Citation Nr: 1011997 Decision Date: 03/31/10 Archive Date: 04/07/10 DOCKET NO. 08-12 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for cataracts, aphakia, and diabetic retinopathy. 2. Entitlement to an initial compensable disability evaluation for erectile dysfunction. 3. Entitlement to an initial compensable disability evaluation for bilateral hearing loss. 4. Entitlement to an initial compensable disability evaluation for peripheral neuropathy of the right upper extremity. 5. Entitlement to an increased disability evaluation for diabetes mellitus, currently evaluated as 20 percent disabling. 6. Entitlement to an increased disability evaluation for coronary artery disease, status-post stent replacement, currently evaluated as 10 percent disabling. 7. Entitlement to service connection for ingrown toenails of the feet. 8. Entitlement to service connection for sleep apnea. 9. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 10. Entitlement to service connection for kidney stones. 11. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension. 12. Entitlement to an effective date prior to May 22, 2006 for the grant of service connection for cataracts, aphakia, and diabetic retinopathy. 13. Entitlement to an effective date prior February 22, 2007 for the grant of service connection for erectile dysfunction. 14. Entitlement to an effective date prior February 22, 2007 for the grant of service connection for bilateral hearing loss. 15. Entitlement to an effective date prior February 22, 2007 for the grant of service connection for peripheral neuropathy of the right upper extremity. 16. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). 17. Entitlement to an extraschedular disability evaluation for service-connected disabilities. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Unfortunately, further development of the evidence is required before the Board can adjudicate the Veteran's claims of entitlement to increased disability ratings, entitlement to TDIU, and entitlement to an extraschedular disability evaluation. So, regrettably, these claims are being remanded to the RO via the Appeals Management Center (AMC). VA will notify him if further action is required on his part. FINDINGS OF FACT 1. In an unappealed March 2002 rating decision, the RO denied the Veteran's claim of entitlement to service connection for hypertension. 2. Evidence added to record since the RO's March 2002 rating decision was not previously of record, and is not cumulative and redundant of other evidence previously considered, but when viewed by itself or in the context of the entire record, does not relate to a fact not previously established that is necessary to substantiate the claim of entitlement to service connection for hypertension, nor does it raise a reasonable possibility of substantiating the claim. 3. Ingrown toenails of the feet were initially demonstrated years after service, and has not been shown by competent evidence to be causally related to the Veteran's active service. 4. Sleep apnea was initially demonstrated years after service, and has not been shown by competent evidence to be causally related to the Veteran's active service. 5. There is no evidence of peripheral neuropathy of the left upper extremity which is causally related to the Veteran's active service. 6. There is no evidence of kidney stones which are causally related to the Veteran's active service. 7. The Veteran underwent surgery for left eye cataract, associated with service-connected diabetes mellitus, on May 22, 2006; treatment records reflect aphakia and diabetic retinopathy. 8. The Veteran's claim of entitlement to service connection for erectile dysfunction was received by the RO on February 22, 2007. 9. The Veteran's claim of entitlement to service connection for bilateral hearing loss was received by the RO on February 22, 2007. 10. The Veteran's claim of entitlement to service connection for peripheral neuropathy of the right upper extremity was received by the RO on February 22, 2007. CONCLUSIONS OF LAW 1. The March 2002 RO decision that denied the Veteran's claim of entitlement to service connection for hypertension is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 2. New and material evidence has not been received to reopen the claim for service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2009). 3. Ingrown toenails of the feet were not incurred in, or aggravated by, active service and is not proximately due to or aggravated by service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.303, 3.304 (2009). 4. Sleep apnea was not incurred in, or aggravated by, active service and is not proximately due to or aggravated by service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.303, 3.304 (2009). 5. Peripheral neuropathy of the left upper extremity was not incurred in, or aggravated by, active service and is not proximately due to or aggravated by service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 6. Kidney stones were not incurred in, or aggravated by, active service and is not proximately due to or aggravated by service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.303, 3.304 (2009). 7. The requirements are not met for an effective date prior to May 22, 2006 for the grant of service connection for cataracts, aphakia, and diabetic retinopathy. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.155, 3.159, 3.400 (2009). 8. The requirements are not met for an effective date prior to February 22, 2007 for the grant of service connection for erectile dysfunction. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.155, 3.159, 3.400 (2009). 9. The requirements are not met for an effective date prior to February 22, 2007 for the grant of service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.155, 3.159, 3.400 (2009). 10. The requirements are not met for an effective date prior to February 22, 2007 for the grant of service connection for peripheral neuropathy of the right upper extremity. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.155, 3.159, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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. Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established significant new requirements with respect to the content of the VCAA notice for reopening claims. According to the Court, in the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. But see Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) ( "§ 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). It need not describe the VA's evaluation of the veteran's particular claim."). VA issued VCAA notice letters, dated in March 2007, April 2007, July 2007, and June 2008, from the agency of original jurisdiction (AOJ) to the appellant. The letter explained the evidence necessary to substantiate the Veteran's claims of entitlement to an earlier effective date and entitlement to service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The Board also finds that the VCAA notification letters are compliant with Kent as to the Veteran's petition to reopen. These letters specifically informed the Veteran as to what evidence would be necessary to substantiate the element or elements that were required to establish service connection that were found insufficient in the previous denials. The Veteran was told to submit evidence pertaining to the reason his claim of entitlement to service connection for hypertension was previously denied, and the letters notified the Veteran of the reason for the prior final denial (i.e., the elements of the service connection claim that were deficient). In addition, the letters from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the Veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. New and Material Evidence Legal Criteria Service Connection - In General A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including an organic disease of the nervous system, will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." The Board notes that there has been a regulatory change with respect to the definition of new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.156(a)). As the current petitions to reopen were received in April 2003, the new version of the regulation is applicable in this case. Under the revised version of 38 C.F.R. § 3.156(a), new evidence is existing evidence not previously submitted to agency decision-makers. Material evidence is existing evidence that, by itself or when considered with the previous evidence of record, relates to a fact, not previously established, which is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2009). If all of these tests are satisfied, the claim must be reopened. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). 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), but see 38 U.S.C.A. § 5103A (West 2005) (eliminating the concept of a well-grounded claim). Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered. 38 C.F.R. § 3.156(c). Analysis The Veteran's claim of entitlement to service connection for hypertension was initially denied by the RO in a March 2002 rating decision. The rating decision was not appealed and, thus, it is final. See 38 U.S.C.A. § 7105. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board remains whether new and material evidence has been presented to reopen the claim. The March 2002 rating decision denied the Veteran's claim of entitlement to service connection for hypertension on the basis that there was no evidence of hypertension during the Veteran's service and that the Veteran did not demonstrate that his current hypertension was related to his military service, including his service-connected diabetes mellitus. As stated above, in order to reopen a claim, evidence received must be both new and material. Additional evidence received after the prior final denial was not of record at the time of the final RO and Board decisions. The Veteran's VA medical records, as well as his multiple statements, are not cumulative and redundant of the evidence in the claims file at the time of the last final rating decisions. Thus, that evidence is considered "new." To be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claims. The basis for the RO's prior final denial was that there was no medical evidence of record demonstrating that the Veteran's claimed hypertension was incurred or aggravated during his military service, including as a result of his service-connected diabetes mellitus. The evidence of record, submitted by the Veteran during the years since the RO's last final rating decision, refers primarily to the evaluation and treatment, i.e., the current diagnosis and severity, of his current hypertension; the April 2007 VA examination report found that the Veteran's hypertension was not related to his military service, including his service-connected diabetes mellitus. See Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing the veteran's current condition are immaterial to issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence). The Board is mindful of the Veteran's assertions that he is entitled to service connection because he has hypertension. However, such statements must be considered in the context of the record as a whole to determine whether it raises a reasonable possibility of substantiating the claim. In this regard, the Board points out that, despite the Veteran's complaints related to his hypertension, the record remains devoid of any evidence linking the etiology of his hypertension to his military service. Moreover, there is no evidence that the Veteran was treated for hypertension during his military service, and the Veteran has not provided any objective, medical evidence indicating that the claimed hypertension is related to his military service. See Moray v. Brown, 5 Vet. App. 211, 214 (1993) (there must be medical evidence linking a current disability, even assuming the veteran has one, to his service in the military). Additionally, the Board acknowledges that the Veteran has repeatedly asserted that his hypertension began during his service in the military, or are related to events during his service, including his service-connected diabetes mellitus. However, such statements must be considered in the context of the record as a whole to determine whether it raises a reasonable possibility of substantiating the claim. In this regard, the Board points out that there is no medical evidence confirming that the Veteran had hypertension during his military service. Furthermore, while the Veteran's medical records show evidence of treatment for a hypertension since his service, the evidence does not demonstrate that the Veteran's current hypertension is related to his military service. As such, the additional evidence considered in conjunction with the record as a whole does not raise a reasonable possibility of substantiating the claim. In short, these medical records, as well as the Veteran's statements, do not demonstrate a causal relationship between his service in the military and his current hypertension, nor do these records otherwise verify the circumstances of his service. See Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6, 11 (1996). Merely reiterating previously made arguments, without independent verification of this, is insufficient grounds to reopen the claim. Cf. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312 (1992). In conclusion, new and material evidence to reopen the Veteran's previously denied claims for service connection for hypertension, including as secondary to service-connected diabetes mellitus has not been received subsequent to the last final RO decision. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As such, the Veteran's claim is not reopened. Entitlement to Service Connection Legal Criteria A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Analysis Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for ingrown toenails, sleep apnea, peripheral neuropathy of the left upper extremity, and kidney stones. 38 C.F.R. § 3.102. The Veteran's service medical records do not show that the Veteran complained of or was treated for ingrown toenails, sleep apnea, peripheral neuropathy of the left upper extremity, and kidney stones during his military service. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). Likewise, the Board points out that the Veteran did not make any complaints specifically related to his ingrown toenails, sleep apnea, peripheral neuropathy of the left upper extremity, and kidney stones at his military examination. This is probatively significant and given a lot of weight and credibility because this was at a time contemporaneous to the alleged incident in question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). While the Board acknowledges that the Veteran was diagnosed with ingrown toenails and sleep apnea since his military service, there is no evidence that these disorders are related to his military service; none of the Veteran's treating providers have associated his ingrown toenails and sleep apnea with his military service. Similarly, the Board notes that the Veteran has not been diagnosed with peripheral neuropathy of the left upper extremity and that there is no current evidence of kidney stones. In fact, the April 2007 VA examiner noted that the Veteran denied a history of kidney stones and found that there was no evidence of peripheral neuropathy in the left upper extremity. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1998) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1110 (formerly § 310)). In short, there is no medical nexus evidence of record linking his claimed disabilities to his military service. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). As such, in the absence of any evidence to the contrary, the Board concludes that the contemporaneous evidence of record fails to show that the Veteran's ingrown toenails, sleep apnea, peripheral neuropathy of the left upper extremity, and kidney stones were incurred during his active service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A Veteran seeking disability benefits must establish . . the existence of a disability [and] a connection between the Veteran's service and the disability . . ."). See also Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). Although the Veteran asserts that his claimed disabilities are related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. The Board observes that objective medical evidence generally is required to address questions of medical causation. Lay assertions of medical status do not constitute competent medical evidence for these purposes. Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997). Nevertheless, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a). While the Board finds that the Veteran is competent to report that he has ingrown toenails, sleep apnea, peripheral neuropathy of the left upper extremity, and kidney stones and that these disabilities are attributable to his service, little probative weight can be assigned to his statements associating his disabilities to his service, as the Board deems such statements to be less than credible. In this regard, the Board points out the absence of any corroborating medical evidence supporting his assertions, such as evidence of ingrown toenails, sleep apnea, peripheral neuropathy of the left upper extremity, and kidney stones during service or for many years thereafter, in and of itself does not render his statements incredible, such absence is for consideration in determining credibility. Similarly, the Veteran has not shown, however, that he has the expertise required to offer an opinion regarding any causal relationship between his claimed disabilities and active service. While the Veteran's contentions have been considered carefully, these contentions are outweighed by the medical evidence of record, which does not demonstrate that his claimed disabilities are attributed to active service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition). As such, the negative evidence of record is of greater probative value than the Veteran's statements in support of his claims. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2009), but does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the Board finds that there is a preponderance of the evidence against the Veteran's claims for service connection for ingrown toenails, sleep apnea, peripheral neuropathy of the left upper extremity, and kidney stones. Entitlement to an Earlier Effective Date Legal Criteria The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2009). Except as otherwise provided, the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The effective date of an award of service connection will be the day following the date of separation from service - if the veteran filed a claim within one year after service. Otherwise, the effective date will be the date of receipt of his claim. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). In cases involving a claim for higher compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from that date; otherwise, the effective date is the date the claim is received. See 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2009). See also Harper v. Brown, 10 Vet. App. 125 (1997). The applicable statutory and regulatory provisions require that VA look to all communications from the veteran that may be interpreted as applications or claims, both formal and informal, for benefits. VA is required to identify and act on informal claims for benefits. See 38 U.S.C.A. § 5102; 38 C.F.R. § 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). An informal claim must identify the benefit sought. See 38 C.F.R. § 3.155(a). In order for benefits to be paid under the laws administered by the VA, a specific claim in the form prescribed by the Secretary must be filed. See 38 U.S.C.A. § 5101; 38 C.F.R. § 3.151(a). All claims for benefits filed with the VA, formal or informal, must be in writing. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Analysis The Veteran's service in the military ended on October 27, 1967. Unfortunately, he did not file a claim for service connection for cataracts, erectile dysfunction, bilateral hearing loss, and peripheral neuropathy of the right upper extremity within one year of his discharge from service (i.e., by October 27, 1968). Nevertheless, the Veteran filed a claim for service connection for cataracts, erectile dysfunction, bilateral hearing loss, and peripheral neuropathy of the right upper extremity in February 2007. At that time, the Veteran submitted VA medical records indicating that he had been diagnosed with erectile dysfunction in May 2006. Thereafter, in a rating decision dated in November 2007, the RO granted entitlement to service connection for cataracts, erectile dysfunction, bilateral hearing loss, and peripheral neuropathy of the right upper extremity. The Board finds that the effective date of February 22, 2007 for the grant of service connection for erectile dysfunction, bilateral hearing loss, and peripheral neuropathy of the right upper extremity is appropriate; an effective date of May 22, 2006 was granted for cataracts, aphakia and diabetic retinopathy on the basis that it was an increase in the Veteran's service-connected diabetes mellitus. 38 C.F.R. § 3.400(o)(2) (2009). There is no indication the Veteran specifically acted to file a claim for service connection for cataracts, erectile dysfunction, bilateral hearing loss, and peripheral neuropathy of the right upper extremity prior to February 22, 2007. Indeed, he has not alleged that he made any attempts to file his claims prior to that date. As noted above, the file is entirely negative for any written communication from the Veteran indicating that he intended to file claims of entitlement to service connection for cataracts, erectile dysfunction, bilateral hearing loss, and peripheral neuropathy, until the Veteran's claims for TDIU and increased disability ratings were received on February 22, 2007. Moreover, the Board points out that the claimed disabilities were not shown in the Veteran's service medical records, nor confirmed by that VA examination prior to that date (with the exception of the cataracts, aphakia and diabetic retinopathy, which was shown in his VA treatment records on May 22, 2006), and the existence of the claimed disabilities was a necessary requirement for granting service connection under the law. As such, there is no basis for an effective date for service connection. See Sabonis v. Brown, 6 Vet. App. 426 (1994). See also 38 C.F.R. § 3.400(b). Moreover, the Board points out there is no provision for payment of benefits from an earlier date based on a disorder's existence from a date previous to the receipt of the claim, unless the claim is filed within one year of separation from service. See 38 C.F.R. §§ 3.400(b)(2). So, for these reasons, the Board finds that there is a preponderance of evidence against the Veteran's claims of entitlement to earlier effective dates for service connection of his cataracts, erectile dysfunction, bilateral hearing loss, and peripheral neuropathy of the right upper extremity. Therefore, his claims must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). (CONTINUED ON NEXT PAGE) ORDER The petition to reopen the claim for service connection for hypertension is denied. Entitlement to service connection for ingrown toenails of the feet is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for kidney stones is denied. The claim of entitlement to an effective date prior to May 22, 2006 for the grant of service connection for cataracts, aphakia, and diabetic retinopathy is denied. The claim of entitlement to an effective date prior to February 22, 2007 for the grant of service connection for erectile dysfunction is denied. The claim of entitlement to an effective date prior to February 22, 2007 for the grant of service connection for bilateral hearing loss is denied. The claim of entitlement to an effective date prior to February 22, 2007 for the grant of service connection for peripheral neuropathy of the right upper extremity is denied. REMAND The Veteran and his representative, in the multiple substantive appeals and written statements, assert that the Veteran's service-connected cataracts, aphakia and diabetic retinopathy, erectile dysfunction, bilateral hearing loss, peripheral neuropathy of the right upper extremity, diabetes mellitus, and coronary artery disease are worse than currently evaluated. The Board acknowledges that the Veteran was most recently afforded VA examinations in April 2007. Copies of the examination and assessment reports are associated with his claims file. In this regard, it is noted that the Court in Green stated that the fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995). As such, in order to effectively evaluate the Veteran's service-connected cataracts, aphakia and diabetic retinopathy, erectile dysfunction, bilateral hearing loss, peripheral neuropathy of the right upper extremity, diabetes mellitus, and coronary artery disease, more recent objective characterizations of these conditions and their associated symptomatology are required. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern). See also Fenderson v. West, 12 Vet. App. 119, 125- 26 (1999) (when the veteran appeals the initial rating assigned for his disability, just after establishing his entitlement to service connection for it, VA must consider his claim in this context - which includes determining whether he is entitled to a "staged" rating to compensate him for times since the effective date of his award when his disability may have been more severe than at other times during the pendency of his appeal). Therefore, additional VA examinations would be useful in evaluating the appeal. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). The Board notes that the issues of entitlement to an increased disability rating for the aforementioned disabilities are inextricably intertwined with the Veteran's claims of entitlement to TDIU and extraschedular evaluations, currently on appeal. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Hence, the Board will defer appellate consideration of the issues of entitlement to TDIU and extraschedular evaluations pending completion of the action requested below. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected cataracts, aphakia, and diabetic retinopathy. Conduct all testing and evaluation indicated and review the results of any testing prior to completion of the examination report. The examiner should also comment on the Veteran's current level of social and occupational impairment due to his service-connected cataracts, aphakia, and diabetic retinopathy. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. If no opinion can be rendered, an explanation should be set forth. The claims file should be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand. The examiner must indicate in the examination report whether or not review of the claims folder was made. Please also discuss the rationale of all opinions provided. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected erectile dysfunction. Conduct all testing and evaluation indicated and review the results of any testing prior to completion of the examination report. The examiner should also comment on the Veteran's current level of social and occupational impairment due to his service-connected erectile dysfunction. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. If no opinion can be rendered, an explanation should be set forth. The claims file should be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand. The examiner must indicate in the examination report whether or not review of the claims folder was made. Please also discuss the rationale of all opinions provided. 3. Schedule the Veteran for an audiogram and Maryland CNC speech recognition test to determine the current severity of his bilateral hearing loss. His VA claims file must be made available to the designated examiner for a review of the pertinent medical history. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be performed. The examiner is also requested to specifically indicate whether the Veteran's bilateral hearing loss has worsened since his October 2007 VA evaluation and, if so, to what extent. The examiner should report complaints and clinical findings in detail including pure-tone threshold averages and speech discrimination scores, and the basis for the examiner's opinion should be fully explained. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The claims file should be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand. The examiner must indicate in the examination report whether or not review of the claims folder was made. Please also discuss the rationale of all opinions provided. 4. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected peripheral neuropathy of the right upper extremity. Conduct all testing and evaluation indicated and review the results of any testing prior to completion of the examination report. The examiner should also comment on the Veteran's current level of social and occupational impairment due to his service-connected peripheral neuropathy of the right upper extremity. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. If no opinion can be rendered, an explanation should be set forth. The claims file should be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand. The examiner must indicate in the examination report whether or not review of the claims folder was made. Please also discuss the rationale of all opinions provided. 5. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected diabetes mellitus. Conduct all testing and evaluation indicated and review the results of any testing prior to completion of the examination report. The examiner should also comment on the Veteran's current level of social and occupational impairment due to his service-connected diabetes mellitus. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. If no opinion can be rendered, an explanation should be set forth. The claims file should be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand. The examiner must indicate in the examination report whether or not review of the claims folder was made. Please also discuss the rationale of all opinions provided. 6. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected coronary artery disease. Conduct all testing and evaluation indicated and review the results of any testing prior to completion of the examination report. The examiner should also comment on the Veteran's current level of social and occupational impairment due to his service-connected coronary artery disease. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. If no opinion can be rendered, an explanation should be set forth. The claims file should be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand. The examiner must indicate in the examination report whether or not review of the claims folder was made. Please also discuss the rationale of all opinions provided. 7. Following completion of the above, the RO should readjudicate the issues of entitlement to increased disability evaluations for cataracts, aphakia, and diabetic retinopathy, erectile dysfunction, bilateral hearing loss, peripheral neuropathy of the right upper extremity, diabetes mellitus, and coronary artery disease, as well as the issues of entitlement to TDIU and whether extraschedular evaluations should be assigned. Consideration must be given to all additional evidence received since issuance of the most recent statement of the case as to the matter. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The purpose of this remand is to further develop the record and afford due process. 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 argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs