Citation Nr: 1229124 Decision Date: 08/24/12 Archive Date: 08/30/12 DOCKET NO. 09-05 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a skin disability, to include dermatophytosis and tinea pedis. 2. Entitlement to service connection for an eye disability. 3. Entitlement to service connection for memory loss. 4. Entitlement to service connection for onychomycosis, claimed as loss of toe nail. 5. Entitlement to service connection for hypertension. 6. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU), prior to December 12, 2011. REPRESENTATION Appellant represented by: Kristina Vasold, Attorney ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from February 1969 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, on brokerage for the RO in Denver, Colorado, and an August 2010 rating decision of the RO in Denver, Colorado. The October 2007 rating decision denied the appellant's claims for entitlement to service connection for a skin condition, an eye condition, memory problems, loss of toe nails, and high blood pressure. The August 2010 rating decision denied entitlement to a TDIU. The appellant filed a timely notice of disagreement with a December 2009 rating decision which denied the appellant's claims for entitlement to an evaluation in excess of 50 percent for PTSD and depressive disorder and entitlement to service connection for lymph nodes. In August 2010, the RO issued a statement of the case on the issues. However, the appellant did not file a substantive appeal. The Board notes that on the same day in August 2010, the RO also denied the appellant's claim for entitlement to a TDIU in a rating decision. Thereafter, in an August 2010 letter, the appellant's representative stated that the appellant disagreed with the VA decision dated in August 2010 and specifically noted that the appellant disagreed with the denial of TDIU. Thus, the August 2010 letter cannot be construed as a substantive appeal as to the matter of an increased rating for PTSD and depressive disorder, or for service connection for lymph nodes. The Board notes that a February 2012 supplemental statement of the case included the issues of entitlement to an increased rating for PTSD and depressive disorder, and entitlement to service connection for lymph nodes (claimed as due to Agent Orange). In the February 2012 supplemental statement of the case, the RO granted entitlement to an increased evaluation of 70 percent for chronic PTSD, from December 12, 2011. In a March 2012 cover letter sent with the February 2012 supplemental statement of the case, the appellant was informed that if he had not filed a formal appeal, he need to complete a formal appeal. VA has not received any response from the appellant or his representative. Accordingly, the Board does not have jurisdiction to consider the issues of entitlement to an increased evaluation for PTSD and depressive disorder, or entitlement to service connection for a lymph node disability. In a February 2012 supplemental statement of the case determination, the RO granted entitlement to TDIU effective December 12, 2011. The Court has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). Although the TDIU benefit sought by the appellant was granted, the increase was not granted for the entire rating period on appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Consequently, the issue of entitlement to TDIU prior to December 12, 2011, remains on appeal. The appellant requested a video hearing before a Veterans Law Judge. However, in a May 2012 statement, the appellant withdrew the hearing request. Therefore, the Board may proceed to adjudicate this appeal. The issues of entitlement to service connection for a skin disability, to include dermatophytosis and tinea pedis; entitlement to service connection for memory loss; entitlement to service connection for onychomycosis, claimed as loss of toe nail; and entitlement to a TDIU, prior to December 12, 2011, 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. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a current diagnosis of an eye disability, for VA compensation purposes. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant's hypertension is related to service. CONCLUSIONS OF LAW 1. An eye disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. Hypertension was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) With regard to the appellant's claims for entitlement to service connection for an eye disability and hypertension, VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims. See 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 (2011). Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a letter dated in July 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. Duty to Assist The Board concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. A Social Security Administration decision and records have been associated with the file. As discussed below, it is not clear whether the appellant's complete Social Security Administration records have been associated with the claims file. However, the appellant was granted Social Security Administration disability benefits based on his service-connected PTSD. As the Social Security Administration decision reflects that the Social Security Administration only considered evidence relating to the appellant's mental health disabilities, any outstanding Social Security Administration records are not relevant to his claims for service connection for an eye disability and high blood pressure. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board finds that a medical examination is not necessary in this case. The appellant wears glasses for reading. However, as discussed below, there is no evidence he has an eye disability for VA compensation purposes. The appellant has a diagnosis of hypertension. However, there is no indication that the appellant had any problems or complaints relating to his eyes or hypertension in service. The appellant has not asserted that he had the conditions in service. Additionally, there is no indication that the appellant's hypertension or his need to wear reading glasses is related to an in-service event, injury or disease, as discussed below. Thus, the Board finds that a VA examination is not necessary to satisfy VA's duty to assist. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic disabilities, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. III. Analysis The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Eye Disability The appellant contends that he has an eye disability that is related to service. For the reasons that follow, the Board finds that service connection is not warranted. A February 1969 induction examination report indicates that the appellant's eyes were normal. The appellant's vision was noted to be 20/20. There is no evidence the appellant had complaints or treatment for an eye condition in the appellant's service treatment records. A January 1971 separation examination report reflects that the appellant's eyes were normal. His distant vision was noted to be 20/20. In his July 2007 claim, the appellant stated that he never needed glasses to read before, but he did now. The appellant's VA treatment records reflect that he wears reading glasses. See January 2010, March 2010, and April 2010 VA treatment records. However, there is no indication that the appellant has an eye disability that is related to service. The appellant has asserted that he is entitled to service connection for an eye condition, but he has not indicated why he believes he has an eye condition that is related to service. Significantly, the VA treatment records and the appellant's claim indicate that he wears glasses for reading. This is not evidence of an eye disorder, but rather, at most, an example of refractive error, a condition which is not a disability under VA regulations. 38 C.F.R. §§ 3.303(c), 4.9 (2011). The appellant's VA treatment records do not reflect that he has a current eye disability. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). In this case, other than the appellant's assertions, the record contains no evidence of a diagnosis of an eye disability, at any time during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim). Without a current showing of an eye disability, service connection is not warranted in this matter. The Board concludes that the preponderance of the evidence is against a finding that the appellant has an eye disability related to his military service. As the preponderance of the evidence is against the claim for service connection for an eye disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The appellant's service treatment records do not indicate the appellant had complaints of or a diagnosis of high blood pressure during service. The February 1969 induction examination report indicates the appellant had blood pressure of 110/80. The appellant's separation examination report indicates the appellant had blood pressure of 120/70. For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101. The appellant's VA treatment records reflect that he has hypertension and takes medication for the condition. A September 2007 Agent Orange examination report reflects that the appellant has essential hypertension, diagnosed in 2003. He took Lisinopril and Hydrochlorothiazide for high blood pressure. In a statement submitted with his December 2007 notice of disagreement, the appellant stated that his blood pressure was high because all the time he was in Vietnam, he was scared. Although a lay person may be competent to report the etiology of a disability, hypertension is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Thus, the appellant's assertion that his hypertension is related to service is not probative. There is no evidence of record, other than the appellant's statement, linking his current hypertension to his service. As noted above, the appellant's VA treatment records reflect that he was diagnosed with hypertension in 2003, more than 30 years after his discharge from service. There is no evidence that the appellant had hypertension in service or within one year of service. Consequently, the Board finds that the evidence is against a finding that the appellant's hypertension is related to service. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for hypertension. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for an eye disability is denied. Entitlement to service connection for hypertension is denied. REMAND A September 2007 VA Agent Orange examination report reflects that the appellant reported having chronic fungal infections of both feet since Vietnam. The report also indicates the appellant reported having a chronic skin rash on his feet and occasionally on his hand. The diagnosis was chronic tinea pedis, onychomycosis. The April 2010 VA treatment record reflects that the appellant reported being in Vietnam where he was subjected to days of wet feet. He reported that he had dry and cracked feet in the past that bled. The clinical impression was tinea pedis and onychomycosis. In his December 2007 notice of disagreement, the appellant stated that his feet were wet and dry in the battlefield, and he used cream for his feet every day to keep them from peeling. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant is competent to report that he had a skin condition and/or foot fungus in service and that he has had the conditions since service. The April 2010 VA treatment record indicates that the appellant reported having a history of dry and cracked feet in the past that bled. The September 2007 VA Agent Orange examination report notes that the appellant reported having a chronic fungal infections since service. As the appellant has asserted that he had a skin condition in service and indicated that he has had a skin condition since service, a VA examination is necessary to satisfy VA's duty to assist in regard to the appellant's claims for a skin disability and onychomycosis. In a May 2011 Mental Residual Functional Capacity Questionnaire, a VA psychiatrist and LCSW noted that the appellant had significant impairments in his memory. On a SLUMS examination conducted in April 2011, the appellant scored 21 of 30 points, indicating a mild neurocognitive disorder. They noted that he scored at the dividing line between mild neurocognitive impairment and dementia. The April 2010 Mental Impairment Questionnaire, L.F. stated that the appellant had demonstrated significant limitations with his memory in carrying out his assignments during his in-patient PTSD program. The appellant has claimed that he has memory loss as a result of service. As the appellant's evaluation in relation to his service-connected PTSD indicates he has a mild neurocognitive disorder, the evidence indicates the memory loss may be related to his service-connected PTSD. Thus, a VA examination is necessary to determine whether the appellant has a neurocognitive disorder that is related to service, or his service-connected PTSD. The appellant submitted a May 2011 administrative decision from the Social Security Administration that found him to be totally disabled and eligible for benefits due to PTSD. Although some of the records relied on by the Social Security Administration Administrative Law Judge have been associated with the claims file, the decision references a State agency psychological consultant's mental assessment that does not appear to be associated with the claims file. There may also be other outstanding records relied upon by the Social Security Administration in reaching its decision. As the appellant was granted Social Security Administration disability benefits on the basis of his service-connected PTSD, the records are not relevant to the appellant's other service connection claims. The possibility that Social Security Administration records could contain evidence relevant to the claim on appeal of entitlement to a TDIU, prior to December 12, 2011, cannot be foreclosed absent a review of those records. As such, the records considered by the Social Security Administration in its award of disability benefits must be obtained. 38 C.F.R. § 3.159(c)(2) (2011); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In regard to the appellant's claim for entitlement to an effective date for TDIU prior to December 12, 2011, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term, unemployability, is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word 'substantially' suggests an intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In this case, the appellant is service-connected for posttraumatic stress disorder PTSD with depressive features, evaluated as 50 percent disabling from April 1, 2010. The appellant's PTSD with depressive features is evaluated as 70 percent disabling from December 12, 2011, and the appellant was granted entitlement to a TDIU effective December 12, 2011. The appellant was also service-connected for hemorrhoids, rated as noncompensable. Thus, the appellant did not meet the minimum schedular criteria for PTSD, prior to December 12, 2011. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. The question thus presented by this appeal is whether the appellant, in connection with his TDIU claim, the denial of which forms the basis of the instant appeal, was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, thereby warranting referral to the Director of the VA's Compensation and Pension Service for extraschedular consideration. The appellant's treating VA social worker and psychiatrist consistently opined that the appellant was unemployable due to his PTSD, prior to December 12, 2011. In an April 2010 Mental Impairment Questionnaire a VA Licensed Clinical Social Worker (LCSW), L.F., stated that the appellant would continue to be severely socially and occupationally incapacitated. He noted that the appellant continued to struggle with persistent symptoms of PTSD. The appellant reported mutually reinforcing and interconnected hypervigilance, irritability, anxiety and difficulty concentrating when in public or in other situations he considered stressful, like the workplace. A May 2010 VA examination report reflects that the appellant had mild to moderate symptoms of PTSD with some depressed mood and insomnia and with few friends at the current time. The report reflects that the appellant was not looking for work because he was concerned about his symptoms and if they would interfere in that setting. The VA examiner concluded that the appellant was employable in the setting in which the demands of the task would be routine and simple and in which he would have little contact with the public and loose supervision. A July 2010 VA treatment record reflects that the appellant had not been employed since 2006, at which time he lost a brief job as a bellhop in a hotel because of angry interactions with others. In another July 2010 VA treatment record, L.F. stated that the appellant could neither get nor hold a job because of his PTSD symptoms. In a September 2010 letter addressed to the appellant, a VA psychiatrist and L.F. stated that "in our evaluation based on some eighteen months work with you, PTSD has left you severely socially and occupationally incapacitated. Attempting to work would only make the symptoms worse." A September 2010 VA treatment record reflects L.F. noted that he could not see how the appellant could maintain employment when the appellant was so affected, despite medication and the work the appellant did in the PTSD program. In a May 2011 Mental Residual Functional Capacity Questionnaire, the VA psychiatrist and L.F. noted that the appellant had continued severe social and occupational incapacity. In a May 2011 decision, the Social Security Administration found that the appellant had been disabled from April 1, 2007. The decision indicates the appellant was disabled due to PTSD. A December 2011 VA examiner found that with the appellant's current severity of symptoms of PTSD, he was not employable in any gainful capacity at the current time and the VA examiner deemed him unemployable due to PTSD. The VA examiner opined that, to a reasonable degree of psychological certainty, with the appellant's current severity of symptoms of PTSD, he was not employable in any gainful capacity at the current time. The fact that the appellant's service-connected PTSD was evaluated as 50 percent disabling, prior to December 12, 2011, signifies recognition by VA that there was a corresponding industrial impairment. See 38 C.F.R. § 4.1. Such ratings, however, are not dispositive of the question of whether service-connected disabilities preclude the appellant from securing and following a substantially gainful occupation. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The RO has determined in the first instance that the appellant was not rendered unemployable on the basis of his service-connected disabilities, prior to December 12, 2011. However, the Board finds there is persuasive evidence to the contrary in the numerous opinions from the appellant's treating VA psychiatrist and LCSW that the appellant is unemployable. The Social Security Administration also found that the appellant was unemployable due to his PTSD from April 2007. Although the May 2010 VA examiner found that the appellant was employable, he noted that the appellant would need little contact with the public and loose supervision. All the medical opinions of record are probative. While the Board acknowledges that there is evidence for and against TDIU entitlement, the evidence is at least in relative equipoise that the appellant's service-connected disabilities render him unemployable. Giving the appellant the benefit of the doubt, the Board finds that the claim should be referred to the Director the Compensation and Pension Service for consideration of the assignment of an extraschedular TDIU. The appellant's disability picture meets the requirements for referral to the Director of the VA's Compensation and Pension Service for extraschedular consideration of TDIU entitlement. That referral has not yet been made and remand is required to effectuate that action. Finally, the Board notes that Virtual VA contains VA treatment records from CAPRI belonging to another veteran. On remand, this error should be corrected. Accordingly, the case is REMANDED for the following action: 1. Remove the VA treatment records belonging to another veteran from the appellant's Virtual VA folder and move them to the appropriate Virtual VA folder. 2. Contact the Social Security Administration and request a copy of all records considered in conjunction with its May 2011 award of Social Security Administration disability benefits to the appellant and any subsequent disability determinations. 3. After completion of steps 1 and 2, schedule the appellant for a VA examination to determine whether the appellant has a skin disability that is related to service, to include dermatophytosis, tinea pedis and/or onychomycosis. The examiner is requested to opine as to whether it is "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood), that the appellant has a skin disability that is related to service, to include dermatophytosis, tinea pedis and/or onychomycosis. 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. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. The VA clinician is requested to provide a thorough rationale for the opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. 4. After completion of steps 1 and 2, schedule the appellant for a VA examination with a relevant examiner to determine whether the appellant has a disability manifested by memory loss, to include a neurocognitive disorder. If the VA examiner determines that the appellant has a disability manifested by memory loss, to include a neurocognitive disorder, the examiner should provide opinions as to: * Whether it is at least as likely as not that the disability manifested by memory loss, to include a neurocognitive disorder, is related to service. * Whether it is at least as likely as not that the disability manifested by memory loss, to include a neurocognitive disorder, was caused or aggravated by his service-connected PTSD and depressive disorder. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). 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. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 5. After completion of the above, refer the issue of entitlement to a TDIU, prior to December 12, 2011, to the Under Secretary for Benefits, or the Director of Compensation and Pension Service, for consideration of assignment of an extraschedular TDIU prior to December 12, 2011, under the provisions of 38 C.F.R. § 4.16(b). 6. Thereafter, readjudicate the issues on appeal of entitlement to service connection for a skin disability, to include dermatophytosis and tinea pedis, entitlement to service connection for memory loss, entitlement to service connection for onychomycosis, claimed as loss of toe nail, and entitlement to a TDIU prior to December 12, 2011. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claims, to include denial. See 38 C.F.R. § 3.655 (2011). 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs