Citation Nr: 1210285	
Decision Date: 03/20/12    Archive Date: 03/30/12

DOCKET NO.  04-31 1052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for malaria.

2.  Entitlement to service connection for hepatitis C.

3.  Entitlement to an increased evaluation in excess of 50 percent for PTSD with generalized anxiety reaction.

4.  Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II.

5.  Entitlement to an increased evaluation in excess of 30 percent for desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure prior to August 30, 2002.

6.  Entitlement to an increased evaluation in excess of 60 percent for desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure from August 30, 2002.


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran served on active duty from August 1968 to April 1970.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from April 2002, October 2002, and July 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO) which 1) granted a 30 percent evaluation for PTSD with generalized anxiety reaction effective June 4, 2001; 2) granted a 30 percent evaluation for status post exposure to Agent Orange with desquamating skin lesions of the back, chest, shoulder, and head effective June 4, 2001; 3) granted service connection for diabetes mellitus due to herbicide exposure with a 20 percent evaluation effective January 31, 2002; 4) denied service connection for malaria because the evidence submitted was not new and material; and 5) denied service connection for hepatitis C. 

In a subsequent July 2005 rating decision, the RO granted an increased 60 percent evaluation for status post exposure to Agent Orange with desquamating skin lesions of the back, chest, shoulder, and head effective August 30, 2002; and in a July 2005 supplemental statement of the case, the RO granted an increased 50 percent evaluation for PTSD effective June 4, 2001.  The Board has accordingly recharacterized the issues on appeal.

The record shows that the Veteran was scheduled for a travel Board hearing in June 2007; his travel Board hearing was rescheduled on several occasions upon his request.  The Veteran was most recently scheduled for a September 2011 travel Board hearing.  His motion to reschedule the September 2011 hearing was denied.  The Veteran failed to appear at the scheduled hearing, and his hearing request has accordingly been withdrawn.  See 38 C.F.R. § 20.702 (2011).

The issues of entitlement to service connection for hepatitis C and entitlement to an increased evaluation in excess of 50 percent for PTSD 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.  An unappealed December 1970 rating decision denied service connection for malaria. 

2. The evidence received since the December 1970 rating decision does not relate to an unestablished fact necessary to substantiate a claim for service connection for malaria.

3.  The Veteran's diabetes mellitus, type II, has been managed by insulin, the use of oral hypoglycemic agent and restricted diet, or by a restricted diet alone; regulation of activities was not required to control diabetes. 

4.  Prior to August 30, 2002, desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure are characterized by erythematous lesions on the top of the head and on the chest, back, and shoulders.  The skin lesions were not associated with systemic and nervous manifestations.  

5.  From August 30, 2002, desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure are characterized by blotchiness and lichenification affecting 100 percent of exposed body areas and 90 percent of the whole body, and hyperpigmentation and abnormal texture of greater than six square inches.  There was no ulceration, exfoliation, or crusting of the skin and no tissue loss, loss of motion, or systemic disease.


CONCLUSIONS OF LAW

1. The December 1970 rating decision, which denied service connection for malaria is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). 

2. The evidence received subsequent to the December 1970 rating decision is not new and material; the claim for service connection for malaria is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a) (2011). 

3.  The criteria for an evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2011). 

4.  Prior to August 30, 2002, the criteria for an evaluation in excess of 30 percent for desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7806 and 7817 (in effect prior to Aug. 30, 2002).

5.  From August 30, 2002, the criteria for an evaluation in excess of 60 percent for desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7806 and 7817 (in effect prior to and from Aug. 30, 2002).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A. Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).  Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004).  

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).  With respect to new and material evidence claims, VA must notify a claimant of the evidence and information that is necessary to (1) reopen a claim, and (2) establish entitlement to the underlying claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1) (2011); Kent v. Nicholson, 20 Vet. App. 1 (2006).  Thus, VCAA notice must include an explanation of the meaning of both "new" and "material" evidence, and must describe the particular type of evidence necessary to substantiate any service connection elements found to be insufficiently shown at the time of the prior final denial. 

A January 2004 VCAA notice letter addressed the Veteran's claims for service connection for malaria and hepatitis C.  The VCAA notice letter informed the Veteran of the evidence necessary to substantiate his claim, informed the Veteran of evidence VA would reasonably seek to obtain, and informed the Veteran of the information and evidence for which he was responsible.  The letter also provided the Veteran with an explanation of the meaning of both "new" and "material" evidence and provided notice of the particular type of evidence needed to substantiate elements found to be insufficiently shown at the time of the previous denial of service connection for malaria.

The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date in March 2006.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran was not provided with initial VCAA notice addressing a claim of service connection for diabetes mellitus, and was not provided with VCAA notice addressing his claim for an increased rating for desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure.  Despite the inadequate notice, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In that regard, with respect to the claim for service connection for diabetes mellitus, the RO awarded service connection in an October 2002 rating decision and assigned a 20 evaluation effective January 31, 2002.  Therefore, VCAA notice and its application is no longer required because the original claim has been "substantiated."  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

With respect to the claim for an increased rating for desquamating skin lesions, the Veteran was provided the diagnostic criteria for establishing a higher rating in a June 2004 statement of the case.  Given the nature of the Veteran's claim; the fact that he was provided with notice of the information and evidence VA would reasonably seek to obtain and the information and evidence for which he was responsible in a January 2004 VCAA notice addressing his other claims on appeal; and the fact that he was provided with the criteria required for establishing a disability evaluation and an effective date in a March 2006 VCAA notice letter, the Board finds that a reasonable person would have generally known about the requirements necessary to establish a an increased rating in this case.  Therefore, the Board finds that any error in failure to provide proper VCAA notice with respect to this issue is not prejudicial.  There is no indication that any notice deficiency reasonably affects the outcome of this case.  Moreover, the Veteran has not alleged that any prejudice resulted from any VCAA notice error.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). 

The Veteran's service treatment records, private treatment records, VA authorized examinations, and lay statements have been associated with the claims file.  38 C.F.R. § 3.159(c)(4) (2011).  The Board notes that with respect to the Veteran's new and material evidence claim, VA is not required to obtain an examination for a claim to reopen a finally decided decision.  38 C.F.R. § 3.159(c).  The Veteran was afforded a VA authorized examinations in January 2002, May 2002, and April 2005.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As set forth in greater detail below, the Board finds that, cumulatively, the examinations obtained in this case are adequate as they are predicated on a review of the Veteran's medical history; contain a description of the history of the disabilities at issue; document and consider the Veteran's complaints and symptoms; and fully address the relevant rating criteria.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices.  The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2011).  

B.  Law and Analysis

1.   New and Material Evidence 

In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011).  In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

The RO previously considered and denied a claim for service connection for malaria in April 1970 and December 1970 rating decisions.  The Board is required to determine whether new and material evidence has been presented before it can reopen a claim and readjudicate service connection or other issues on the merits.  See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). 

If new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).  New evidence means existing evidence not previously submitted to agency decisionmakers.  38 C.F.R. § 3.156(a) (2011). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id.  

Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence.  Justus v. Principi, 3 Vet. App. at 512 (1992). 

The last final rating decision was in December 1970.  In that decision, the RO found malaria claimed by the Veteran was not shown by the record.  The Board notes that service treatment records, associated with the claims file prior to December 1970, indicate that the Veteran was hospitalized for treatment of malaria in September 1969.  Therefore, the Board finds that new and material evidence in this case must indicate that the Veteran has a currently diagnosed disability related to malaria in service.

Evidence received subsequent to the December 1970 rating decision in relation to the Veteran's claim includes: (1) VA authorized examinations; (2) private treatment records; and (3) lay statements from the Veteran.  This evidence is new in that it has not previously been received and is not cumulative or redundant of evidence previously of record. 

A January 2002 VA authorized examination shows that the Veteran reported contracting malaria in service; however, the VA examiner stated that he Veteran was treated and had no sequelae.  No residuals were noted on physical examination.  The Veteran was diagnosed with status-post malaria which had resolved.  A private treatment report dated in January 2002 notes that the Veteran had a history of malaria.  In various lay statements, the Veteran described being treated for malaria in service.  He reported experiencing weight loss, fever, use of an IV, and delirium in service.  He reported that malaria had affected him mentally.  

The Board finds that although the evidence received after the December 1970 rating decision is new, it is not material to the Veteran's claim for service connection for malaria.  While medical evidence of record and lay statements from the Veteran reflect a history of malaria, the Veteran's history of malaria in service was already established by service treatment records prior to December 1970.  No current diagnoses or residuals of malaria are shown by VA authorized examinations or private treatment records.  While the Veteran has indicated that malaria affected him mentally; the Veteran does not have a diagnosed psychiatric disability shown to be related to malaria.  The Board finds that the Veteran's statement does not provide competent evidence which relates a currently diagnosed disability to malaria in service.  See, e.g., Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness); See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  The Board notes, parenthetically, that the Veteran is currently service-connected for PTSD with generalized anxiety reaction based on psychiatric treatment in service.  

Essentially, private treatment records, VA authorized examinations, and lay evidence do not establish a currently diagnosed disability related to malaria in service; thus, they are not material.  In light of the foregoing, the Board finds that new evidence received in this case does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for malaria.

2.  Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2011).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2011). 

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  
The United States Court of Appeals for Veterans Claims (Court or CAVC) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.  The Board has considered whether staged ratings are for consideration.  The Board finds, that a staged rating is not warranted with respect to the Veteran's claim for an increased rating for diabetes mellitus, type II.  Because the RO issued a new rating decision in July 2005, granting an increased 60 percent evaluation for the  Veteran's desquamating skin lesions, effective August 30, 2002; the Board will evaluate the level of disability both prior to and from August 30, 2002.

Diabetes Mellitus, Type II

The Veteran is currently assigned a 20 percent disability rating for diabetes mellitus, type II, under the provisions of 38 C.F.R. § 4.119, Diagnostic Code 7913 (2011).  A 20 percent rating is assigned where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required.  38 C.F.R. § 4.119, Diagnostic Code 7913 (2011).  A 40 percent rating is assigned where insulin, restricted diet, and regulation of activities is required.  Id.  A 60 percent disability rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  Id.  A 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.  Id. 

The Board finds that the Veteran was properly rated at 20 percent for diabetes mellitus, type II, manageable by use of insulin or the use of oral hypoglycemic agent and restricted diet.   

A January 2002 VA authorized examination included a comprehensive metabolic panel.  The Veteran was diagnosed with hyperglycemia.  He had no complaints of polyuria, polyphagia, polydipsida.  Diabetes mellitus could not be established at that time with only one lab result.  The Veteran was advised to follow up with his treating physician.  

During a May 2002 VA authorized examination, the Veteran reported being diagnosed with diabetes mellitus in October 2001.  He reported weight loss in 2001 and frequent urination.  He had lost a total of approximately 30 pounds.  At that time, he began treatment with diet and oral medication, as well as insulin at bedtime.  He had a blood sugar level of 495 in October 2001; his current blood sugar level was 110 to 134.  The Veteran never had diabetic ketoacidosis or hypoglycemia.  He visited his doctor approximately six times a year.  He complained of weight loss, restricted diet, and partial bladder and bowel dysfunction that was intermittent.  His medication included 14 units of insulin at bedtime and three doses of Starlix a day.  Diabetes did not require laser treatment and did not affect the skin, heart, arteries, or kidneys.  A physical examination was completed.  

An April 2002 private treatment report shows that the Veteran stopped insulin and Starlix, and was careful about his diet.  According to home glucose monitoring, the Veteran was having markedly improved control of his diabetes on diet alone.  A May 2002 private treatment report shows that he Veteran had excellent diabetic control and was not on any hypoglycemic medications.

An April 2005 VA authorized examination shows that the Veteran had never been hospitalized for ketoacidosis of hypoglycimea.  He saw a doctor four times a year for diabetes.  He reported losing 25 pounds prior to being diagnosed with diabetes.  His weight at the time of the examination was stable.  The Veteran was not taking any medications for diabetes at the time of examination, although previously he was on Starlix and insulin.  He had a haphazard diabetic diet.  A physical examination was completed as well as diagnostic studies.  The examiner stated that there were no activity restrictions due to diabetes.  The Veteran was also diagnosed with neuropathy and impotence secondary to his diabetes mellitus.  The Board notes that the Veteran is separately service connected for peripheral neuropathy, erectile dysfunction, and renal dysfunction secondary to diabetes mellitus; these issues are not currently on appeal.

The Veteran's diabetes is shown to be controlled with the use of insulin, an oral hypoglycemic agent, and restricted diet; or, alternately, by restricted diet alone.  April 2002 and May 2002 private treatment reports and a more recent April 2005 VA examination show that the Veteran's diabetes mellitus was controlled on diet alone.  The Veteran is not shown to have regulation of activities required for control of his diabetes mellitus as required for a higher 40 percent rating under Diagnostic Code 7913.  See Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that where a higher rating lists all the criteria for the lower evaluation and additional criteria for the increase, the criteria are conjunctive and must all be shown before an increase is warranted).  An April 2005 examiner stated that the Veteran had no activity restrictions due to diabetes.  Therefore, the Board finds that a higher rating is not warranted for the Veteran's diabetes mellitus, type II. 

In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his claimed disability.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge; and as the Board finds that the Veteran's reports have been credible, his reports with respect to his symptomatology have been considered.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran's statements offered during his examinations and during the course of his medical treatment have been considered by the Board.  Based on those statements, in addition to findings provided during examination, the Board finds that a higher evaluation is not warranted for diabetes mellitus, type II. 

Desquamating Skin Lesions

During the pendency of this appeal, VA amended the rating schedule governing ratings of skin, 38 C.F.R. § 4.118, effective August 30, 2002.  See 67 Fed. Reg. 49590 -49599 (July 31, 2002).  The Board is required to consider the claim in light of both the former and revised schedular rating criteria.  VA's Office of General Counsel has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change.  However, both the old and the new regulations will be considered for the period after the change was made.  See VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g)  (West 2002). 

Parenthetically, the Board notes the Schedule for Rating Skin Disabilities was amended again in 2008 so that it more clearly reflects VA's policies concerning the evaluation of scars, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805; however, these changes only apply to applications received by VA on or after October 23, 2008, or if a veteran was previously evaluated under those codes and requests review under the clarified criteria.  See 73 Fed. Reg. 54708 (September 23, 2008).  The Veteran has not requested review under the clarified criteria, effective October 23, 2008.  Consequently, the Board finds that the revisions to the skin regulations that took effect October 23, 2008 are not for application here.

In the present case, the RO evaluated the Veteran's desquamating skin lesions of the back, chest, shoulder, and head under Diagnostic Code 7819-7806.  38 C.F.R. § § 4.118 (2011); see also 38 C.F.R. § 4.27 (2011) (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).

Under Diagnostic Code 7819, in effect prior to August 30, 2002, benign new growths of the skin are rated as scars, disfigurement, etc.  Additionally, unless otherwise provided, the disability may be rated as eczema dependent upon location, extent, and repugnant or otherwise disabling character of manifestations.  38 C.F.R. § 4.118, Diagnostic Code 7819 (effective prior to Aug. 30, 2002).  

Diagnostic Code 7800, in effect prior to August 30, 2002, assigns a 0 percent (noncompensable) rating for a slight scar, disfiguring the head, face, or neck; a 10 percent rating for a moderate, disfiguring scar; a 30 percent rating requires for a severe scar, especially if producing a marked and unsightly deformity of the eyelids, lips, or auricles; and a 50 percent rating for complete or exceptionally repugnant deformity of one side of the face or a marked or repugnant bilateral disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (effective prior to Aug. 30, 2002). 

Diagnostic Codes 7801 and 7802 pertain to scars resulting from third or second degree burns. 38 C.F.R. § 4.118, Diagnostic Codes 7801 and 7802 (effective prior to Aug. 30, 2002). 

Diagnostic Code 7803, in effect prior to August 30, 2002, assigns a maximum 10 percent evaluation for superficial scars that are poorly nourished with repeated ulceration. 38 C.F.R. § 4.118, Diagnostic Code 7803 (effective prior to Aug. 30, 2002). 

Diagnostic Code 7804, in effect prior to August 30, 2002, assigns a maximum 10 percent evaluation for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804 (effective prior to Aug. 30, 2002). 

Diagnostic Code 7805, in effect prior to August 30, 2002, rates other scars based on the limitation of the part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (effective prior to Aug. 30, 2002). 

Diagnostic Code 7806, in effect prior to August 30, 2002, provided a 10 percent evaluation for eczema with exfoliation, exudation, or itching, if involving an exposed area or extensive area; 30 percent evaluation for eczema with constant exudation or itching, extensive lesions, or marked disfigurement; and a maximum 50 percent evaluation for eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant.  See 38 C.F.R. § 4.118, Diagnostic Code 7806 (effective prior to Aug. 30, 2002). 

Under the amended rating schedule, effective from August 30, 2002, Diagnostic Code 7819 directs that benign skin neoplasms should be rated as a disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or based on impairment of function.  38 C.F.R. § 4.118, Diagnostic Code 7819 (effective from Aug. 30, 2002).

From August 30, 2002, the Veteran was assigned a 60 percent evaluation for desquamating skin lesions under the revised Diagnostic Code 7806.  Under Diagnostic Code 7806 (dermatitis or eczema), a maximum evaluation of 60 percent requires involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806 (effective from Aug. 30, 2002).  A disability under Diagnostic Code 7806 may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), or scars (Diagnostic Codes 7801, 7802, 7803, 7804, and 7805) depending on the predominant disability.  Id. 

Under the current rating schedule, disfigurement of the head, face, or neck is assigned a 10 percent evaluation with one characteristic of disfigurement.  38 C.F.R. § 4.118, Diagnostic Code 7800 (effective from Aug. 30, 2002).  A 30 percent evaluation is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. Id.  A 50 percent evaluation is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement.  Id.  An 80 percent evaluation is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes, ears, cheeks, lips), or; with six or more characteristics of disfigurement.  Id. 

The eight characteristics of disfigurement are: a scar, 5 or more inches in length; a scar, at least one-quarter inch wide at widest part; surface contour of a scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; hypo-or hyper-pigmented skin in an area exceeding 6 square inches; abnormal skin texture in an area exceeding 6 square inches; underlying soft tissue missing in an area exceeding 6 square inches; and indurated and inflexible skin in an area exceeding 6 square inches.  Id. at Note (1).  Tissue loss of the auricle and anatomical loss of the eye are rated under Diagnostic Codes 6207, 6061, or 6063 as appropriate.  Id. at Note (2).  Unretouched color photographs should be considered when evaluating under these criteria.  Id. at Note (3). 
 
Scars, other than on the head, face, or neck, that are deep or that cause limited motion, are evaluated under Diagnostic Code 7801.  38 C.F.R. § 4.118, Diagnostic Code 7801 (effective from Aug. 30, 2002).  Under Diagnostic Code 7801, a 10 percent evaluation is assigned for scars affecting an area or areas exceeding 6 square inches (39 sq. cm.); a 20 percent evaluation is assigned for scars affecting an area or areas exceeding 12 square inches (77 sq. cm.); a 30 percent evaluation is assigned for scars affecting an area or areas exceeding 72 square inches (465 sq. cm.); and a maximum 40 percent evaluation is assigned for scars affecting an area or areas exceeding 144 square inches (929 sq. cm.).  Id.  Scars in widely separated areas as on two or more extremities or on anterior or posterior surfaces of extremities or trunk, will be rated separately.  Id.  at Note (1).  A deep scar is one associated with underlying soft tissue damage. Id.  at Note (2). 

For scars, other than those of the head, face, or neck, that are superficial and that do not cause limited motion that comprise an area or areas of 144 square inches (929 sq. cm.) or greater, a maximum 10 percent evaluation is provided.  38 C.F.R. § 4.118, Diagnostic Code 7802 (effective from Aug. 30, 2002).  Scars in widely separated areas as on two or more extremities or on anterior or posterior surfaces of extremities or trunk, will be rated separately. Id.  at Note (1).  A superficial scar is one not associated with underlying soft tissue damage. Id.  at Note (2). 

For scars that are superficial and unstable, a maximum 10 percent evaluation is warranted.  38 C.F.R. § 4.118, Diagnostic Code 7803 (effective from Aug. 30, 2002).  The notes to this diagnostic code state that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar and that a superficial scar is one not associated with underlying soft tissue damage.  Id.  

For superficial scars that are painful on examination, a maximum 10 percent evaluation is provided.  38 C.F.R. § 4.118, Diagnostic Code 7804 (effective from Aug. 30, 2002).  The notes to this diagnostic code provide that a superficial scar is one not associated with underlying soft tissue damage and that a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation.  Id.  

Scars can also be assigned disability ratings based upon limitation of function of the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805 (effective from Aug. 30, 2002).

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability.  38 C.F.R. § 4.14 (2011).  However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994) (impairments associated with a veteran's service-connected disability may be rated separately unless they constitute the same disability or the same manifestation).

An August 2000 private treatment report shows that the Veteran had removal of skin lesions secondary to sun damage.  He had sun damaged skin throughout the scalp, forehead, malar areas of the cheeks, ears, upper back, and extremities.  The Veteran had pearly scaly lesions noted on the left ear helix and right nasal labial side of the nose.  He was assessed with a history of chronic sun exposure with diffuse actinic keratosis.  

A January 2002 VA authorized examination shows that the Veteran complained of a precancer skin condition which he treated with Efudex cream that he applied to his face.  A physical examination revealed erythematous desquamation of skin secondary to treatment.  The Veteran had erythematous maculate papular lesions on the top of the head as well as multiple erythematous lesions, lightly erythematous and somewhat desquamating, on the chest, back, and shoulders.  The skin lesions were not associated with systemic and nervous manifestations.  

During an April 2005 VA examination, the Veteran reported symptoms of pain, crusting, ulcer formation, and shedding.  These symptoms were constant.  They involved areas exposed to the sun, including the head, face, hands and neck.  Treatment over the past 12 months consisted of liquid nitrogen applications.  The functional impairment for the skin condition was that the Veteran was unable to leave his home, and he avoided exposure to the sun.  A physical examination shows that the Veteran had generalized blotchiness of his entire body.  He had lichenification of his skin.  He had spider angiomata of his chest. There was no ulceration, exfoliation or crusting.   Lesions to the exposed area of the body was 100 percent.  Lesions to the whole body was 90 percent.  There was no tissue loss and no induration of greater than six square inches.  There was no inflexibility.  There was no hypopigmentation.  Hyperpigmentation was greater than six square inches.  There was abnormal texture of greater than six square inches.  There was no limitation of motion.  The skin lesions were not associated with systemic disease, but with a nervous condition.  The Veteran reported that with emotional distress, his symptoms involving the skin were increased.  Although three scars were identified on examination, these scars were not secondary to the Veteran's service-connected skin lesions.  

Prior to August 30, 2002, the Veteran was assigned a 30 percent evaluation for desquamating skin lesions under Diagnostic Code 7806.  The Board finds that a higher 50 percent evaluation is not warranted prior to August 30, 2002, where the Veteran's skin disability is not shown to result in ulceration or extensive exfoliation or crusting and systemic or nervous manifestations; or is his skin disability exceptionally repugnant.  See 38 C.F.R. § 4.118, Diagnostic Code 7806 (effective prior to Aug. 30, 2002).  Although a January 2002 VA authorized examination reflects desquamation, or peeling of the skin, secondary to treatment; the Veteran's skin disability was not shown to result in ulceration or extensive exfoliation or crusting and systemic and nervous manifestations.  The examiner noted that there were no systemic and nervous manifestations secondary to the Veteran's skin disability.  The evidence of record does not reflect a skin condition that is exceptionally repugnant.  The Board finds, therefore, that prior to August 30, 2002, an evaluation in excess of 30 percent is not warranted under Diagnostic Code 7806.  

From August 30, 2002, the Veteran was assigned an increased 60 percent evaluation for desquamating skin lesions under Diagnostic Code 7806 based on the revised Diagnostic Code, effective from August 30, 2002.  From August 30, 2002 the Board finds that an evaluation in excess of 60 percent is not available to the Veteran under either the old or the revised versions of Diagnostic Code 7806.  A 50 percent evaluation is the maximum rating available under Diagnostic Code 7806, in effect prior to August 30, 2002.  See 38 C.F.R. § 4.118, Diagnostic Code 7806 (effective prior to Aug. 30, 2002).  A 60 percent evaluation is the maximum rating available under the revised Diagnostic Code 7806, in effect from August 30, 2002.  See 38 C.F.R. § 4.118, Diagnostic Code 7806 (effective from Aug. 30, 2002).  Therefore, the Board finds that a higher evaluation is not available to the Veteran under either the old or revised versions of Diagnostic Code 7806.  

The Board has considered the potential applicability of other provisions of the code.  Prior to and from August 30, 2002, the Veteran's desquamating skin lesions are not shown to result in moderate, disfiguring scars; superficial scars that are poorly nourished with repeated ulceration; or superficial scars that are tender and painful on objective demonstration to warrant a rating under Diagnostic Code 7800, 7803, or 7804 in effect prior to August 30, 3003.  See 38 C.F.R. § 4.118, Diagnostic Code 7800, 7803, or 7804 (effective prior to Aug. 30, 2002).  The Board notes that although the Veteran reported ulceration of the skin at the time of an April 2005 VA authorized examination, the examiner found no objective evidence of ulceration, exfoliation or crusting on physical examination.  There was no indication that the Veteran's skin lesions resulted in disfiguring scars, and there is no indication that his skin lesions were tender or painful on objective demonstration at any time during the course of this appeal.  

From August 30, 2002, the Board finds that separate or higher evaluations are not warranted under the revised rating schedule based on scars.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (effective from Aug. 30, 2002).

Under the current rating schedule, a disfigurement of the head, face, or neck is assigned a 80 percent evaluation with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes, ears, cheeks, lips), or; with six or more characteristics of disfigurement.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800 (effective from Aug. 30, 2002).  An April 2005 VA authorized examination shows that there was no tissue loss and medical evidence of record does not reflect gross distortion of the features of the face, or disfigurement of the head due to the Veteran's service-connected skin disability.  Therefore, a higher 80 percent rating is not warranted under Diagnostic Code 7800.  

Diagnostic Code 7801, effective from August 30, 2002, assigns a maximum 40 percent evaluation for scars that are deep or that cause limited motion, affecting an area or areas exceeding 144 square inches.  38 C.F.R. § 4.118, Diagnostic Code 7801 (effective from Aug. 30, 2002).   The Board finds, therefore, that an evaluation in excess of 60 percent is not available to the Veteran under Diagnostic Code 7801.

Under Diagnostic Code 7802, a maximum 10 percent evaluation is assigned for scars that are superficial and that do not cause limited motion that comprise an area or areas of 144 square inches (929 sq. cm.) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802 (effective from Aug. 30, 2002).  While the Veteran's skin lesions are shown to affect the whole body; the Board finds that an evaluation in excess of 60 percent would not be warranted under Diagnostic Code 7802, even with consideration of separate10 percent ratings for each extremity and the trunk; nor are the Veteran's skin lesions shown to affect an area of 144 square inches or greater on each extremity or the trunk.  See Id. at Note (1).  

The Veteran's desquamating skin lesions are not shown to be unstable, painful on examination, and are not shown to result in limitation of function to warrant higher ratings under Diagnostic Code 7803, 7804, or 7805.  See 38 C.F.R. § 4.118, Diagnostic Code 7803, 7804, or 7805 (effective from Aug. 30, 2002).  An April 2005 VA examination shows that the Veteran did not have ulceration, exfoliation or crusting of his skin lesions, and there was no tissue loss.  There was no limitation of motion and the Veteran's skin lesions were not noted to be painful.  

The Board finds, therefore, that prior to August 30, 2002, an evaluation in excess of 30 percent is not warranted for desquamating skin lesions of the back, chest, shoulder, and head; and from August 30, 2002, an evaluation in excess of 60 percent is not warranted for desquamating skin lesions of the back, chest, shoulder, and head. 

In reaching the above conclusions, with respect to the Veteran's increased rating claim, the Board has not overlooked the Veteran's statements provided during his examinations.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain and weakness.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence during the course of his VA authorized examinations, and the Veteran's statements have been considered by the Board in assessing the current level of disability.  However, where the Veteran's statements are in conflict with objective findings on examination, as with the Veteran's reports of ulceration of the skin noted during his April 2005 examination, the Board has accorded greater probative weight to the objective evidence.  The Board notes, additionally, that with respect to the Rating Schedule, where the criteria set forth requires medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's examination reports have been accorded greater probative weight in this case.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.")  

Extraschedular Consideration

Consideration has also been given regarding whether any of the schedular evaluations discussed above are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2011); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

The Board finds that the evidence in this case does not reflect an exceptional disability picture such that the available schedular evaluations for the Veteran's service-connected diabetes mellitus or desquamating skin lesions of the back, chest, shoulder, and head are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disabilities as discussed above, with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology.  38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  The record shows that the Veteran's symptomatology due to his diabetes mellitus and desquamating skin lesions is adequately addressed by the schedular criteria.  The Veteran has not shown that the manifestations of either disability has resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate.  Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case.  




C.  Conclusion

The preponderance of the evidence is against finding that new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for malaria.  The preponderance of the evidence is against finding that the Veteran's diabetes mellitus, type II, warrants a higher rating evaluation.  Prior to and from August 30, 2002, the preponderance of the evidence is against finding that desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure warrants a higher rating evaluation.  In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claims.


ORDER

The application to reopen a claim of entitlement to service connection for malaria is denied.

An initial rating for diabetes mellitus, type II, in excess of 20 percent prior to August 30, 2002, is denied.

An increased rating for desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure, in excess of 30 percent prior to August 30, 2002, is denied.

An increased rating for desquamating skin lesions of the back, chest, shoulder, and head due to Agent Orange exposure, in excess of 60 percent from August 30, 2002, is denied.




	(CONTINUED ON NEXT PAGE)
REMAND

Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4)(i) (2011).  A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service.  See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). 

Hepatitis C

The Veteran contends that his hepatitis C is due to his exposure to blood and excrement from dead or wounded Marines in service.  The Board notes that the record indicates that the Veteran is a combat Veteran.  His Form DD 214 shows that he served as a rifleman with the United States marine Corps during the Vietnam Era, and service treatment records show that he was medically discharged due to an anxiety reaction due to stress from combat duty.  Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), service connection for a combat-related injury may be based on lay statements, alone, but do not absolve a claimant from the requirement of demonstrating current disability and a nexus to service, as to both of which competent medical evidence is generally required.  Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996).  Thus, the provisions of 38 U.S.C.A. § 1154(b)  do not allow a combat Veteran to establish service connection with lay testimony alone.  Rather, the statute relaxes the evidentiary requirements for determining what happened during service and is used only to provide a factual basis for a determination that a particular disease or injury was incurred or aggravated in service, not to link the service problem etiologically to a current disability.  Gregory v. Brown, 8 Vet. App. 563, 567 (1996).

Service treatment records dated in October 1969, November 1969, and February 1970 also show that the Veteran reported a history of past drug use, to include LSD.  
A January 2002 VA authorized examination shows that the Veteran has diagnosed hepatitis C confirmed by a laboratory examination; however, no opinion was provided with regard to the etiology of the Veteran's hepatitis C.  Private treatment record dated in 2003 and 2004 also reflect a diagnosis of hepatitis C.  However, a prior May 2000 private treatment report noted that lab work dated in July 1999 shows that the Veteran was negative for viral hepatitis, to include hepatitis A, hepatitis B, and hepatitis C.  The Veteran was also noted to have a diagnosis of alcoholic liver disease.

The Veteran has not yet been afforded a VA examination to address his hepatitis C. In light of the "low threshold" as announced in McLendon v. Nicholson, the Board finds that remand for a VA examination is necessary to determine if the Veteran's hepatitis C is related to his period of service, versus illicit drug use or other risk factors not associated with service. 

PTSD

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).   In the present case, the RO did not provide the Veteran with VCAA notice in regard to his PTSD.  The RO should address all VCAA notice deficiencies on remand.  

The Veterans Claims Assistance Act of 2000 (VCAA) requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain.  38 U.S.C.A. § 5103A (West 2002).  

The Veteran indicated that he has had continuous psychiatric treatment with Dr. B.L. for PTSD and anxiety since 2000.  He has provided VA with an authorization and consent for the release of information from Dr. B.L.  The RO sent an April 2004 letter to Dr. B.L. requesting a report of his findings and diagnosis, noting that VA did not have any records for the Veteran.  In a May 2004 response, Dr. B.L. indicated that he had been treating the Veteran for PTSD since 2000 and that his PTSD had been exacerbated more recently; however, private treatment reports from Dr. B.L. are not associated with the record.  Because the Veteran's current claim is for an increased rating, the Board finds that his psychiatric treatment reports would be helpful in assessing the current severity of his PTSD with anxiety.  In order to afford the Veteran every benefit of the doubt in this case, the Board finds that the RO/AMC should make an additional request from Dr. B.L., specifically for the Veteran's psychiatric treatment records.  Additionally, the RO/AMC should inform the Veteran that he may submit any such medical records directly to VA.

The Board also notes that the Veteran's most recent VA examination is more than six years old, and the Veteran has indicated in several statements that the recent death of his sons has exacerbated his PTSD.  Thus, the Board finds that an updated VA examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating.  See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support a decision on appeal for an increased rating). In light of the foregoing, the Board finds that a remand for an updated VA examination is necessary to assess the current severity of the Veteran's PTSD. 

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should send the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which addresses the Veteran's claim for an increased rating for PTSD.  

2.  After securing the any necessary release forms, the RO should obtain the Veteran's psychiatric treatment records from Dr. B.L., dating from 2000 to present.  If the search for such records has negative results, documentation to that effect must be added to the claims file.  The RO/AMC should inform the Veteran that he may submit any such records directly to VA. 
 
3.  The RO/AMC should refer the case for a VA examination within the appropriate specialty to address the likely etiology of his hepatitis C.  The claims folder, to include a copy of this Remand, must be made available to the examiner for review before the examination.  The examiner must review the entire claims file. 

The Veteran has identified a risk factor of having been exposed to blood and excrement from wounded Marines in service.  The Board notes that service treatment records and personnel records confirm that the Veteran is a combat Veteran.  Additionally, medical evidence of record shows that the Veteran has other possible risk factors for hepatitis C, to include drug use in service.  

The VA examiner should state, based on the available evidence, whether it is at least as likely as not that the Veteran's current hepatitis C is related to his active military service.  In responding, please include a discussion of all of the risk factors identified by the Veteran and by the medical record.  The Board also notes that while a January 2002 VA authorized examination revealed a current diagnosis of hepatitis C; private treatment records show that the Veteran did not have diagnosed viral hepatitis pursuant to lab work dated in July 1999.  

The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 

A complete rationale for all opinions and conclusions should be provided with references to findings in the claims file. 

4.  The RO/AMC should refer the case for an updated VA psychiatric examination to determine the current severity of the Veteran's service-connected PTSD with generalized anxiety reaction.  The claims folder must be made available to the examiner for review, and the examination report should reflect that such review was completed.  All indicated tests should be performed and the findings reported in detail.  The examination should specifically address any additional private psychiatric treatment records associated with the claims file, and should include a discussion the effects of the Veteran's service-connected PTSD with anxiety on the Veteran's occupational and daily activities

5.  After all development has been completed, the RO/AMC should review the case again based on the additional evidence.  If the benefits sought are not granted, the RO/AMC should furnish the Veteran with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This 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. 2011).




______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs