Citation Nr: 0814533 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-08 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for retained metallic fragments in his right and left hands. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for arthritis of multiple joints. 4. Entitlement to service connection for an eye disorder, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for stomach ulcers. 6. Entitlement to an increased evaluation for disc space narrowing at L4-5 and wedging of T12-L1, currently assigned a 40 percent disability evaluation. 7. Entitlement to an increased evaluation for residuals of a left ankle injury, currently assigned a 10 percent disability evaluation. 8. Entitlement to a higher initial evaluation for radiculopathy of the left lower extremities, currently assigned a 10 percent disability evaluation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran served on active duty from March 1977 to November 1986, and he had subsequent service in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from August 2004 and June 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. A hearing was held on June 15, 2007, by means of video conferencing equipment with the appellant in Winston-Salem, North Carolina, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board also notes that the veteran's appeal had originally included the issue of entitlement to service connection for bilateral hearing loss. However, during the pendency of the appeal, a rating decision dated in March 2006 granted service connection for that disorder and assigned a noncompensable evaluation effective from October 7, 2004. Therefore, the issue of entitlement to service connection for bilateral hearing loss no longer remains in appellate status, and no further consideration is required. The issues of entitlement to service connection for stomach ulcers and to an increased evaluation for disc space narrowing at L4-5 and wedging of T12-L1 and for residuals of a left ankle injury will be 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. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. An unappealed March 1987 rating decision denied service connection for retained metallic fragments in the left and right hands. 3. The evidence received since the March 1987 rating decision, by itself, or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim for service connection for retained metallic fragments in the left and right hands. 4. Diabetes mellitus did not manifest during service or one year thereafter and has not been shown to be causally or etiologically related to the veteran's military service. 5. Arthritis of multiple joints was not manifested during service or one year thereafter and has not been shown to be causally or etiologically related to the veteran's military service. 6. An eye disorder has not been shown to be causally or etiologically related to the veteran's military service or to a service-connected disorder. 7. In a December 2005 rating decision, the RO granted service connection for radiculopathy of the left lower extremities and assigned a 10 percent disability evaluation effective from March 17, 2004. The RO received the veteran's notice of disagreement in February 2006, and a statement of the case was issued in September 2006. The RO received the veteran's VA Form 9 on in January 2007, and a timely request for an extension of the time limit for filing a substantive appeal is not of record. CONCLUSIONS OF LAW 1. The March 1987 rating decision, which denied service connection for retained metallic fragments in the left and right hands, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.204, 20.1103 (2007). 2. The evidence received subsequent to the March 1987 rating decision is not new and material, and the claim for service connection for retained metallic fragments in the left and right hands is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1105 (2007). 3. Diabetes mellitus was not incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 4. Arthritis of multiple joints was not incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 5. An eye disorder was not incurred in active service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). 6. The veteran has not submitted a timely substantive appeal with regard to the December 2005 rating decision, which granted service connection radiculopathy of the left lower extremities and assigned a 10 percent disability evaluation effective from March 17, 2004. Nor has he submitted a timely request for extension of the time limit for filing his substantive appeal. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 3.109, 20.202, 20.302, 20.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With respect to the veteran's claim for an increased evaluation for radiculopathy of the left lower extremities, the Board has determined in the decision below that the veteran did not submit a timely substantive appeal with regard to the rating decision currently on appeal. As such, the Board does not have appellate jurisdiction to consider the merits of the claim. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101 (2006). Thus, VA is not required to take any further action to assist the claimant. 38 U.S.C.A. § 5103A(a) (West 2002). See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence). The veteran was properly notified of the jurisdictional problem, and he was afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness. With respect to the veteran's application to reopen a claim for service connection for retained metallic fragments in his hands as well as his claims for service connection for diabetes mellitus, arthritis of multiple joints, and an eye disorder, the RO did provide the appellant with notice in January 2005, prior to the initial decision on the claims in June 2005. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letter about the information and evidence that is necessary to substantiate his claims for service connection and to reopen his previously denied claim. Specifically, the January 2005 letter stated that in order to establish service connection the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. The January 2005 letter also indicated that the veteran's claim for service connection for retained metallic fragments in both hands had been previously denied in a March 1987 rating decision and that he needed to submit new and material evidence to reopen his claim. The letter explained that in order to be considered new the evidence must be in existence and be submitted to VA for the first time. It was also noted that in order to be deemed material the additional existing evidence must pertain to the reason the claim was previously denied. The January 2005 letter further explained that new and material evidence must raise a reasonable possibility of substantiating the claim. It was specifically noted that the claim had been previously denied because x-rays did not show any foreign bodies in the veteran's hands and that the veteran must submit evidence related to that fact. As such, January 2005 letter notified the veteran to look to the bases for the previous denial to determine what evidence would be new and material to reopen the claim. See Kent v. Nicholson, 0 Vet. App. 1 (2006) (law requires VA to look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial). Additionally, the March 2006 statement of the case (SOC) and the December 2006 supplemental statement of the case (SSOC) notified the veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claims. In addition, the RO notified the veteran in the notice letter about the information and evidence that VA will seek to provide. In particular, the January 2005 letter indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claims and that VA was requesting all records held by Federal agencies, including service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claims. The RO also informed the veteran about the information and evidence that he was expected to provide. Specifically, the January 2005 letter notified the veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. In addition, the January 2005 letter stated that it was the veteran's responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. Finally, the January 2005 letter specifically notified the claimant that he should provide any evidence or information in his possession that pertains to the claims. Because each of the four notice requirements has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all the requirements is harmless error. Further, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date. In this regard, the Board notes that a letter was sent to the veteran in March 2006 informing him that a disability rating was assigned when a disability was determined to be service-connected and that such a rating could be changed if there were changes in his condition. The March 2006 letter also explained how disability ratings and effective dates were determined. In addition, the duty to assist the veteran has also been satisfied in this case. The veteran's service medical records as well as all available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claims. His records from the Social Security Administration (SSA) were also obtained, and he was provided the opportunity to testify at a hearing before the Board. The Board does observe that the veteran has not been afforded VA examinations in connection with his application to reopen his claim for service connection for retained metallic fragments in his right and left hands or in connection with his claim for service connection for diabetes mellitus, arthritis of multiple joints, and an eye disorder. Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). However, the duty to provide a medical examination and/or obtain a medical opinion in a claim for disability compensation benefits does not apply in cases involving an attempt to reopen a finally adjudicated claim unless new and material evidence is presented or secured. See 38 C.F.R. § 3.159(c)(4)(iii) (2007). Moreover, a VA examination is unnecessary to decide the claims for service connection for diabetes mellitus, arthritis of multiple joints, and an eye disorder because such an examination would not provide any more information than is already associated with the claims file. As will be discussed below, the veteran has not been shown to have an event, disease, or injury to which a current diagnosis of diabetes mellitus, arthritis of multiple joints, or an eye disorder could be related. The record contains no probative evidence that demonstrates otherwise. Therefore, because there is no event, injury, or disease in service to which a current disorder could be related, the Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease). VA has also assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOC, which informed them of the laws and regulations relevant to his claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. I. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition to the requirements for establishing service connection on a direct basis, service connection for certain diseases, such as diabetes mellitus and arthritis, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. A. Retained Metallic Fragments in the Left and Right Hands The Board observes that the veteran's claim for service connection for retained metallic fragments in the left and right hands was previously considered and denied by the RO in a rating decision dated in March 1987. The veteran was notified of that decision and of his appellate rights. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In October 2004, the veteran essentially requested that his claim for service connection for retained metallic fragments in the left and right hands be reopened. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claims in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). As noted above, the veteran's claim for service connection for retained metallic fragments in the left and right hands was previously considered and denied. In that decision, the RO observed that the veteran's service medical records documented his complaint of having metal in his hand in November 1981. He also complained of metal in both hands in September 1986. However, x-rays did not reveal any foreign bodies in service, and both hands were normal at the time of a February 1987 VA examination. Therefore, the RO determined that service connection for retained metallic fragments in the left and right hands was not warranted. The evidence associated with the claims file subsequent to the March 1987 rating decision includes private medical records; VA medical records; records from the Social Security Administration; copies of the veteran's service medical records; July 2004 and November 2005 VA examination reports; and, hearing testimony as well as the veteran's own assertions. However, the Board finds that such evidence is not new and material within the meaning of the laws and regulations set forth above, and as such, there is no basis to reopen the claim for service connection for retained metallic fragments in the left and right hands. With respect to the private medical records, VA medical records, and SSA records, the Board finds that they are new in that they were certainly not of record at the time of the March 1987 rating decision. However, those records are not probative in that they do not provide an opinion relating a current hand disorder to his military service. In fact, the records do not indicate that the veteran has any metallic fragments in his hands. Instead, the SSA records document the veteran as having a post-service hand injury. As such, the records do not raise a reasonable possibility of substantiating the claim. Therefore, the Board finds that the private medical records, VA medical records, and SSA records are not new and material. In addition, the Board finds that the copies of the veteran's service medical records are not new, as they are duplicative of the evidence already of record at the time of the March 1987 rating decision. As for the VA examination reports, the Board finds that they are new in that they were certainly not of record at the time of the March 1987 rating decision. However, the July 2004 and November 2005 VA joints examination reports are not probative in that they do not discuss the veteran's hands or any retained metallic fragments. As such, the reports do not raise a reasonable possibility of substantiating the claim. Therefore, the Board finds that the July 2004 and November 2005 VA examination reports are not new and material. With respect to the veteran's hearing testimony as well as his other statements, the Board finds that the veteran's assertions alone cannot be dispositive of the issues for purposes of reopening the claim. The record on appeal does not indicate that the appellant has the expertise to provide an opinion that requires specialized knowledge, skill, experience, training or education, such as an opinion as to the etiology of hypertension or status post heart attack. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Generally, laypersons are not competent witnesses when it comes to offering medical opinions or diagnoses, and such evidence does not provide a basis on which to reopen a claim of service connection. Moray v. Brown, 5 Vet. App. 211 (1993). Thus, the veteran's assertions are not deemed to be "new and material evidence" and cannot serve to reopen the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Significantly, the evidence missing at the time of the March 1987 rating decision continues to be absent. Specifically, there remains no medical evidence showing that the veteran currently has retained metallic fragments in the left and right hands that are related to his military service. Accordingly, the Board finds that new and material evidence has not been presented to reopen the veteran's previously denied claim for service connection for retained metallic fragments in the left and right hands. B. Diabetes Mellitus and Arthritis of Multiple Joints In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is not entitled to service connection for diabetes mellitus and for arthritis of multiple joints. The veteran's service medical records are negative for any complaints, treatment, or diagnosis of diabetes mellitus or arthritis. In fact, he did not seek treatment for such disorders for many decades following his separation from service. Therefore, the Board finds that diabetes mellitus and arthritis of multiple joints did not manifest during his period of service or within one year thereafter. With regard to the decades-long evidentiary gap in this case between active service and the earliest complaints of diabetes mellitus and arthritis, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury or disease in service which resulted in chronic disability or persistent symptoms 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) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing complaints, symptoms, or findings for many decades between the period of active duty and the first complaints or symptoms of diabetes mellitus and arthritis is itself evidence which tends to show that diabetes mellitus and arthritis of multiple joints did not have their onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In addition to the lack of evidence showing that diabetes mellitus and arthritis manifested during service or within close proximity thereto, the medical evidence of record does not link any current diagnosis of diabetes mellitus or arthritis to the veteran's military service. As noted above, the medical evidence does not show that there was an event, disease, or injury in service to which a current disorder could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Nor is there is any medical evidence of record that links a current disorder to a disease or injury in service. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claims for service connection for diabetes mellitus and for arthritis of multiple joints. Because the preponderance of the evidence is against the veteran's claims, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for diabetes mellitus and arthritis of multiple joints is not warranted. C. Eye Disorder In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is not entitled to service connection for an eye disorder. The veteran's service medical records are negative for any complaints, treatment, or diagnosis of such a disorder. Moreover, the medical evidence of record does not show that the veteran sought treatment for an eye disorder immediately following his period of service or for many years thereafter. The Board finds this gap in time significant, and, as noted above, it weighs against the existence of a link between a current diagnosis of an eye disorder and his time in service. Cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Therefore, the Board finds that an eye disorder did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that an eye disorder manifested during service or within close proximity thereto, the medical evidence of record does not link a current disorder to his military service. As noted above, the medical evidence does not show that there was an event, disease, or injury in service to which a current disorder could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Nor is there is any medical evidence of record that links a current disorder to a disease or injury in service. Moreover, the veteran has not even alleged that he has an eye disorder that is directly related to service, as he has instead claimed that the disorder is secondary to his diabetes mellitus. Therefore, the Board finds that an eye disorder did not manifest during service and have not been shown to be causally or etiologically to an event, disease, or injury in service. The Board does acknowledge the veteran's assertion that he currently has an eye disorder that is secondary to his diabetes mellitus. However, the fact remains that service connection has not been established for the latter disability. As such, service connection for an eye disorder is not warranted on a secondary basis. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for an eye disorder. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for an eye disorder is not warranted. II. Increased Evaluation for Radiculopathy of Left Lower Extremity Applicable law provides that the Board shall not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108. Under VA regulations, an appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions a veteran needs to take to perfect an appeal. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the veteran or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). If a claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, he or she is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993). See also YT v. Brown, 9 Vet. App. 195 (1996); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992). Cf. Rowell v. Principi, 4 Vet. App. 9 (1993). In this case, a December 2005 rating decision granted service connection for radiculopathy of the left lower extremity and assigned a 10 percent disability evaluation effective from March 17, 2004. The veteran filed an NOD on February 17, 2006, seeking a higher initial evaluation, and the RO issued an SOC on September 1, 2006. A letter accompanying the SOC stated: To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9, Appeal to Board of Veteran' Appeals, which you may use to complete your appeal. We will gladly explain the form if you have questions. Your appeal should address the benefit you want, the facts in the Statement of the Case with which you disagree; and, the errors that you believe were made in applying the law. You must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed. If you need more time to file your appeal, you should request more time before the time limit for filing your appeal expires. The RO received the veteran's VA Form 9 on January 25, 2007. Unfortunately, this document was received well after the time limit for filing a substantive appeal, which, in this case, was December 6, 2006, which would have been one year since the issuance of the December 2005 rating decision. Nevertheless, the RO certified the veteran's appeal to the Board. However, the Board sent the veteran a letter in November 2007 explaining that the Board would be addressing a question pertaining to its jurisdictional authority to review the claim. In particular, the Board would consider whether his substantive appeal was received in a timely manner as to the issue of a higher initial evaluation for radiculopathy of the left lower extremity. It was also noted that he could submit additional evidence and/or argument and that he could request a hearing relevant to jurisdiction. However, to date, the Board has not received any response from the veteran or his representative in regards to whether a timely substantive appeal was filed. Additionally, the Board has considered whether the veteran or his representative filed a timely request for an extension of the time limit to file a substantive appeal. However, the Board notes that, prior to the expiration of the 60-day period for filing a timely substantive appeal, no document was filed by either the appellant or his representative that can be construed as a timely request for such an extension. Pursuant to 38 C.F.R. § 3.109, time limits for filing may be extended in some cases on a showing of "good cause." However, the Court decided in Corry v. Derwinski, 3 Vet. App. 231 (1992), that there is no legal entitlement to an extension of time, and that 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary. Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. However, the Board also notes that VA regulations specifically state that a request for an extension of the 60-day period for filing a substantive appeal must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303. The Court has addressed the issues of whether the language of 38 C.F.R. § 3.109(b) conflicts with that of 38 C.F.R. § 20.303, and, if so, which of these regulations should control. The Court held that 38 C.F.R. § 20.303 applies specifically to the filing of a substantive appeal, and that the two regulations do not conflict; rather the Court found that one is general and the other specific. The Court noted that a familiar tool of statutory construction was the "principle that a more specific statute will be given precedence over a more general one. . . ." Roy v. Brown, 5 Vet. App. 554, 556-557 (1993), citing Busic v. United States, 446 U.S. 398, 404 (1980); Preiser v. Rodriquez, 411 U.S. 475, 489-90 (1973). Significantly, the Court held that 38 C.F.R. § 20.303 takes precedence, and commented that a contrary view as to a regulatory scheme promulgated under statutory authority would make no sense. In this case, the Board notes that the veteran did not specifically request an extension of the time limit any correspondence. In fact, the veteran only submitted treatment records between the issuance of the September 2006 SOC and December 6, 2006. Therefore, the Board finds that the veteran did not submit a timely request for an extension of the time limit for filing a substantive appeal. In conclusion, the record shows that the veteran's substantive appeal was not timely filed. Furthermore, the record does not reflect that the veteran made a timely request for an extension of the time limit for filing her substantive appeal. See 38 C.F.R. § 20.303. There is simply no legal authority to permit the Board to find the veteran's substantive appeal timely in this case. Accordingly, the Board is currently without jurisdiction to consider his claim for a higher initial evaluation for radiculopathy of the left lower extremities, and the appeal is dismissed. ORDER New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for retained metallic fragments in the left and right hands is denied. Service connection for diabetes mellitus is denied. Service connection for an eye disorder s denied. Service connection for arthritis of multiple joints is denied. The appeal for a higher initial evaluation for radiculopathy of the left lower extremities is dismissed. REMAND Reasons for remand: To provide the veteran with proper notice, to notify him of the pertinent rating criteria, to obtain additional treatment records, and to afford him a VA examination. As discussed above, the law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). During the pendency of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. However, in this case, the Board notes that the veteran has not been adequately provided such notice, and thus, the case must be remanded for proper notice pursuant to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Board further notes the veteran has not been provided with all of the rating criteria pertinent to his claim for a higher initial evaluation for disc space narrowing at L4-S5 and wedging at T12-L1. In particular, the Board notes that the January 2005 statement of the case (SOC) contained Diagnostic Code 5003 and the General Formula for Diseases and Injuries of the Spine. However, the SOC and SSOCs did not provide the veteran with the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Therefore, the Board finds that the veteran should receive notice of the criteria pertinent to intervertebral disc syndrome. It also appears that there may be additional treatment records not associated with the claims file. In this regard, the Board notes that the veteran testified at a hearing before the Board in June 2007 that he received treatment at VA and that he had had been seen as recently as the previous three months. However, the claims file does not contain any treatment records dated after February 2006. Such records may prove to be relevant and probative. Therefore, as the claim is already being remanded for further development, the RO should attempt to obtain and associate with the claims file any and all treatment records pertaining to the veteran's service-connected back and left ankle disabilities. In addition, the Board notes that the veteran has not been afforded a VA examination in connection with his claim for service connection for stomach ulcers. The veteran's service medical records indicate that he was seen in February 1978 with complaints of abdominal pain, which the treating physician thought was most likely secondary to gastritis. The veteran sought additional treatment for a viral gastrointestinal syndrome in June 1979. A May 1982 radiographic report also notes that the veteran had abdominal pain in the epigastric area with a provisional diagnosis of gastritis and peptic ulcer disease. An accompanying emergency care and treatment report also showed him to have gastritis in May 1982. The veteran sought additional treatment in February 1986 for stomach cramps at which time he was assessed with gastroenteritis. In addition, his post- service medical records indicate that he has been treated for peptic ulcer disease. However, the evidence of record does not include a medical opinion based on a review of the veteran's claims file that addresses whether he currently has stomach ulcers that are causally or etiologically related to his symptomatology in service. Therefore, the Board finds that a VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of any and all stomach disorders that may be present. Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the veteran a notice letter in connection with his claims for an increased evaluation. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claims; (2) inform him about the information and evidence that VA will seek to provide; (3) inform him about the information and evidence he is expected to provide; and (4) ask him to provide any evidence in his possession that pertains to the claims. The letter should also include an explanation as to the information or evidence needed to establish a disability rating and an effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the letter should tell the claimant to provide medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. If the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the RO should provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The RO should request that the veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected back and left ankle disabilities. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for VA treatment records dated from February 2006 to the present. 3. The veteran should be afforded a VA examination to determine the nature and etiology of any stomach ulcers that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the service medical records, and comment as to whether it is at least as likely as not that the veteran currently has stomach ulcers that are causally or etiologically related to his symptomatology in service or is otherwise related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraphs. Further development may include affording the veteran another VA examination, if he submits additional information and evidence that shows his disabilities may have increased in severity since his last VA examinations. 5. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth all applicable laws and regulations pertaining to each issue, including the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant unless he is notified. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs