Citation Nr: 0814978 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-12 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a disability evaluation in excess of 30 percent for residuals of a right tibial plateau fracture. 3. Entitlement to a disability evaluation in excess of 10 percent for residuals of a fracture of the second metacarpal in the right hand. 4. Entitlement to a disability evaluation in excess of 10 percent for residuals of burns to the head, neck, chest, and upper arm. 5. Entitlement to a compensable disability evaluation for residuals of a fracture of the second metatarsal head of the left foot. 6. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Army from February 1971 to February 1974, and from November 1990 to October 1991, to include service in Vietnam and the First Persian Gulf War (Operation Desert Storm). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The veteran was increased to a 50 percent evaluation for his PTSD and a 30 percent evaluation for his right leg disability in a November 2004 rating decision. As this does not represent a full grant of the benefit sought, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The veteran's appeal has been before the Board on previous occasions and, in August 2006, an opinion was sought from the Veterans Health Administration (VHA) with respect to the claim for service connection for hepatitis. That opinion has been obtained. The appeal was also remanded in August 2006 to comply with procedural due process of law, and those actions have also been taken. The veteran appeared at a Travel Board Hearing before the undersigned Veterans Law Judge in June 2005. A transcript is associated with the claims folder. The issues of entitlement to increased ratings for a right hand disability, a left foot disability, and scars of the neck, face, chest, and upper arm; and entitlement to service connection for hepatitis C are addressed in the REMAND appended to the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The psychiatric evidence of record shows that the veteran's service-connected PTSD is manifested by occupational and social impairment with deficiencies in most areas; it is not productive of total social or industrial impairment. 2. The veteran's service-connected residuals of a right tibial plateau fracture are symptomatic and productive of functional impairment; however, such residuals do not necessitate the wearing of a leg brace and there is no X-ray evidence of nonunion of the fracture; flexion of the right leg is not limited to less than 60 degrees, nor is extension of the leg limited to more than 5 degrees. CONCLUSIONS OF LAW 1. The criteria for a 70 percent evaluation for PTSD, but no more than 70 percent, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411 (2007). 2. The criteria for a rating in excess of 30 percent for residuals of a right tibial plateau fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261, 5262 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of these claims. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the veteran under the VCAA. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence 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 that the claimant provide any evidence in his possession that pertains to the claim. Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007) (outlining VCAA notice requirements); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of 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. This notice must also inform the veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. Further, in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008) , the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA 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; (2) 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 of 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; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The Board concludes that April 2004 and August 2006 VA letters sent to the veteran by the RO adequately apprised him of most of the information and evidence needed to substantiate the claims, and of the information it did not provide, any resulting prejudice has been rebutted. It is noted that the August 2006 letter was dispatched after the initial adjudication of the matter on appeal in response to the Board's remand of August 2006 for remedial compliance with notice requirements. The veteran has, both prior to the dispatch of this letter (statement of the case) and in subsequent correspondence (supplemental statement of the case), received information as to what was required in order to receive a higher evaluation for PTSD and his disability of the right leg, curing any defect as to timing on this issue. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The VCAA letters of record do not contain the level of specificity set forth in Vazquez-Flores. However, this decision grants an increased rating to 70 percent and, while specific information was not presented as to what criteria are considered in assessing the next highest rating of 100 percent, the veteran was subsequently presented this information in a statement of the case, which re-adjudicated the contested claim. See Prickett, supra (the issuance of fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). Moreover, the presumed error raised by such defect is rebutted because of evidence of actual knowledge on the part of the veteran and his representative and other documentation in the claims file reflecting such notification shows that that a reasonable person could be expected to understand what was needed to substantiate the claim for a 100 percent rating: Total social and industrial impairment. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). That is, the veteran and his representative have shown by the nature of the argument presented that they are aware of what information and evidence is needed to support a 100 percent schedular rating for PTSD and it is not contended otherwise. Id.; see also Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007). Regarding the pre-decisional dispatch of the criteria utilized in rating a disability of the tibia, the Board notes that post- decision documents notified the veteran of what was necessary to substantiate this claim as well as issuing a re- adjudication, curing the defect of notice. See Prickett, supra. While there was no information sent as to how disability rating or effective date is established (Dingess requirements) prior to the initial adjudication, it is noted that remedial notice was sent, and that any prejudice raised by the original deficiency is rebutted as the below decision represents a partial grant of a benefit sought on appeal (the preponderance of the evidence is against the next highest rating of 100 percent) and a denial of the benefit regarding the claim for an increase for the right leg disability, mooting the need for further notice. Dingess, supra. There is nothing alleged or present in the record which would affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication.). Regarding VA's duty to assist the veteran in obtaining evidence needed to substantiate his claims, the Board finds that all necessary assistance has been provided in this case. The evidence includes service medical records (SMRs) and post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. The Board notes that the veteran was provided thorough VA psychiatric and orthopedic examinations that are adequate for rating purposes. See 38 C.F.R. §§ 3.326, 3.327. The veteran has not alleged, nor does the clinical or X-ray evidence demonstrate, nonunion in the lower leg and/or a need for a leg brace. Under these circumstances, there is no duty to provide another orthopedic examination or medical opinion. Legal Criteria-Increased Ratings/General Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. For claims for an increase that do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." Legal Criteria-Increased Rating (PTSD) Diagnostic Code 9411 addresses PTSD. Under that code, evaluations may be assigned ranging between 0 and 100 percent. The veteran is currently assigned a 30 percent disability rating. This evaluation is in order when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when PTSD causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent rating is assigned for PTSD that causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The global assessment of functioning (GAF) is a scale reflecting the psychological, social and occupational functioning on a hypothetical continuum of mental health- illness. Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). See Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF from 61 to 70 indicates some mild symptoms, (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF from 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). DSM-IV, at 32; Richard v. Brown, 9 Vet. App. 266, 267 (1996). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis-Increased Rating, PTSD The veteran contends that his service-connected PTSD is more disabling than currently evaluated. As explained below, the Board agrees as the psychiatric evidence and testimony show that his PTSD more nearly approximate the criteria for a 70 percent rating. 38 C.F.R. § 4.130. The record contains several reports of VA psychiatric examinations, which address the severity of the service- connected PTSD. In November 2002, the veteran gave a history of substantial substance abuse and it was noted that he had not been employed since 1999. He reported that he could only work in a solitary environment due to his psychiatric symptoms. However, he was observed to have normal behavior and hygiene, and he did not report nightmares or hallucinations. No active psychosis was present and there was only a passing reference to suicidal ideation without a specific plan. He was assessed a GAF score of 68. A VA psychiatric examination in July 2004 revealed that the veteran's symptoms were noted to be moderate in degree and not disabling so as to preclude employment. Objectively, the veteran was noted to be hypervigilant with anger issues; however, no obsessive or ritualistic behavior was documented. There were no psychosis present but mood was noted to be affected. An overall GAF score of 50 was assigned, with a GAF of 55 attributed to his PTSD specifically. Contemporaneous with this most recent examination, the record shows a decline in day-to-day functioning from the veteran's assessment in 2002. Letters from the veteran's VA psychiatrist state that as of March 2004, the veteran was experiencing "significant impairment" due to his PTSD, and that there were "few aspects of [his] social interaction [abilities] intact." A February 2004 medical statement shows that the impairment is not limited to social functioning, as he was determined to have "severe occupational difficulty" as a result of his PTSD. Apparently, there has also been a regression regarding personal hygiene since 2002, as a clinical finding in January 2004 reflects that he was unkempt in appearance at that time. While the July 2004 VA examination shows moderate symptoms, the letters provided by the veteran's psychiatric providers illustrate that the severity of his PTSD, particularly regarding ability to work, is indeed greater than moderate, and shows an adverse impact in most areas of daily living. The totality of circumstances surrounding the veteran's psychiatric status shows that there has been a clinically verified worsening of the PTSD over the last several years. Specifically, the noted "severe" impairment in both social and occupational functioning, lack of appropriate personal hygiene, lack of employment for almost 10 years, and the presence of suicidal ideation (while passive), are indications of a occupational and social disability that is severe in nature with deficiencies in most areas. Accordingly, the criteria for the next highest evaluation of 70 percent have been met. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Regarding the question of whether the criteria for a 100 rating are met, the Board notes that the veteran does not display psychoses, and while there is a noted deviation in personal hygiene, there have been no clinical findings of grossly inappropriate behavior. The veteran is not a danger to himself or to others, and the psychiatric evidence does not show total social or industrial impairment, nor is there a competent opinion that indicates such a level of impairment. Id. The GAF scores reported in recent years (most recently 50 with 55 specifically for PTSD) do not support a finding of total social or industrial inadaptability. Thus, the criteria for a 70 percent rating, but no more than 70 percent, have been met. For the reasons stated above, the Board finds that the evidence supports a 70 percent rating for PTSD, but the preponderance of the evidence is against a rating in excess of 70 percent. Accordingly, the benefit of the doubt doctrine is not applicable to this latter aspect of the claim. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"). As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, whether or not the veteran raised them, including 38 C.F.R. § 3.321(b)(1), which governs extraschedular ratings. There is no indication of any hospitalizations for PTSD. While the veteran has been unemployed, there is no competent opinion that supports a finding of marked industrial impairment due to PTSD and the GAF scores are consistent with this conclusion. It is pertinent to note that a 70 percent rating takes into account severe industrial impairment. The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards". Thus, a referral for consideration of an extrashedular rating for PTSD is not warranted. 38 C.F.R. § 3.321(b)(1) (2006). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Increased Rating-Right Leg The veteran is currently in receipt of a 30 percent evaluation for residuals of a fracture to the right tibial plateau. He contends, in essence, that his disability is of greater severity than is contemplated by the assigned rating. The veteran's residuals of a fracture of the right tibial plateau are rated under Diagnostic Code 5262, which addresses impairment of the tibia or fibula. Under this Code, a maximum schedular 40 percent rating is available if the veteran can demonstrate that there is nonunion of the tibia or fibula, with loose motion, for which a brace is required. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. In reviewing the evidence of record, X-ray evidence (February 2004) demonstrates small, radiolucent defects seen in the proximal tibia. There is no clinical or X-ray evidence that suggests nonunion of the tibia or fibula. Furthermore, the veteran does not wear a right leg brace. Thus, the criteria for a higher evaluation under Diagnostic Code 5262 are not met. Id. The Board has considered whether a higher rating can be granted under alternative rating criteria. Specifically, while there is some indication of limitation of motion of the knee, the medical evidence does not show limitation of flexion of the knee to less than 60 degrees or limitation of extension to more than 5 degrees, even with consideration of the DeLuca factors, to include pain, weakness, and fatigue. 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra. The medical evidence does not show that such symptoms or any other signs or symptoms secondary to an old fracture of the right tibial plateau results in additional limitation of motion to a degree that would support a rating in excess of 30 percent, to include with consideration of whether separate ratings are warranted for limitation of flexion and extension of the knee. Id; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 and VAOPGCPREC 9-2004. The Board notes that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable to this issue because the preponderance of the evidence is against a rating in excess of 30 percent for the veteran's residuals of a fracture of the right tibial plateau. 38 U.S.C.A. § 5107(b); Ortiz, supra. The Board further finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the old fracture of the right tibia that would take the veteran's case outside the norm so as to warrant an extraschedular rating. The veteran's service-connected right leg disability is adequately rated under the available schedular criteria and 30 percent contemplates significant functional (including industrial) impairment. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. Bagwell, supra. ORDER Entitlement to a 70 percent evaluation for PTSD, but no greater than 70 percent, is granted, subject to the statutes and regulations pertaining to the payment of monetary benefits. Entitlement to a disability evaluation in excess of 30 percent for residuals of a right tibial plateau fracture is denied. REMAND The veteran contends that he is entitled to an evaluation in excess of 10 percent for residuals of second degree burns experienced as a result of a diesel engine fire which occurred while he was on active duty. The veteran was evaluated under Diagnostic Code 7802, which addresses scars other than on the head, face, or neck. Service connection is in effect for scars on the head (left jaw and neck), chest, and in the upper left arm or in three separate anatomical locations. The RO must consider whether separate compensable ratings are warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7804. Moreover, upon review of the claims file it is apparent that the veteran was not afforded a scar examination to address the current status of his scars after his filing of a petition for an increase. There are some notations in the clinical treatment reports and examination of November 2002 which mention his scars; however, given that he has indicated that his burn scars are currently symptomatic and warrant compensable ratings, a current examination is necessary to adjudicate this matter. 38 C.F.R. § 3.327. With regard to the disabilities of the right hand and left foot, there has not been a VA examination given to assess the severity of these disabilities specifically since November 2002. While the record contains clinical findings of treatment for both the hand and foot disabilities, the Board is of the opinion that a comprehensive examination is necessary in order to determine the current severity of the residuals of fractures of the right and left foot. While the date of an examination is not, in and of itself, a reason for a remand, the Board notes that as current severity of the conditions are of primary concern, it is not appropriate to rely on results dated nearly six years ago. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Thus, in addition to the requested dermatology examination, the Board finds that an orthopedic examination is necessary. Id.; see also 38 C.F.R. § 3.327. Service Connection-Hepatitis C The veteran has a current diagnosis of hepatitis C, which he attributes to his several periods of service, to include active duty in both Vietnam and in the first Persian Gulf War. He has not been afforded an examination to address the etiology of his hepatitis, apparently because the RO has determined that there was no evidence of exposure to risk factors in service. The Board, in January 2006, ordered the claim to be dispatched to a specialist to determine if it was likely that a blood transfusion took place during an in- service surgery to correct the right tibial plateau fracture, and if so, if there was a relationship between a blood transfusion and the onset of hepatitis C. A surgeon responded that, based on evidence provided in the service medical records, it was unlikely that a blood transfusion occurred. While this opinion is unequivocal regarding the question of blood transfusion, the Board notes that there is a documented in-service burn incident which has not been addressed. The veteran's history is also positive for drug abuse, which can be a risk factor for hepatitis C. The subcutaneous blood exposure in the form of burn injuries sustained while on active duty during the First Persian Gulf War is a corroborated event which produced multiple service- connected disabilities (burn scars and PTSD). Inherent in suffering a second degree burn is exposure of blood to the elements as well as the experience of having the burn agent cause a degree of necrosis in the affected tissue. As such, a thorough examination must be afforded addressing any relationship the veteran's current hepatitis could have with his periods of military service, to include the burn incident in the Persian Gulf, as well as his service in Vietnam, where hepatitis was endemic. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). It is noted, however, that while the veteran's service in Vietnam is not in dispute, he does not have verified combat service, and thus the Board cannot accept as fact allegations regarding exposure to blood for that period of service without corresponding documentation of the occurrence of the alleged events. See 38 U.S.C.A. § 1154. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. Schedule the veteran for a VA dermatology examination for the purpose of determining the severity of his service- connected burn scars of the neck, face, chest, and upper arm. The scars must be measured and described in detail, to include whether they are deep or superficial, unstable, painful on examination, or otherwise cause a limitation of function of the affected part. 3. Schedule the veteran for VA orthopedic examination for the purpose of determining the severity of his service-connected residuals of fractures of the second metacarpal in the right hand and second metatarsal in the left foot. All indicated tests should be performed, to include range of motion studies. The examiner should note any additional loss of finger, wrist or foot motion due to pain or flare-ups of pain from the service-connected residuals of the fractures at issue, supported by objective findings, and whether there is any such additional limitation of motion due to excess weakness, fatigability, incoordination, or any other relevant symptom or sign attributable to the old right metacarpal and/or left metatarsal fractures. 4. Schedule the veteran for VA examination to determine the nature, approximate onset date and/or etiology of his hepatitis C. Following a review of the relevant evidence in the claims file, obtaining a detailed history from the veteran, to include military and social histories; the clinical evaluation and any tests that are deemed necessary, and the examiner is asked to provide an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the veteran's hepatitis C began during service or is causally linked to any incident of service, to include burns experienced during the First Persian Gulf War, or with general service in Vietnam. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and indicate that the claims file was reviewed. If a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 3. After the development requested above has been completed to the extent possible, re-adjudicate the veteran's claims. If any benefit sought on appeal is denied or, in the case of the increased rating claims, not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs