Citation Nr: 1300751 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-06 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for herpes simplex. 2. Entitlement to service connection for herpes simplex. 3. Entitlement to a compensable evaluation for residual scar, status post excision of a pilonidal cyst. 4. Entitlement to an evaluation in excess of 10 percent for bilateral plantar fasciitis with synovitis and keratotic lesions (bilateral foot disability). ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1975 to July 1992 and from April 2009 to June 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). In that rating decision, the RO reopened the previously denied claim for herpes simplex, but confirmed and continued the denial of the underlying claim. The RO also denied the increased rating claims for residual scar and bilateral foot disability. As noted, the August 2005 rating decision reopened the Veteran's claim. Regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Wakeford v. Brown, 8 Vet. App. 237(1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). Thus, the issue on appeal has been characterized as shown above. The reopened claim for herpes simplex and the increased rating claim for bilateral foot disability 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 May 2004 rating declined to reopen a previously denied claim for entitlement to service connection for herpes simplex because no new and material evidence had been submitted that showed evidence of current diagnosis of herpes that was incurred in or caused by military service. 2. Evidence received since the May 2004 rating decision raises a reasonable possibility of substantiating the Veteran's herpes simplex claim. 3. Throughout the entire period under appeal, the Veteran's disability due to residual scar has been manifested by a stable scar, measuring 2.5 inches by .25 inch that is tender upon examination. CONCLUSIONS OF LAW 1. The May 2004 rating decision that declined to reopen the claim for entitlement to service connection for herpes simplex is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. Evidence received since the May 2004 rating decision in relation to the Veteran's claim for entitlement to service connection for herpes simplex is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for an evaluation of 10 percent, and not higher, for residual scar have been met for the entire period under appeal. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2008) and (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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 claim. The Veteran 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 Veteran). 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VA must also specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claim. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. The claim on the merits requires additional development, which is addressed in the remand below. With regard to the increase rating claim for residual scar, VA sent letters to the Veteran in December 2004, November 2005, and June 2009 that addressed the notice elements concerning his increased rating claim. The letters informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. In the June 2009 letter, VA has also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the June 2009 notice was sent after the initial adjudication, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in that letter fully complied with the requirements of 38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b), Dingess, supra, and after the additional notice was provided, the case has been readjudicated and most recently in an October 2012 supplemental statement of the case (SSOC) that was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. The Veteran was afforded VA examinations in January 2005, November 2005, and November 2008. In the examination reports, each VA examiner fully identified and evaluated the severity of the Veteran's symptomatology due to his residual scar. The examinations are accordingly fully adequate for rating purposes. Moreover, the Veteran has not asserted, and there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. 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 further assisted the Veteran and her representative throughout the course of this appeal by providing them with a SOC and a SSOC, which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 2. Petition to Reopen The Veteran seeks entitlement to service connection for herpes simplex. He asserts that he incurred herpes simplex during his period of service. Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As noted above, a May 2004 rating decision declined to reopen the previously denied claim for service connection for herpes simplex. The rating decision concluded that no new and material evidence had been received that demonstrated a current diagnosis of herpes that was incurred in or caused by military service. The Veteran did not appeal the denial by submitting a timely notice of disagreement or other indication of disagreement with the rating decision within one year. The denial of his claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103. The Board acknowledges that pursuant to VA regulations, that if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim without regard to prior decisions on the claim. 38 C.F.R. § 3.156(c). Here, although the Veteran's second period of active duty followed the last final rating decision, any service records from that period would not have existed at the time of the final May 2004 rating decision. As such, the Board must consider whether new and material evidence has been received for his service connection prior to consideration on the merits of the underlying claims. See 38 C.F.R. § 3.156(c). In this regard, the Board may only consider on the underlying merits if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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. The Court has recently stated that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513(1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Here, the RO originally denied the Veteran's service-connection claim for herpes simplex in a March 2002 rating decision in essence because the medical evidence failed to demonstrate a current diagnosis of herpes that was incurred in or related to military service. The Veteran did not appeal, and that rating decision became final. The Veteran sought to reopen his previously denied claim in February 2004, but the RO declined to reopen the claim because no new and material evidence had been received. Because the Veteran did not perfect appeals as to these RO determinations, they became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. The evidence of record at the time of the May 2004 rating decision consisted of the Veteran's service treatment records from his first period of service (September 1975 to July 1992), VA medical records as well as the Veteran's lay contentions. The Veteran's service treatment records include complaints, treatment, and diagnosis various skin problems in service, but none of the records reflect a diagnosis of or treatment for herpes simplex. The VA medical records prior to the May 2004 rating decision also do not reflect treatment or diagnosis of herpes simplex. The record also contained the Veteran's contention that he incurred herpes simplex based on the premise of being infected by a doctor who performed the surgical excision of a pilonidal cyst. In May 2004, the RO denied the Veteran's request to reopen his service-connection claim based on a finding that the Veteran did not submit new and material evidence. Specifically, the RO determined that the Veteran failed to submit evidence demonstrating a diagnosis of herpes simplex that was not incurred in or related to military. See the RO's May 2004 rating decision, page 3. The Veteran submitted an application to reopen his claim of service connection for tinnitus in January 2005. Crucially, the evidence received since the May 2004 rating decision consists of subsequent VA treatment records that reflect a possible diagnosis of recurrent herpes. See VA treatment notes dated in December 2006. The Board finds that this medical evidence constitutes new and material evidence as to the previously denied issue on appeal, as such evidence was not of record prior to the last final denial of the Veteran's claim in May 2004, and relates to unestablished facts pertaining to a current diagnosis of herpes. Accordingly, there is sufficient new and material evidence to reopen the Veteran's claim of entitlement to service connection for herpes simplex. See 38 C.F.R. § 3.156. The Board notes in passing that although there may be of record new and material evidence sufficient to reopen the Veteran's herpes simplex claim, this does not mean that the claim must be allowed based on such evidence. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. For reasons which will be expressed below, the Board finds that additional development is required before the Veteran's claim for service connection for a back disability may be adjudicated on the merits. 3. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). The Veteran's scars are rated under 38 C.F.R. § 4.118, schedule of ratings for disorders of the skin, under Diagnostic Codes 7801-7805. The criteria for rating scars were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805). The amendment applies to all applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708- 54710 (Sept. 23, 2008); see also 38 C.F.R. § 4.118. The Veteran's claim for benefits was filed prior to October 23, 2008. Thus, the Board need not consider the revised criteria. However, the introductory paragraph to 38 C.F.R. § 4.118 notes that a Veteran who VA rated under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 before October 23, 2008 can request review under Diagnostic Codes 7800, 7801, 7802, 7804, and 7805, irrespective of whether the Veteran's disability has increased since the last review. VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Codes 7800, 7801, 7802, 7804, and 7805. A request for review pursuant to this rulemaking will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. The Board will consider both the new and revised criteria, construing the claim for increase very broadly, to include a request for review pursuant to the change to the rating criteria. Under the rating criteria in effect prior to October 28, 2008, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Such scars in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Diagnostic Code 7802 provides that superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. A superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Codes7803-7805 (2008). When this old rating criteria are applied to the above evidence, the Veteran's residual scar warrants an increased disability rating of 10 percent as it more closely approximates a superficial scar that is painful on examination. See 38 C.F.R. § 4.118, Diagnostic Codes7804 (2008). Here, the Veteran has undergone three VA examinations dated in January 2005, November 2005, and November 2008 during the period under appeal. These examination reports show that the Veteran has a single residual scar that measures 2.5 inches by .25 inches. In each VA examination report, the examiners consistently noted that the Veteran's residual scar was stable and tender upon examination. The Veteran complained of pain around the residual scar with prolonged sitting or lying down. This symptomatology associated with the Veteran's residual scar, when reviewed under the old rating criteria, more closely approximates the criteria for a 10 percent rating, and not higher, for a superficial scar that is painful on examination. See 38 C.F.R. § 4.118, Diagnostic Codes7804 (2008). The residual scar does not warrant a higher disability rating in excess of 10 percent under the old rating criteria. The residual scar does not cover an area exceeding 12 square inches or cause any limitation of function. See 38 C.F.R. § 4.118, Diagnostic Codes7801-7805 (2008). The Board has also considered the Veteran's residual scar under the rating criteria which took effect on October 23, 2008. In order for the Veteran to receive an evaluation in excess of 10 percent under the revised criteria, the evidence must demonstrate that his residual scar exceeds an area of 12 square inches, or is manifested by multiple scars, or a scar that is both painful and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7801-7804 (2012). The revised Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7801-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic 7805 (2012). After careful consideration, the Board concludes that a rating in excess of 10 percent is not available for the Veteran's residual scar under the revised rating criteria. Rating criteria based on the total area of scarring are essentially unchanged and therefore do not afford a higher evaluation for the claimed scar as it does not exceed an area of 12 square inches. See 38 C.F.R. § 4.118, Diagnostic 7801. A higher separate rating would only be available under Diagnostic Code 7804, if the Veteran's residual scars disability involved more than one scar, or at least one scar that is considered both painful and unstable. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2) (2011). Again, the evidence of record clearly demonstrates that the Veteran's residual scar disability is only manifested by one scar. Furthermore, at no point during the period under appeal has the residual scar been evaluated as unstable. Rather, each VA examiner concluded that the residual scar was stable. The Board has also considered whether higher evaluation would be available for based on any other disabling effect(s) under Diagnostic Code 7805. See 38 C.F.R. § 4.118 (2012). Here, there is no evidence that the Veteran's residual scar disability causes any associated limitation of motion In summary, a disability rating higher of 10 percent, and not higher, is available for the Veteran's residual scar, under the previous schedular criteria. The revised criteria do not demonstrate that an evaluation in excess of 10 percent is warranted for the Veteran's residual scar. Accordingly, an evaluation of 10 percent, and not higher, is warranted. Extraschedular Considerations The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the disability at issue is inadequate. A comparison between the level of severity and symptomatology of the Veteran's residual scar with the established criteria shows that the rating criteria reasonably describe the disability levels and symptomatology attributable to the Veteran's service-connected residual scar. In reaching this conclusion, the Board considered that the Veteran's discomfort with prolonged sitting or lying down due to his residual scar is a factor contemplated in the regulations and rating criteria as defined. The simple fact that the Veteran's residual scar does not satisfy the criteria for an evaluation in excess of 10 percent under these criteria does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Lastly, the Court has held that a request for a total disability rating due to individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not asserted, nor does the evidence show, that he is unemployed due to his residual scar. There is no indication in the record that the Veteran's residual scar affect his normal activities of daily living. As the issue of entitlement to a TDIU has not been raised as part of the increased rating claim for the residual scar, it is inapplicable in this case. ORDER New and material evidence having been received, the claim for entitlement to service connection for tinnitus is reopened; the appeal is granted to this extent only. Entitlement to an evaluation of 10 percent, and not higher, for disability due to residual scar, is granted. REMAND The Board regrets having to remand the remaining issues of the Veteran's appeal. However, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. Herpes Simplex VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. See Id. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2011); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran asserts that he has herpes simplex that was incurred during his first period of service, and he has continued to suffer from recurrent outbreaks of herpes since then. The Veteran reports that he sought treatment for episodes of severe itching and blistering on his back, around his rectum, and in his groin area. He was told that his symptoms were only manifestations of a rash. He subsequently came under the impression that the "rashes" that he has experienced since service were actually manifestations of herpes simplex. See statements in support of the case dated in January 2005 and September 2005. The Board acknowledges the Veteran's assertion that he acquired herpes simplex based on the premise of being infected by a doctor who performed the surgical excision of a pilonidal cyst. While the Veteran may wholeheartedly believe that he incurred herpes simplex as a result of the negligence of the surgeon in 1986, there is no medical evidence to suggest or verify that the surgeon had herpes simplex and he infected the Veteran during that surgical procedure. Nevertheless, the Board cannot ignore the fact that a review of the Veteran's service treatment records shows that he sought treatment for complaints of skin problems, which the Board finds similar to his complaints reflected in the subsequent VA treatment records and associated with a possible diagnosis of herpes. A November 1975 treatment record shows that the Veteran presented with complaints of boils on areas of his legs for the past four weeks. Three abscess formations were observed on clinical examination. He was assessed with "Abscesses STAPH." Also, a September 1977 treatment note shows the Veteran presented with complaints of "painful bumps in groin [times] 2 weeks" and drainage. He was assessed with sebaceous cyst - boil and advised to take sitz baths. Notably, these service treatment records are dated well before the date of the 1986 surgical excision of the pilonidal cyst and the alleged infection. Post-service treatment continues to show that the Veteran complained of skin problems manifested by rash, severe itching, and blistering in the areas of his groin and rectum. A March 2004 VA medical record shows the Veteran complained of a recurrent anal rash since service. A December 2006 VA treatment record reflects a possible diagnosis of recurrent herpes based on the Veteran's description of his symptoms as a "cluster of pustules" in the left groin area and clinical findings of post-inflammatory hypopigmentation. Moreover, the Veteran is competent to report of continuity of his symptoms. Where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). There is no VA examination of record with respect to the Veteran's claimed disorder. Since there is evidence of in-service treatment for skin problems as well as the lay evidence of a continuity of symptoms since active service, the Board finds that a medical examination is needed prior to adjudication of the claims on appeal. See 38 C.F.R. § 3.159(c)(4) (2011); McLendon, 20 Vet. App. at 83-86. On remand, the RO should schedule the Veteran for appropriate VA examination including an opinion to address the questions regarding the nature, onset and etiology of his claimed herpes simplex. Bilateral Foot Disability The Veteran's bilateral foot disability, identified as plantar fasciitis with synovitis and keratotic lesions, was last evaluated by VA in a July 2009 VA foot examination. Since that time, the Veteran was re-activated with his Reserve and his additional service treatment records suggest that his bilateral foot disability has worsened since that last VA examination. Additional service treatment records from this subsequent period of active duty show that the Veteran continued to seek medical treatment for bilateral foot problems. A March 2010 podiatry clinic note shows that he Veteran was treated for calluses, bunions, and over ten benign hyperkeratotic lesions on each foot. A February 2011 service treatment note shows that the Veteran underwent a debridement and he was provided with orthotics to alleviate increased bone pain in his foot and increased soft tissue pain in his toes. He complained of difficulty with running because of his bilateral foot problems. X-ray filmed revealed evidence of calcaneal enthesophytes. He was diagnosed with calluses, hallux limitus, bone spurs, and foot joint instability. Some of these symptoms were not noted in the previous July 2009 VA examination report and suggest a worsening of the Veteran's disability. The Court has held that a Veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, given the medical evidence that suggests that the Veteran's bilateral foot disability has worsened, the Board finds it necessary to remand this claim for a new VA examination in order to assess the current severity of the Veteran's right eye disability. Prior to any examination, with the Veteran's assistance, the RO/AM should obtain any outstanding records of pertinent private and VA treatment. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any additional pertinent medical treatment he has received. The RO should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include updated VA treatment records. 2. Schedule the Veteran for an examination, with the appropriate specialist, in order to obtain a medical opinion as to the nature and etiology of his claimed herpes simplex. The claims folder, including a copy of this REMAND, must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. Based on a review the Veteran's VA claims folder and after a thorough examination, the examiner should provide answers to the following questions: a). Identify with specificity any current skin disorder associated with Veteran's description of recurrent rash on his groin and rectum areas. b). For each current skin disorder identified, is it at least as likely as not (50 percent or greater probability) that the disorder had its onset in service or is otherwise related to service (taking into account both skin complaints noted in service and the Veteran's description of the history of his symptoms). d). For each current skin disorder that is not related to the Veteran's first period of service (1975 to 1992), but existed prior to his re-activation in April 2009, did such diagnosed disorder permanently worsening during the Veteran's period of service from April 2009 to June 2012? The VA examiner should consider and discuss the Veteran's subjective history as well as the pertinent medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. 3. Schedule the Veteran for a VA examination to determine the severity of the service-connected bilateral foot disability. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history, the pertinent details of which should be included in the examination report. Following examination of the Veteran and review of the claims file, the examiner should identify all currently present manifestations of bilateral foot disability. The examiner should specifically indicate whether associated foot disability is moderate, moderately severe, or severe. The examiner should identify any objective evidence of pain and assess the extent of any pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability should be assessed in terms of additional degrees of limitation of motion. Stated differently, the examiner should indicate the point at which pain or any other factor limits motion. A discussion of the complete rationale for all opinions expressed should be included in the examination report. 4. After undertaking any other development it deems necessary, the RO should review all the evidence of record and readjudicate the Veteran's claims. If the claims are denied, in whole or in part, the RO should provide the Veteran and his attorney with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs