Citation Nr: 1037343 Decision Date: 10/01/10 Archive Date: 10/12/10 DOCKET NO. 06-31 977A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral lower extremity idiopathic peripheral neuropathy, to include as secondary to service-connected osteoarthritis, lumbar spine, or as due to radiation exposure. 2. Entitlement to an increased evaluation in excess of 20 percent for service-connected osteoarthritis of the lumbar spine. 3. Entitlement to an increased evaluation in excess of 10 percent for service-connected hidrosis of the hands. 4. Entitlement to an increased evaluation in excess of 10 percent for service-connected residuals, status post excision of squamous cell and basal cell carcinomas. 5. Entitlement to an effective date prior to April 13, 2006, for the grant of service connection for residuals, status post excision of squamous cell and basal cell carcinomas. 6. Entitlement to an effective date prior to June 1, 2006, for the grant of service connection for posterior subcapsular cataract, right eye, and nuclear sclerotic cataract, left eye, status post intraocular lens implant. 7. Entitlement to an effective date prior to April 13, 2006, for the grant of service connection for cutaneous T-cell lymphoma. 8. Whether new and material evidence has been received to reopen a claim of service connection for residuals of a right knee injury, claimed as right knee degenerative arthritis. 9. Whether a December 28, 1984, rating decision which denied service connection for residuals of radiation exposure was the product of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and his spouse ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from August 1947 to August 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bilateral lower extremity idiopathic peripheral neuropathy and increased ratings for osteoarthritis of the lumbar spine and hidrosis of the hands. These matters are also before the Board from the RO in Jackson, Mississippi, which granted service connection for posterior subcapsular cataract, right eye, and nuclear sclerotic cataract, left eye, status post intraocular lens implant, rated 30 percent effective from June 1, 2006; confirmed and continued the denial of service connection for residuals of a right knee injury; and determined that there was no CUE in the previous denial of service connection for radiation exposure in a July 2008 rating decision as well as from an April 2009 rating decision which granted service connection for cutaneous T-cell lymphoma, rated 100 percent from April 13, 2006 and residuals, status post excision of squamous cell and basal cell carcinoma, rated 10 percent from April 13, 2006. The Veteran's claims were adjudicated at the Jackson, Mississippi, RO because he filed his service connection claims based on the theory of ionizing radiation exposure and VA has centralized the processing of such claims at that RO. The RO in St. Petersburg, Florida, otherwise has jurisdiction of the Veteran's claims file. Subsequent to the statement of the case (SOC) and supplemental SOC, both dated in August 2009, VA received additional evidence from the Veteran. Insofar as the additional evidence may be pertinent to the claims on appeal, the Veteran has waived initial RO consideration. 38 C.F.R. § 20.1304(c) (2009). In May 2010, the Veteran provided testimony at a Board personal hearing (Travel Board hearing) before the undersigned Acting Veterans Law Judge in St. Petersburg, Florida. A transcript of the hearing is of record. The issues of service connection for a skin disorder of the feet, left upper extremity peripheral neuropathy, and sleep apnea have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to an increased rating and earlier effective date for residuals, status post excision of squamous cell and basal cell carcinomas, as well as whether new and material evidence has been received to reopen service connection for residuals of a right knee injury (claimed as right knee degenerative arthritis), are 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. On the record at the May 2010 Board personal hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal seeking an increased evaluation for service- connected osteoarthritis of the lumbar spine; there are no questions of fact or law remaining before the Board in this matter. 2. The Veteran was a participant in U.S. atmospheric nuclear testing, and is shown to have been exposed to ionizing radiation in service. 3. Bilateral lower extremity idiopathic peripheral neuropathy has been medically related to the Veteran's exposure to ionizing radiation in service. 4. During the increased rating appeal period, the Veteran's service-connected hidrosis of the hands have been manifested by occasional symptomatology, and the evidence shows treatment with corticosteroids and UVB; however, there is no evidence of such treatment for a total duration of 6 weeks or more, but not constantly, during a 12-month period. 5. The first communication from the Veteran evidencing intent to file a claim of service connection for bilateral cataracts was received on April 13, 2006, many years after his separation from service. 6. The first communication from the Veteran evidencing intent to file a claim of service connection for cutaneous T-cell lymphoma was received on April 13, 2006, many years after his separation from service. 7. The December 28, 1984 rating decision which denied the Veteran's original claim of service connection for residuals of radiation exposure, claimed as transient leucopenia, was appealed to the Board and was subsumed in a May 1987 Board decision. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran are met; the Board has no further jurisdiction in the matter of the increased rating for osteoarthritis of the lumbar spine. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 2. Resolving reasonable doubt in the Veteran's favor, service connection for bilateral lower extremity idiopathic peripheral neuropathy is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311 (2009). 3. The criteria for establishing an evaluation in excess of 10 percent for service-connected hidrosis of the hands have not been met for any period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7899- 7817, 7822 (2009). 4. The criteria for assignment of an effective date of April 13, 2006, but no earlier, for service connection for posterior subcapsular cataract, right eye, and nuclear sclerotic cataract, left eye, status post intraocular lens implant have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2009). 5. The criteria for assignment of an effective date prior to April 13, 2006, for the award of service connection for cutaneous T-cell lymphoma have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2009). 6. The Veteran's claim that a December 28, 1984, RO rating decision was clearly and unmistakably erroneous in denying service connection for residuals of radiation exposure lacks legal merit. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1100, 20.1104 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal for Increased Rating for Lumbar Spine Disorder The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101 (2009). Under 38 U.S.C.A. § 7105 the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the May 2010 hearing before the undersigned, the Veteran indicated (as the transcript of the hearing shows) that he was withdrawing his appeal in the matter of the rating for osteoarthritis of the lumbar spine. The Veteran has withdrawn his appeal in the matter of the rating for osteoarthritis of the lumbar spine. Hence, there remains no allegation of error of fact or law as to such issue for appellate consideration. Accordingly, the Board does not have jurisdiction to review an appeal in this matter, and it must be dismissed. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the issue of entitlement to service connection for bilateral lower extremity idiopathic peripheral neuropathy, there is no need to undertake any review of compliance with the VCAA and implementing regulations in this matter since there is no detriment to the Veteran as a result of any VCAA deficiency because the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The agency of original jurisdiction will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As for the claim for an increased rating for hidrosis of the hands, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Preadjudication VCAA notice was initially provided to the Veteran in a March 2005 letter, which advised him that he needed to submit evidence that his skin disability had gotten worse, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. That notice was supplemented by an August 2006 letter which further notified the Veteran of how VA determines disability ratings and advised him to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability. The letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability, and the effect that the disability has on his employment. An August 2009 SSOC then readjudicated the matter. With regard to the earlier effective date claims, since these are downstream issues from that of service connection (for which a VCAA letter was duly sent in September 2006), another VCAA notice is not required. VAOPGCPREC 8-2003. It appears that the United States Court of Appeals for Veterans Claims (Court) has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess, 19 Vet. App. at 491. Moreover, the September 2006 letter includes notice of how VA determines the effective date. On the allegations of clear and unmistakable error, the duties to notify and to assist under the VCAA are not applicable as the determination as to the existence of clear and unmistakable error is based on the facts and the law at the time the decision challenged was made, and no further factual development is appropriate. Parker v. Principi, 15 Vet. App. 407, 411-12 (2002) (VCAA is not applicable to a claim of clear and unmistakable error in a rating decision by the RO, citing Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). As to the VA's duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, private treatment records, hearing transcript, and statements from the Veteran and his representative in support of his claim. He has been examined by VA, to include in April 2005, July 2007, and July 2009 in connection with his claim for an increased rating for hidrosis of the hands, and the Board finds the examinations are adequate for rating purposes. These examinations include the detailed findings necessary to consider the applicable criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Insofar as there may be treatment records which have not been obtained, inasmuch as service connection for bilateral lower extremity idiopathic peripheral neuropathy is granted, evidence of ongoing dermatologic treatment in addition to the VA examination reports with respect to the hidrosis of the hands is of record, and the Veteran's communications are determinative of the claims for earlier effective dates for service connection, the Board finds that such records are evidence of ongoing treatment which are not necessary to substantiate or to decide the Veteran's claims. Finally, with respect to the Veteran's complaints that "VA has not made a formal inquiry despite repeated written requests to the Naval Dosimetry Center in Bethesda MD since March 26, 2006," such inquiry is not necessary with respect to the Veteran's claims because, as explained below, his status as a "radiation- exposed Veteran" is established. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument, as well as presenting for a VA examination and testifying before the Acting Veterans Law Judge in a Travel Board hearing. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Accordingly, the Board finds that the duties to notify and assist have been met. As a final matter, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Peripheral Neuropathy of the Lower Extremities The Veteran claims that his bilateral lower extremity idiopathic peripheral neuropathy is related to his exposure to radiation during participation in U.S. atmospheric nuclear testing while in the military. Alternatively, he claims that peripheral neuropathy of the lower extremities is secondary to his service- connected back disability. Resolving all reasonable doubt in the Veteran's favor, as required by 38 C.F.R. § 3.102, the Board finds that his bilateral lower extremity idiopathic peripheral neuropathy is linked to radiation exposure in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Service connection for a disability based on exposure to ionizing radiation can be demonstrated by three different methods. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected when they occur in "radiation-exposed Veterans." 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected, provided that certain conditions are met, pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With respect to the first method, the Department of the Navy has confirmed that the Veteran served as a member of a biomedical unit during Operation Greenhouse in 1951 and participated in Operation Tumbler-Snapper in 1952. The Veteran also claims involvement in an incident at the Naval Medical Research Institute in 1953. Although this incident is not verified, the Veteran is deemed a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d). The presumptive diseases associated with that classification are cancers. Notably, the disability for which the Veteran seeks service connection is not cancer and is not listed in the presumptive diseases. Therefore, although he is a radiation- exposed veteran, the presumption under 38 C.F.R. § 3.309 is not applicable. Relative to the second method of establishing service connection, 38 C.F.R. § 3.311 provides for steps to be taken in the case of certain radiogenic diseases, including obtaining dose data for atmospheric testing from the Department of Defense. The list of radiogenic diseases, however, is similar to those listed in the presumptive service connection section, in that they are primarily types of cancer. Peripheral neuropathy of the lower extremities is not listed. Therefore, service connection is not established under this provision. The Veteran's claim is considered under the third avenue to service connection - that of direct service connection established by medical nexus evidence. The United States Court of Appeals for the Federal Circuit has held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether his disability is otherwise the result of his military service. In other words, the fact that the Veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation. The evidence shows that the Veteran has bilateral lower extremity idiopathic peripheral neuropathy. Accordingly, the determinative issue is whether this condition is etiologically related to his military service, as he is alleging - to specifically include to his documented exposure to radiation during his period of military service. An April 2005 report of VA peripheral nerves examination includes a diagnosis of idiopathic predominantly axonal peripheral polyneuropathy bilateral lower extremities that is confirmed by electrodiagnostic studies. The examiner indicated that, without resorting to speculation, the current etiology remains idiopathic, and there is no evidence to support association of peripheral polyneuropathy with chronic low back pain. An April 2005 addendum to the above examination report includes an assessment of bilateral right greater than left lower extremity predominantly axonal idiopathic peripheral polyneuropathy that is without explanation. The examiner also noted "speculate undiagnosed vitamin B-12 deficiency or post radiation peripheral neuropathy (patient is on s/p military radiation exposure status) since more common causes are not likely." A May 2010 medical evaluation and report, prepared by Craig Bash, M. D., supports an award of service connection for peripheral neuropathy. After examination of the Veteran, review of his claims file (the Veteran provided Dr. Bash duplicates of his VA records), and a review of the medical literature, Dr. Bash opined that the Veteran currently has a severe peripheral neuropathy "very likely" as a result of his exposure to ionizing radiation during his naval service. Dr. Bash explained that the Veteran had radiation exposure in service, has peripheral neuropathy with involvement of his cutaneous peripheral nerves, and it is well known that radiation causes peripheral neuropathy. He further explained that radiation is known to scar and restrict the size of small blood vessels, and it is likely that the Veteran's radiation exposure is the cause of his neuropathy via the above mechanism, as his records do not contain another more likely cause of his neuropathy. There is no other opinion that contradicts Dr. Bash's May 2010 opinion. The Board finds the opinion by Dr. Bash to be competent and credible evidence that the Veteran's bilateral lower extremity idiopathic peripheral neuropathy is the result of his exposure to ionizing radiation in servicde. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of a medical opinion is based on the medical expert's personal examination of the patient, knowledge and skill in analyzing the data, and medical conclusion). The Board notes that Dr. Bash reviewed the claims file, examined the Veteran prior to rendering his opinion, and stated the bases for the opinion provided. For these reasons, the Board finds that the evidence as to whether the Veteran's bilateral lower extremity idiopathic peripheral neuropathy is the result of his exposure to ionizing radiation in service is at least in equipoise. As such, reasonable doubt must be resolved in favor of the Veteran. Therefore, service connection is warranted for bilateral lower extremity idiopathic peripheral neuropathy. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Inasmuch as service connection for bilateral lower extremity idiopathic peripheral neuropathy is granted on the basis that it is the result of his exposure to ionizing radiation in service, the theory of secondary service connection for bilateral lower extremity idiopathic peripheral neuropathy as secondary to the Veteran's service-connected back disability is now moot, and need not be addressed. Increased Rating for Hidrosis of the Hands The Veteran seeks an increased rating for his service-connected hidrosis of the hands, which is currently evaluated as 10 percent disabling. A review of his record shows that he is appropriately rated at 10 percent and an increased rating is not warranted for any period of increased rating claim. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2009). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for loss of time from work proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A veteran's entire history is to be considered when making a disability determination. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claim for increase was received in February 2005, the period for consideration is from February 2004 until the present. The Veteran's hidrosis of the hands is rated at 10 percent under 38 C.F.R. § 4.118, Diagnostic Codes 7899-7817. See 38 C.F.R. § 4.27 (2009) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). This hyphenated diagnostic code may be read to indicate that a skin disability is the service-connected disability, and it is rated as if the residual condition is exfoliative dermatitis (erythroderma) under Diagnostic Code 7817. Under Diagnostic Code 7817, a 10 percent rating is assignable for any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118. The Board notes that the portion of the Schedule for Rating Disabilities that addresses the skin was amended effective October 23, 2008. However, the amendments only apply to applications for benefits received by VA on or after October 23, 2008. Because the Veteran's claim was received in February 2005, the amendment is not relevant, and therefore, it will not be discussed. See 73 Fed. Reg. 54,708 (September 23, 2008). The Veteran's hidrosis of the hands has been rated 10 percent since May 1984. The instant claim for increase was received in February 2005. Notably, service connection is also in effect for cutaneous T-cell lymphoma and residuals, status post excision of squamous cell and basal cell carcinoma, which have been seperately evaluated. The focus of this decision is specifically with respect to the manifestations of and treatment for the Veteran's service-connected hidrosis of the hands. VA outpatient treatment reports in January 2005 note lesions on the palms of both hands which the Veteran was treating with goldenseal. In February 2005, the examiner noted no sign of current infection on examination of the hands. An April 2006 treatment report notes that the Veteran's was using TAC ointment with good results as needed and his hand and foot dermatitis was in remission. January 2005 photographs of the Veteran's hands show a lesion on the palm of the right hand as well as at the top of the inside of the left hand. An April 2005 VA skin examination report includes findings of minimal scaly red eczematous-like plaques on both hands and notes that the Veteran used multiple topical antifungal ointments with some relief, lidex cream has also helped, he has used some nonspecific oriental treatments, and had been using triamcinolone ointment and nystatin cream twice daily for six months, including at the time of examination. Similarly, private treatment records also include findings of a lesion on the top of the Veteran's left hand in October 2005 and reflect cryotherapy treatment. Private medical records show ongoing treatment predominantly for the Veteran's skin cancers - which are also service connected and separately rated. A December 2008 statement from the Veteran's private Doctor of Oriental Medicine (DOM) and Acupuncture Physician (AP) notes that the Veteran was initially seen in December 2004 with a complaint of chronic skin lesions on his hands and feet combined with lymphedema of the lower extremities. The examiner noted that the Veteran's treatment program and clinical course included frequent medical acupuncture treatments, low power laser acupuncture (500 mW) were applied to the skin lesions, lymph drainage massage, and purcutaneous electrical nerve stimulation. The Veteran was prescribed herbal medications by oral ingestion and topical application as well as dietary changes. He was also instructed in the home use of a 630 Nm medical laser for daily sessions as well as a full spectrum ultra violet light (UVB) to the groin, leg and any of the reappearing lesion areas. The examiner noted dramatic improvement in the palmer lesions on the hands with the use of the 500 mW medical laser light. The lesions were noted to be previously unresponsive to topical corticosteroids, and anti- fungal or antibiotic ointments. A July 2009 VA skin disease examination report (for the Veteran's hidrosis of the hands) notes that the Veteran has symptoms of pruritus, burning pain on both hands, and intermittent and diffuse pustular vesicular lesions. The treatment consisted of emollient lotion (Eucerin cream), triamcinolone cream, and nystatin ointment which is characterized as corticosteroid, other. The duration of the treatment during the previous 12 months was for 10 days. There was no rash present at the time of examination. The diagnosis was hidrosis of the hands that was not active on examination, and which had not effect on occupation or daily activities. During the May 2010 Travel Board hearing, the Veteran contended that the diagnosis of dermatitis dyshydrosis is incorrect, and that his skin condition should be rated under Diagnostic Code 7822 for papulosquamous disorder not listed elsewhere. Specifically, it was argued on behalf of the Veteran that, in his medical records, it showed that they wanted to examine him for hidrosis only because he made a statement about not being able to hold papers. However, his condition also included blistering, scaling, and dryness which are not what hidrosis is. It was further argued that the Veteran had these symptoms on his hands and feet; however, the 1984 rating decision only addressed his hands. At the outset, the Board notes that the Veteran is separately service connected for cutaneous T-cell lymphoma and residuals, status post excision of squamous cell and basal cell carcinomas. Separate disability ratings may only be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As such, the manifestations of those disabilities cannot be considered in the evaluation of the Veteran's service-connected hidrosis of the hands. After review of the evidence, the Board finds that an increased rating is not warranted under Diagnostic Code 7817 for any period. To warrant the next higher 30 percent evaluation under Diagnostic Code 7817, there must be evidence of exfoliative dermatitis with any extent of involvement of the skin and requiring systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. While throughout the course of the appeal the Veteran has been prescribed topical creams to treat his service-connected hidrosis of the hands and the evidence also shows treatment with corticosteroids and UVB, there is no evidence of such treatment for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. The record suggests that systemic therapy may have been provided for longer than six weeks in connection with the Veteran's service-connected cutaneous T- cell lymphoma and residuals, status post excision of squamous cell and basal cell carcinomas. However, an increased rating for his hidrosis, bilateral hands, based on such treatment is not permitted. See Esteban. The Board finds that the general picture created by the hidrosis of the hands, alone, does not more nearly approximates the disability picture contemplated by the 30 percent rating. Thus, a higher rating is not warranted under Diagnostic Code 7817. Similarly, the Board has considered whether a higher rating is warranted under Diagnostic Code 7806, for dermatitis or eczema, and Diagnostic Code 7822, for papulosquamous disabilities not listed elsewhere. Both of these diagnostic codes provide a 30 percent rating for dermatitis or eczema or papulosquamous disabilities not listed elsewhere that affects 20 to 40 percent of the entire body, that affects 20 to 40 percent of exposed areas, or that requires the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs (systemic therapy or intensive light therapy for Diagnostic Code 7822) for a total duration of six weeks or more, but not constantly, during the pas 12-month period. However, inasmuch as consideration is limited to the Veteran's hidrosis of the hands and his other skin disorders are rated separately, an increased rating under Diagnostic Codes 7806 and 7822 are also not warranted. See Esteban. The Board has considered whether a higher rating is warranted for disfigurement of the head, face, or neck under Diagnostic Code 7800 or for scars under Diagnostic Codes 7801, 7802, 7804, or 7805. 38 C.F.R. § 4.118. Because the involvement is not on the head, face, or neck; there is no demonstration of scarring of the hands which is deep and nonlinear, superficial and nonlinear, or unstable and painful; and there are no disabling effects not considered under Diagnostic Codes 7800 to 7804, the Veteran's disability does not need to be rated under Diagnostic Codes 7800 through 7805. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). His hidrosis of the hands is more appropriately evaluated analogous to exfoliative dermatitis, with the predominant disability best rated under Diagnostic Code 7817. The Board has considered whether a staged rating is warranted. However, the disability has not significantly changed, and a uniform evaluation is warranted for the entire initial rating period. Finally, the Board has considered whether the Veteran's claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. The threshold requirement for such referral is a finding that the schedular criteria are inadequate to reflect the manifestations/associated functional impairment of the disability rated. See Thun v.Peake, 22 Vet. App. 111 (2008). Here, the manifestations of the Veteran's hidrosis of the hands, of itself, are encompassed by the schedular criteria, and therefore such criteria are not inadequate. Notably, on July 2009 VA examination, the examiner noted no impact on occupation or daily activities as a result of the Veteran's hidrosis of the hands. Accordingly, referral for extraschedular consideration is not indicated. The evidence reflects that the Veteran is retired; the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 10 percent for hidrosis of the hands, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Earlier Effective Date for Service Connection for Lymphoma and Cataracts The Veteran contends that he is entitled to an effective date prior to June 1, 2006 for the grant of service connection for posterior subcapsular cataract, right eye, and nuclear sclerotic cataract, left eye, status post intraocular lens implant as well as an effective date prior to April 13, 2006, for the grant of service connection for cutaneous T-cell lymphoma. Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. This rule holds true in claims for service connection, except when such claim is received within one year after separation from service, in which case the effective date of the award is the day following separation from service. 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The record shows that in May 1984 VA received the Veteran's original VA Form 21-526, Veteran's Application For Compensation or Pension, in which he filed a service connection claim for multiple disabilities which included "radiation exposure" and "palmer dyshydrosis" but which did not include claims for a disability of the eyes or cutaneous T-cell lymphoma. Private treatment records show that the Veteran developed cataracts as early as 1987 and was diagnosed with nuclear sclerotic and posterior subcapsular cataract in the right eye and a nuclear sclerotic cataract in the left eye in 1993. Private treatment records also include a January 2006 treatment report which shows findings of cutaneous T-cell lymphoma. The record shows that VA received the Veteran's claim for an increased rating for his service-connected back disability and dermatitis, as well as his claim for service connection for bilateral neuropathy in his feet (secondary to his service- connected back disability) in February 2005. Again, he did not claim service connection for a disability of the eyes or cutaneous T-cell lymphoma at this time. The record next shows that, in correspondence date stamped as received on April 13, 2006, (notably, the communication itself is dated on April 18, 2006 and the date stamp may be for April 19, 2006; however, the ink is blurred and the RO read the date stamp as indicating April 13, 2006. This discrepancy is not crucial to the determination of this claim and the date of receipt of this communication will be accepted as April 13, 2006.) This April 13, 2006 communication includes the issues of cutaneous T-cell lymphoma as well as sub-capsular cataract, status post excision September 1995, and constitutes an informal claim under 38 C.F.R. § 3.155. A June 1, 2006 VA Form 119, Report of Contact, notes that the Veteran called to file claims, to include for service connection for lymphoma secondary to ionizing radiation exposure and bilateral cataracts secondary to ionizing radiation exposure. A July 2008 rating decision granted service connection for posterior subcapsular cataract, right eye and nuclear sclerotic cataract, left eye, status post intraocular lens implants rated 30 percent effective June 1, 2006, the date the RO identified as the date of receipt of the Veteran's informal claim. An April 2009 rating decision granted service connection for cutaneous T-cell lymphoma rated 100 percent effective April 13, 2006, the date the RO identified as the receipt of the Veteran's claim. Based on the above, the appropriate date of service connection claim for both bilateral cataracts and cutaneous T-cell lymphoma is April 13, 2006. Entitlement cannot precede the date of service connection claim (because even if entitlement arose prior to the date of claim, as shown in this case, the latter of the two dates would control). Thus, the correct effective date here for both posterior subcapsular cataract, right eye and nuclear sclerotic cataract, left eye, status post intraocular lens implant as well as for the grant of service connection for cutaneous T-cell lymphomais April 13, 2006. The Board has reviewed the record to determine whether there are any additional informal claims prior to April 13, 2006 with respect to the Veteran's cataracts or cutaneous T-cell lymphoma. However, no such claims are of record. It is further noted that, under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Here, the Veteran's April 2006 claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that his claims, be they formal or informal, of entitlement to service connection for posterior subcapsular cataract, right eye and nuclear sclerotic cataract, left eye, status post intraocular lens implant as well as cutaneous T-cell lymphoma were received prior to April 13, 2006. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993). In sum, per the informal claim received April 13, 2006, an earlier effective date to April 13, 2006 (thus, prior to June 1, 2006) for the grant of service connection for posterior subcapsular cataract, right eye and nuclear sclerotic cataract, left eye, status post intraocular lens implant is warranted. Similarly, inasmuch as the earliest claim for service connection for cutaneous T-cell lymphoma is April 13, 2006 (thus, the date currently assigned), an effective date prior to April 13, 2006 is not warranted for cutaneous T-cell lymphoma. Although the Veteran was diagnosed with posterior subcapsular cataract, right eye and nuclear sclerotic cataract, left eye, status post intraocular lens implant as well as cutaneous T-cell lymphoma prior to April 13, 2006, the effective date of service connection is determined by the date he filed his original claim with VA, and not the date entitlement arose. The Veteran has argued that he claimed service connection for radiation exposure in 1984; however, a claim for the residuals of such exposure identified as posterior subcapsular cataract, right eye and nuclear sclerotic cataract, left eye, status post intraocular lens implant and cutaneous T-cell lymphoma were not received by VA until April 13, 2006. Thus, there is no basis for assignment of an effective date prior to April 13, 2006, for service connection for posterior subcapsular cataract, right eye and nuclear sclerotic cataract, left eye, status post intraocular lens implant or cutaneous T-cell lymphoma. Clear and Unmistakable Error in a December 1984 Rating Decision A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. Pursuant to 38 C.F.R. § 3.105(a), previous determinations, which are final and binding, will be accepted as correct in the absence of CUE. Where the evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). A decision issued by the Board is final. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1100, 20.1104(a)(1). When the Board affirms a determination of the agency of original jurisdiction, such determination is subsumed by the final appellate decision. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103, 20.1104 (2009). In Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994), the Federal Circuit held that section 3.105(a) applies only to RO decisions, and not to Board decisions. In so holding, the Federal Circuit noted that to hold otherwise would permit an inferior tribunal, e.g., a regional office, to collaterally review the actions of a superior one, i.e., the Board. Smith, supra, at 1526. Subsequently, in Duran v. Brown, 7 Vet. App. 216, 224 (1994), the Court held that an RO decision "appealed to and affirmed by the Board" was thus "subsumed by the Board's decision," and could not be attacked on CUE grounds. See Donovan v. Gober, 10 Vet. App. 404(1997), aff'd sub nom. Donovan v. West, 158 F.3d 1377 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 1255 (1999). Here, the Veteran is alleging CUE in the December 28, 1984, RO decision that denied service connection for residuals of radiation exposure. He had specifically claimed service connection for leukopenia as a result of radiation exposure. However, that decision was subsumed, on appeal, by the Board's May 1987 decision, which also denied the claim. The Board specifically noted that the Veteran's radiation exposure had been confirmed by the Department of the Navy based on his participation in Operation Greenhouse in 1951 and Operation Tumbler-Snapper in 1952. However, an April 1963 examination specifically noted no residuals of radiation exposure and a 1984 VA examination rendered no diagnosis of leukopenia. Thus, the December 1984 decision which the Veteran now alleges was clearly and unmistakably erroneous is the same decision which was reviewed by the Board in May 1987. Therefore, the December 1984 RO rating decision was subsumed by the May 1987 Board decision. 38 C.F.R. § 20.1104. When the rating decision is deemed subsumed by a supervening Board decision, then as a matter of law the rating decision cannot be the subject of a claim of CUE. Rather, in such a case, the claimant "must proceed before the Board and urge that there was clear and unmistakable error" in the Board decision. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). To the extent the Veteran and his representative believe this issue was not adequately addressed by the Board in its May 1987 decision, such a contention is properly raised in a motion submitted directly to the Board requesting review of the Board's decision for CUE, rather than by pursuing a claim with the RO for revision of the RO's decision based upon CUE, because the Board's decision subsumed that RO decision. See 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. In a case where the law, and not the evidence, is dispositive, the claim should be denied, or the appeal to the Board terminated, because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the Veteran's claim that there was CUE in the December 28, 1984 RO decision must be denied. ORDER The appeal seeking an increased evaluation in excess of 20 percent for service-connected osteoarthritis of the lumbar spine is dismissed. Service connection for bilateral lower extremity idiopathic peripheral neuropathy is granted. An evaluation in excess of 10 percent for service-connected hidrosis of the hands is denied. An effective date of April 13, 2006, and no earlier, for service connection for posterior subcapsular cataract, right eye and nuclear sclerotic cataract, left eye, status post intraocular lens implant, is granted. An effective date prior to April 13, 2006 for service connection for cutaneous T-cell lymphoma is denied. The claim to revise the RO's December 28, 1984 rating decision on the basis of CUE is denied. REMAND In May 2009, the Veteran expressed disagreement with the July 2008 rating decision that reopened and denied the claim of service connection for degenerative arthritis, right knee (previously considered residuals of right knee injury) as well as with the April 2009 rating decision which granted service connection for residuals, status post excision of squamous cell and basal cell carcinomas, rated 10 percent from April 13, 2006. The Veteran has not yet been issued a statement of the case on these issues. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the issues of entitlement to an increased rating and earlier effective date for residuals, status post excision of squamous cell and basal cell carcinomas, as well as whether new and material evidence has been received to reopen a claim of service connection for residuals of a right knee injury (claimed as right knee degenerative arthritis), are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) Issue a statement of the case on the issues of 1) an increased rating for residuals, status post excision of squamous cell and basal cell carcinomas, 2) earlier effective date for residuals, status post excision of squamous cell and basal cell carcinomas, and 3) whether new and material evidence has been received to reopen service connection for residuals of a right knee injury (claimed as right knee degenerative arthritis). The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examinations, as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2009). 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). __________________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs