Citation Nr: 0812702 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 03-18 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection of residuals of frostbite of the feet. 2. Entitlement to service connection of residuals of syphilis. 3. Entitlement to service connection of rheumatoid arthritis. 4. Entitlement to service connection of a cervical spine disability. 5. Entitlement to service connection of a lumbar spine disability. 6. Entitlement to service connection of "foot fungus". 7. Entitlement to service connection of "jock itch". 8. Entitlement to service connection for birth defects of the veteran's child. 9. Whether or not new and material evidence has been submitted sufficient to reopen the veteran's previously denied claim of entitlement to service connection of generalized anxiety disorder. 10. Whether new and material evidence has been submitted sufficient to reopen the veteran's previously denied claim of entitlement to service connection of a lung condition. 11. Entitlement to non-service connected pension benefits. 12. Entitlement to automobile or adaptive equipment or for adaptive equipment only. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION The veteran served on active duty from April 1968 until November 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (the RO). Procedural history The veteran has filed numerous claims of entitlement to VA benefits over the years. Following is the procedural history which is relevant to this appeal. In an October 1998 decision, the Board denied the veteran's claims of entitlement to service connection of a lung condition, a nervous condition and a veteran's claim of entitlement to service connection for his son's birth defects. In November 1998, the RO received the veteran's initial claims of entitlement to service connection for frostbite of the feet, residuals of syphilis, rheumatoid arthritis, foot fungus and tinea cruris and his request to reopen his previously denied claims. The RO issued rating decisions in February 2001 and January 2002 which denied each of these claims. The veteran disagreed with the rating decisions and initiated this appeal. The appeal was perfected by the timely submission of the veteran's substantive appeal (VA Form 9) in June 2003. In May 2002, the veteran's claim of entitlement to a non- service connected pension was denied. The veteran filed a timely notice of disagreement in October 2002. For reasons that are unclear, a Statement of the Case was not issued until March 2007. The veteran perfected a substantive appeal as to that issue in April 2007. In October 2002, the RO received the veteran's claim of entitlement to service connection of a back condition. In June 2004, the RO received the claim of entitlement to service connection for disability of the cervical spine. A November 2005 RO rating decision denied the veteran's claims. The veteran disagreed with that decision. His appeal as to those issues was perfected by the timely submission of a veteran's substantive appeal (VA Form 9) in April 2006. In November 2006, the RO received the veteran's claim of entitlement to automobile and adaptive equipment and entitlement to adaptive equipment only. In a March 2007 decision, the RO denied the veteran's claim. In April 2007 correspondence, the veteran expressed his disagreement with the March 2007 decision. The issues of entitlement to service connection of generalized anxiety disorder, whether new and material evidence has been submitted sufficient to reopen the veteran's previously denied claim of entitlement to service connection of a lung condition, entitlement to non-service connected pension benefits, entitlement to automobile or adaptive equipment and entitlement to specially adaptive equipment are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. Issues not on appeal In June 2003, the veteran submitted a claim of entitlement to service connection of residuals of fractures of the right wrist, right index finger, right fourth finger and ribs. In November 2005, the veteran submitted claims of entitlement to compensation under 38 U.S.C.A. § 1151 for shoulder and back conditions he claims were incurred during a VA examination in December 2004. The RO has yet to adjudicate those claims. These matters are referred to the RO for appropriate action. In a communication dated April 11, 2007, the veteran stated, without elaboration: "There was a clear and unmistakable error in the Board decision." This bare statement does not constitute a valid claim of clear and unmistakable error [CUE]. Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). See also Fugo v. Brown, 6 Vet. App. 40, 44 (1993) ["broad-brush" allegations are insufficient]. The veteran and his representative are referred to 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400 et seq. (2007). The Board intimates no outcome with respect to any CUE motion brought by or on behalf of the veteran. A review of the veteran's contentions indicates that the veteran's son was quite ill at birth and that he currently receives some manner of SSA compensation. Additionally, at the time of the veteran's January 2005 VA examination he indicated that his son was mentally retarded. The veteran may be attempting to assert a claim of entitlement to recognition of his son as a helpless child on the basis of permanent incapacity for self-support upon attaining the age of eighteen. See 38 C.F.R. § 3.356 (2007). See Verdon v. Brown, 8 Vet. App. 529, 533 (1996) [VA is required to construe liberally all submissions by a claimant]. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The competent and probative medical evidence of record does not indicate that any residuals of frostbite exist. 2. The competent and probative medical evidence of record does not indicate that any residuals of syphilis exist. 3. The competent and probative medical evidence of record is against a finding that rheumatoid arthritis, a lumbar spine disability, a cervical spine disability, tinea pedis, or tinea cruris are related to the veteran's military service. 4. The veteran did not serve in Vietnam. 5. The veteran's claim of entitlement to service connection for an anxiety disorder was denied by the Board in an unappealed October 1998 decision. 6. Since the October 1998 Board decision, evidence which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim has been received. CONCLUSIONS OF LAW 1. A disability which manifests as residuals of frostbite of the feet was not incurred in or aggravated by service. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A disability which manifests as residuals of syphilis was not incurred in or aggravated by service. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 3. Rheumatoid arthritis was not incurred in or aggravated by service, nor may it be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 4. A disability of the lumbar spine to include degenerative disc disease was not incurred in or aggravated by service, nor may it be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 5. A disability of the cervical spine to include degenerative disc disease was not incurred in or aggravated by service, nor may it be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 6. Tinea pedis was not incurred in or aggravated by service. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 7. Tinea cruris was not incurred in or aggravated by service. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 8. The claim for service connection of birth defects of the veteran's child is without legal merit. 38 U.S.C.A. § 1803 (West 2002); 38 C.F.R. § 3.814 (2007); Sabonis v. Brown, 6 Vet. App. 426 (1994). 9. The October 1998 Board decision which denied service connection for an anxiety disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). 10. Since the Board's October 1998 decision, new and material evidence has been received, and so the veteran's claim of entitlement to service connection for a nervous condition is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. 3.156 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the provisions of the VCAA as it impacts the service connection claims. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA is generally applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. The VCAA is accordingly generally applicable to this case. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. However with respect to the veteran's request to reopen his previously denied claim of entitlement to VA benefits for his son's birth defects, as set out below there is no legal basis for that entitlement. In Manning v. Principi, 16 Vet. App. 534 (2002), the United States Court of Appeals for Veterans Claims (the Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Similarly, VA's General Counsel has held that VA is not required to provide notice of the information and evidence necessary to substantiate a claim, or to assist the veteran in developing evidence to substantiate a claim, where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See VAOGCPREC 5-2004. Accordingly, the VCAA is inapplicable to this claim. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. This standard applies only to initial claims of entitlement for service connection. Another standard exists with respect to requests to reopen previously denied claims based upon the receipt of new and material evidence. That standard will be set forth where appropriate below. Duty to notify The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA 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. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in letters dated February 12, 2001 and December 15, 2006. He received a separate VCAA letter in December 10, 2004 pertaining to his service connection of lumbar and cervical spine disabilities. In those letters, the veteran was advised of the provisions relating to the VCAA. Specifically, he was advised that VA would obtain all evidence kept by the VA and any other Federal agency. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The VCAA letters specifically informed the veteran that for records he wished for VA to obtain on his behalf he must provide an adequate description of the records as well as authorization for records not held by the Federal government. Additionally, the letters specifically informed the veteran of the criteria of a successful claim of entitlement to service connection. The February 2001 and December 2004 letters also notified the veteran of the criteria for the establishment of service connection. The February 2001 VCAA letter specifically notified the veteran "If there is any additional evidence which you would like to have considered in your claim, please submit this evidence or submit it and we will attempt to obtain it on your behalf." See the February 2001 letter, page 2. The December 2004 letter contained a similar request at page 1 and the December 2006 contained an additional request on page 3. This complies with the requirements of 38 C.F.R. § 3.159 (b) in that the RO informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Regarding the veteran's request to reopen his claim of entitlement to service connection of an anxiety disorder, the veteran did not receive adequate VCAA notice as contemplated by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006). However, as will be set out in detail below, the Board has determined that new and material evidence has been received. Accordingly, the claim will be re-opened and the veteran's lack of receipt of notice as contemplated by the Court in Kent is moot. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. The veteran in this case seeks to reopen a previously denied claim of entitlement to service connection. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, element (1), veteran status, is not at issue. The veteran's claims have been denied based on a lack evidence as to elements (2) and (3), current existence of a disability and relationship of such disability to the veteran's service. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those two crucial elements. The veteran received specific notice concerning elements (4) and (5) in a March 2006 letter and again in a November 2007 letter pages 9-10. Moreover, regarding elements (4) and (5), degree of disability and effective date, these are rendered moot via the RO's denial of service connection. In other words, any lack advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. The Board additionally observes that the veteran appears to be fully conversant with what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See De la Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The duty to assist does not, however, attach to a claim to reopen unless and until the claim has been reopened based on the submission of new and material evidence. See 38 U.S.C.A. § 5103A (West 2002). With respect to the remaining issues, the Board finds that all relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained. The veteran's available service medical records, VA treatment records, available private treatment records and several lay statements have all been obtained. The veteran was afforded a VA Compensation and Pension (C&P) examination in December 2004. The Board acknowledges that the veteran has asserted that his service medical records are incomplete. Essentially he contends that portions of his records have been misfiled with other unnamed soldiers or with records of relatives of the veteran who were serving in the military around the same time that the veteran was in the service. A thorough review of the veteran's records does not provide any indication aside from the veteran's contentions that the veteran's records are incomplete. The Board acknowledges that the veteran has submitted the lay statement of L.K. indicating a discrepancy in the veteran's service personnel records, specifically, that L.K. remembers, now some forty years hence, that the veteran was incorrectly identified as an "expert" instead of as a "marksman" in his service records. However, even if such a minor mistake was made on a record which is manifestly in the file, that does not suggest that any records are missing. As the Court has stated, VA's "duty to assist is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support the claim." See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); see also Counts v. Brown, 6 Vet.App. 473, 478-79 (1994). Such is the case here. Accordingly, VA is not obligated to obtain and review the records of other variously identified service members who may not wish to have their records disclosed. The Board additionally acknowledges that due to the passage of time, certain of the veteran's private medical records are no longer available. The veteran has been made aware of the unavailable records. In response to that notice he provided a statement of I.K., RN. Additionally, certain records have not been requested because the veteran has not provided VA with properly executed authorizations. On page 2 of the December 15, 2006 VCAA letter on page the veteran was specifically advised "We must have one form filled out for each doctor/hospital with the complete address, dates of treatment and the disability that you were treated for." [Emphasis as in the original]. The veteran has not provided any further authorizations for private records which conform to the instructions provided. In general, VA's duty to assist generally includes obtaining records from Social Security Administration (SSA) records. The RO made two attempts to obtain the veteran's SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In September 2005, SSA informed VA that it did not have any of the requested records for the veteran. Accordingly, in October 2005 the RO made an official finding of unavailability. Based upon this record, the Board finds that additional attempts to obtain these records would be futile. See Counts and Gobber, both supra; see also Porter v. Brown, 5 Vet. App. 233, 237 (1993). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this claim has been consistent with the provisions of the VCAA. The veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2007). The veteran requested a videoconference hearing. However, by January 2008 correspondence, the veteran's representative withdrew the veteran's hearing request. See 38 C.F.R. § 20.704(e) (2007). Accordingly, the Board will proceed to a decision on the merits as to nine of the issues on appeal. 1. Entitlement to service connection of residuals of frostbite of the feet. 2. Entitlement to service connection of residuals of syphilis. Pertinent law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. § 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). Additionally, 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. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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). In order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) [service connection may not be granted unless a current disability exists]. A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Analysis In the interest of economy, a common discussion of these issues will be presented. The veteran is seeking entitlement to service connection of residuals of frostbite of the feet and residuals of syphilis. It is undisputed that the veteran was exposed to cold conditions and also that he was diagnosed with syphilis during service. However, service connection may not be granted unless a current disability exists. See Rabideau, supra. The veteran was afforded a VA examination in December 2004 in order to determine whether any residuals of the frostbite and syphilis existed. The examiner reviewed the veteran's claims folder, including service records, VA medical records, private treatment records. Based upon the veteran's medical records and the physical examination, the examiner determined that there were no current residuals of cold injury or of syphilis. There is no competent medical evidence of record to the contrary. The veteran's VA treatment records and the private treatment records associated with his claims folder do not show any diagnosis of or treatment for residuals of either condition. In particular, the veteran's June 2006 VA treatment "problem list" noted six ongoing medical conditions but was pertinently negative for any mention of residuals of cold injury or syphilis. To the extent that the veteran himself believes that he suffers from current residuals of cold injury to the feet or syphilis, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 491, 494- 5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements offered by the veteran are not competent medical evidence and do not serve to establish a current disability. Thus, there is no competent medical evidence which establishes that the veteran has any residuals of cold injury of the syphilis infection. Because the record contains no competent medical evidence establishing any current disability due to cold injury residuals of residuals of syphilis, service connection is not warranted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, the claim fails on this basis. The benefits sought on appeal are accordingly denied. 3. Entitlement to service connection of rheumatoid arthritis. 4. Entitlement to service connection of a cervical spine disability. 5. Entitlement to service connection of a lumbar spine disability. Analysis Because all three claims pertain to disabilities which have been diagnosed as arthritis, for the sake of economy, a common discussion will be presented. In the interest of clarity, a Hickson analysis will be employed. Concerning element (1), current disability, the veteran has been diagnosed with rheumatoid arthritis, a cervical spine disability to include degenerative disc disease of the cervical spine and a lumbar spine disability to include degenerative disc disease of the lumbar spine. See a December 1999 treatment record from Dr. S.H. Current disability has been established s to these three claimed disabilities. Turning to element (2), in-service incurrence of disease or injury, the Board will address each in turn. The veteran's service medical records are pertinently negative for any finding consistent with arthritis of any kind or any diagnosed disability of the spine. With respect to the one year presumptive period found in 38 C.F.R. § 3.309(a), the evidence of record does not include a diagnosis of arthritis, lumbar spine disability or cervical spine disability during the one year presumptive period after service. In that regard, the veteran himself does not contend that he sought treatment for any of these conditions during this time, stating that he sought mental health treatment only. The Board notes that the veteran received treatment for low back pain in July 1969. No specific diagnosis was made, and the problem evidently resolved without further treatment or complaint. That is, the veteran subsequently sought medical treatment for other conditions on four occasions without mentioning back problems, and his September 1969 report of medical history does not contain any indication of any back trouble. Physical examination was normal. Accordingly, the evidence of record indicates that the July 1969 complaint of back pain was an acute and transitory event, with no disease being found in service, then or thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]. Moreover, the veteran did not in fact complain of back problems for years after service, not merely at his separation physical examination. Accordingly, Hickson element (2), in-service incurrence of disease, to include during the one year presumptive period after service, is not satisfied as to any of the three claimed conditions. Turning to in-service incurrence of injury, the service medical records are pertinently negative for any injury, and the veteran has not himself described any specific injury. Accordingly, Hickson element (2) is not met as to injury. These three claims fail on that basis. Although the criteria for entitlement to service connection have already not been met, in the interest of completeness, the Board will discuss the remaining Hickson element, medical nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide in the alternative]. With respect to medical nexus, in December 2004, the veteran was afforded a VA compensation and pension examination. The VA examiner determined that the veteran's rheumatoid arthritis did not have its onset during service. Additionally, she determined that the veteran's cervical and lumbar spine disabilities were more likely than not a consequence of a 1976 industrial accident, several years after service. There is no competent medical evidence to the contrary. The veteran's private treatment records do not indicate or suggest that the rheumatoid arthritis began during the veteran service or within one year after service. Additionally, to the extent that any source is noted for the veteran's back complaints in the post-service medical records, these conditions are attributed to the 1976 post- service accident. See, e.g., June 1979 VA treatment records. These findings are congruent with a November 1976 VA examination report contained in the veteran's claims folder. To the extent that the veteran has attributed his rheumatoid arthritis, cervical spine condition or lumbar spine condition to service, as noted above, the veteran is not a source of competent medical evidence on this point. See Espiritu, surpa. Hickson element (3), medical nexus is not satisfied and the claims also fail on that basis. Accordingly, the criteria for entitlement to service connection are not met as to the veteran's claims of entitlement to service connection of rheumatoid arthritis, a lumbar spine condition or a cervical spine condition. A preponderance of the evidence is against each of these claims. The benefits sought on appeal are therefore denied. 6. Entitlement to service connection of "foot fungus". 7. Entitlement to service connection of "jock itch". Analysis The veteran is seeking entitlement to service connection of "foot fungus" and "jock itch". With respect to Hickson element (1), current disability, the December 2004 VA medical examination indicated a finding of tinea pedis. Tinea cruris was also diagnosed by the December 2004 VA examiner. Current disability is therefore shown. Moving to element (2), in-service incurrence of disease or injury, with respect to disease the veteran's service medical records show no treatment for tinea pedis or any other condition of the skin of the veteran's feet during service. With respect to injury, cold exposure has been conceded by VA. Accordingly, in-service incurrence of injury has arguably been satisfied with respect to tinea pedis. The veteran's service medical records establish that he suffered intermittent groin rashes. Therefore, element (2) has been established as to tinea cruris. Finally, moving to medical nexus, there is of record only one competent and probative source of medical evidence regarding the relationship between the events of the veteran's service and his claimed skin disorders. The December 2004 VA medical examiner determined that the it was more likely than not that the veteran's tinea pedis and tinea cruris was a consequence of immuno suppression caused by his rheumatoid arthritis therapy. Rheumatoid arthritis is not service-connected, service connection having been denied by the RO and by the Board in this decision, above. The veteran has presented no competent medical evidence which indicates or even suggests that his tinea pedis or tinea cruris is related to his military service or any event therein. The veteran has been accorded ample opportunity to submit such evidence; he has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support claims for VA benefits]. As has been discussed above, the veteran's own opinion as to nexus is entitled to no weight of probative value. See Espiritu, supra; see also Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Accordingly, medical nexus is not established. The claims fail on that basis. In summary, for reasons and bases expressed above the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for "foot fungus" and "jock itch". The benefits sought on appeal are accordingly denied. 8. Entitlement to VA benefits for birth defects of the veteran's child. The veteran is seeking entitlement to compensation for birth defects he asserts have afflicted his son. The veteran's claim was originally denied in a 1990 rating decision that the veteran did not appeal. That decision is now final. 38 U.S.C.A. § 7104 (West 2002). However, rather than discuss at length the claim based on the matter of receipt of new and material evidence (of which there is none), the Board believes that this claim should be denied as a matter of law. As will be discussed immediately below, there is no basis under the law to support compensation for birth defects based on the veteran's contentions. Specifically, the veteran contends that his son has suffered from arthritis and other diseases as a consequence of his own alleged exposure to "mustard gas" during basic training, or in the alternative are a result of the veteran's in-service infection with syphilis. In certain very limited circumstances, the law provides for compensation for birth defects incurred by the children of service members. See 38 U.S.C.A. § 1802 et seq. (West 2002). However, the law applies only in the event that a child of a Vietnam veteran is found to suffer from spina bifida. See also 38 C.F.R. § 3.814 (2007). It is uncontroverted that the veteran did not serve in Vietnam, and he does not so contend. Moreover, the evidence of record does not indicate that the veteran's son has spina bifida. There is no other legal provision which would apply. Therefore, for the reasons set out above, there is no legal basis upon which to award compensation for birth defects of the veteran's son as a result of any event of the veteran's service. The veteran's appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 9. Whether new and material evidence has been submitted which is sufficient to reopen a previously denied claim of entitlement to service connection of generalized anxiety disorder. Pertinent law and regulations In general, Board decisions which are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002) 38 C.F.R. § 20.1100 (2007). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that there has been a regulatory change with respect to new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a)]. The veteran filed his claim to reopen in November 1998, prior to this date. Therefore, the earlier version of the law, which is stated in the paragraph immediately below, is applicable in this case. New and material evidence is defined as evidence not previously submitted to agency decision-makers that bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a) (2001). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veterans injury or disability, even where it would not be enough to convince adjudicators to grant a claim. If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The veteran is seeking service connection of a psychiatric disorder. Essentially he contends that the stress of service and several verbal altercations with various people during service or the stress of his infection with syphilis during service causes him to develop a psychiatric condition. This matter was denied by an unappealed October 1998 Board decision. Evidence on file at the time of the Board's decision in October 1998 consisted of the veteran's service medical records, including the report of his September 1969 service separation examination; private medical records and statements, dated from September 1975 through February 1990; VA medical records, dated from November 1976 through September 1983; and a statement from the veteran's former landlady, received in January 1990. Although his former landlady reported that the veteran was treated for his "nerves" in November 1969 (the month after he left service), there was no medical evidence of any psychiatric problems until the mid-1970s. That is to say, that current disability had been established but in-service incurrence of disease or injury and a relationship between the psychiatric disability and the veteran's service had not been established. The Board's decision is final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). The evidence submitted since the veteran's prior final denial includes a September 2002 statement of Dr. R.K. indicating that he diagnosed the veteran with depression and insomnia in November 1969. Clearly, the September 2002 statement of Dr. R.K. is new as it was not previously of record. It is material in that it seeks to establish that the veteran suffered from a mental health disability immediately upon his return from service. This statement may provide a basis for establishing chronicity of the veteran's mental health problem. See 38 C.F.R. § 3.303(b) (2007). As such, it must be considered in order to fairly decide the merits of the veteran's claim. Therefore, the Board finds that new and material evidence has been submitted and on that basis the matter is reopened. Additional comments As was alluded to in connection with the Board's VCAA discussion above, at this juncture the standard of review changes. In addition, and significantly in this case, VA's duty to assist comes into play. For reasons which will be expressed in greater detail below, the Board believes that a medical examination and nexus opinion must be obtained. ORDER Entitlement to service connection of residuals of frostbite of the feet is denied. Entitlement to service connection of residuals of syphilis is denied. Entitlement to service connection of rheumatoid arthritis is denied. Entitlement to service connection of a cervical spine disability is denied. Entitlement to service connection of a lumbar spine disability is denied. Entitlement to service connection of "foot fungus" is denied. Entitlement to service connection of "jock itch" is denied. Entitlement to VA benefits for birth defects of the veteran's child is denied. New and material evidence having been received, the veteran's claim of entitlement to service connection of generalized anxiety disorder is reopened. To that extent only, the appeal is allowed. REMAND The veteran is seeking several additional benefits. For the reasons set out immediately below, the Board has determined that remand is in order. 9. Entitlement to service connection of generalized anxiety disorder. The Board has reopened the veteran's claim of entitlement to service connection for a psychiatric disability. After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this claim must be remanded for further evidentiary development. In January 2005 the veteran was referred for a VA compensation and pension examination. At that time anxiety with opioid dependence was diagnosed. The veteran's history of syphilis was noted, as was his contention that the syphilis led to his "nervous condition". The examining psychologist initially indicated that the veteran's anxiety was at least as likely as not related to alleged psychological harassment during service. [The veteran has asserted that he had several altercations during service, although none is reflected in the official record. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395- 396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993).] The VA examiner acknowledged this insufficiency and issued a June 2005 addendum opinion, concluding that it was not at least as likely as not that the veteran's current psychiatric complaints are related to service. No reasons and bases for this conclusion was provided. The failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). This opinion thus carries little weight of probative value. Additionally, the impact of the September 2002 statement of Dr. R.K. indicating the immediate post-service diagnosis was not discussed. Under such circumstances, a medical examination and medical opinion are necessary in order to identify the nature and etiology of the veteran's claimed psychiatric disability. See Charles v. Principi, 16 Vet. App. 370 (2002). 10. Whether new and material evidence has been submitted sufficient to reopen the veteran's previously denied claim of entitlement to service connection of a lung condition. As discussed above, during the course of the claim the Court issued a significant decision concerning adequate VCAA in new and material evidence claims, Kent v. Nicholson, 20 Vet. App. 1 (2006). A review of the veteran's claims folder indicates that although amplified VCAA notice was supplied in the November 2007 VCAA letter, this only notified the veteran that he needed to supply new and material evidence of an in-service incurrence of a lung disease but did not notify him that he also would need to provide evidence of a relationship between that disease, his current condition and service. Accordingly, he has not received notice which complies with the Court's guidance in Kent. The matter is remanded so that the veteran may be provided with a corrected notice. 11. Entitlement to non-service connected pension benefits. The veteran is seeking entitlement to non-service connected pension benefits. As noted by the RO in the March 2007 SSOC, the veteran meets all the criteria for establishment of entitlement to the benefit except that he has had earnings in excess of the maximum annual pension rate. The most current information on that point dates back to December 2005, nearly three years ago. He veteran has more recently indicated, in essence, that his financial circumstances have worsened. He specifically indicated that he would have to file for bankruptcy. Accordingly, the Board finds that current financial information should be obtained from the veteran. 12. Entitlement to automobile or adaptive equipment or adaptive equipment only. As noted in the Introduction, the veteran filed a timely Notice of Disagreement as to the RO's March 2007 denials of this claim. A statement of the case addressing these matters has not yet been issued. Accordingly, the Board must remand the matter to correct this procedural deficiency. See Manlincon v. West, 12 Vet. App. 238 (1999) [where a notice of disagreement is filed but a SOC has not been issued, the Board must remand the claims to the agency of original jurisdiction so that a SOC may be issued]. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should send a corrective VCAA notice pursuant to Kent, advising the veteran that evidence of an in-service incurrence of disease and competent medical evidence of a relationship between the veteran's military service and his lung condition should be submitted in order to reopen his previously denied claim of entitlement of service connection of a lung condition. 2. VBA should schedule the veteran for an examination by a psychiatrist. The claims folder should be available for review in conjunction with the examination. The psychiatric examiner should provide diagnoses for the veteran's psychiatric disability(ies) and render an opinion as to whether or not it is at least as likely as not that any diagnosed psychiatric disability is related to his military service. A report of the examination should be prepared and associated with the veteran's VA claims folder. 3. VBA should request in writing that the veteran provide VA with a financial status report or similar documentation which provides current financial information showing his countable household income for VA purposes. 4. After undertaking any evidentiary and/or procedural development which it deems to be necessary, VBA should readjudicate the issue of the veteran's claim of entitlement to automobile and adaptive equipment or adaptive equipment only. If the claim remains denied, VBA should a statement of the case, along with notification of his appeal rights. Additionally, VBA must readjudicate the other issues remaining on appeal. If the decision remains unfavorable to the veteran, in whole or in part, a supplemental statement of the case (SSOC) should be prepared, and the veteran and his representative should be provided an appropriate period of time to respond. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 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). ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs