in injury to the nerves that go down his arms to his fingers, as well as an injury to his throat that causes dysphagia. He presented testimony to that effect during the hearing held in January 2008. The appellant's claim for compensation is premised on 38 U.S.C.A. § 1151. Title 38, U.S.CA. § 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in additional disability by reason of VA hospitalization, or medical or surgical treatment, compensation shall be awarded in the same manner as if such disability were service connected. Subsequent amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 require a showing not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. Those amendments apply to claims for compensation under 38 U.S.C.A. § 1151 which were filed on or after October 1, 1997. VAOPGCPREC 40- 97. The claims file reflects that the RO considered the veteran's § 1151 claims under the revised standard which requires a showing of negligence. The Board's review of the record, however, reflects that the veteran raised his § 1151 claims prior to the effective date of that requirement. In this regard, the Board notes that a statement in support of claim dated as early as June 1991 reflects that the veteran claimed that his surgery at the VA had caused narrowing of his neck. This appears to be essentially the same claim as the certified claim for compensation under 1151 for dysphagia. He made a similar statement in a form dated in August 1991. Similarly, during a hearing held in February 1996, the veteran raised a claim for 1151 compensation for impairment of the right hand a wrist which he asserted was related to "the neck problem." Subsequently, in a statement of December 1997, the veteran clarified that it was his intent to pursue a claim for dysphagia due to the surgery to remove a mass on the right side of his neck which was performed by the VA in 1987. In light of the fact that the 1151 claims were raised prior to October 1997, the older standard which did not require a showing of negligence applies. However, the RO adjudicated them under the new standard. In addition, the VCAA notification letter also contained information regarding the incorrect standard, as did the statement of the case. A remand is required to correct these matters. The Board also notes that the VCAA requires that the VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). When the medical evidence is not adequate, the VA must supplement the record by seeking an advisory opinion or ordering another examination. See Littke v. Derwinski, 1 Vet. App. 90 (1991). A medical opinion was previously obtained in this case in September 2005. However, the examiner addressed only the right hand claim, and did not discuss the dysphagia claim. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 and the implementing regulations are fully complied with and satisfied. The required notice to the appellant should include a statement as to the information and evidence necessary to substantiate the claim for compensation under the old 38 U.S.C.A. § 1151, and should indicate which portion of any such information or evidence is to be provided by the claimant and which portion, if any, the VA will attempt to obtain on behalf of the claimant. 2. Thereafter, the veteran should be afforded a VA throat examination to determine the etiology of any dysphagia disability which the veteran may currently have. The claims folder should be made available to and reviewed by the examiner before the examination. The examiner should record the full history of the disorder, including the veteran's own account of the nature of his increased disability which he asserts was the result of the VA surgery. The examiner should specifically comment as to the likelihood that any currently found dysphagia disability was caused or aggravated by the VA treatment (or any failure to provide treatment or proper evaluation). 3. The RO should thereafter review the additional evidence that has been obtained and determine whether the benefits sought on appeal may now be granted. If any of the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. 2007). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs