Citation Nr: 1301632 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 01-06 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, to include meralgia parasthetica of the right leg, including as due to herbicide exposure and/or as secondary to service- connected PTSD (PTSD). 2. Entitlement to service connection for a skin disease manifested by a rash of the groin and legs, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for dementia, to include as secondary to service-connected PTSD. 4. Entitlement to service connection for a disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias), to include as secondary to service- connected PTSD. 5. Entitlement to service connection for a respiratory disorder, to include as secondary to service-connected PTSD. 6. Entitlement to service connection for osteoarthritis or arthralgias of multiple joints, to include as secondary to service-connected PTSD. 7. Entitlement to service connection for alcohol addiction, to include as secondary to service-connected PTSD. 8. Entitlement to a compensable initial disability rating for gastroesophageal reflux disease (GERD). 9. Entitlement to an effective date prior to March 31, 2011, for the grant of service connection for diabetes mellitus associated with herbicide exposure. 10. Entitlement to an effective date prior to May 18, 2004, for the grant of service connection for GERD. 11. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Darla Lilley, Attorney at Law ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active military service from July 1964 to July 1967 and from April 1969 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of August 2005, June 2008, and February 2012 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). All of the service connection claims currently on appeal and listed on the title page were previously before the Board, most recently in October 2010 when these issues were remanded for additional development. The October 2010 Board remand discusses in detail the lengthy procedural history of these claims, including with regard to the fact that all of the service connection issues except for the alcohol addiction issue were previously denied by an August 2009 Board decision and appealed to the United States Court of Appeals for Veterans Claims (Court). In pertinent summary, while the case was pending before the Court, the Office of General Counsel for VA (on behalf of VA) and the Veteran (by and through his attorney) filed a Joint Motion for Remand (Joint Motion), dated in July 2010. The parties requested that the Court partially vacate and remand for readjudication the August 2009 decision of the Board. In an Order, dated in July 2010, the Court granted the Joint Motion and vacated the part of the Board's August 2009 decision concerning the service connection issues listed above (not including the alcohol addiction issue, which was not addressed in the August 2009 decision and arose from a separate procedural history, also detailed in the October 2010 Board remand) and remanded the case pursuant to 38 U.S.C. § 7252(a), for compliance with the directives stipulated in the Joint Motion. Copies of the Court's Order and the Joint Motion have been placed in the claims file. When this case was previously before the Board in October 2010, it included an issue of entitlement to service connection for an upper gastrointestinal disorder, including GERD. However, this claim on appeal was granted by a February 2012 RO rating decision; thus, the issue is no longer on appeal at this time. There are four new issues on appeal that are before the Board for the first time: entitlement to a compensable initial disability rating for GERD; entitlement to an effective date prior to March 31, 2011, for the grant of service connection for diabetes mellitus; entitlement to an effective date prior to May 18, 2004, for the grant of service connection for GERD; and entitlement to a TDIU. These matters come before the Board on appeal from a February 2012 rating decision by a VARO. A notice of disagreement was received in April 2012. A statement of the case was issued in August 2012, and a substantive appeal was received in August 2012. The Board notes that the Veteran also initiated an appeal seeking an increased initial disability rating for diabetes mellitus. However, the Veteran expressly withdrew that issue from the appeal in an April 2012 written statement from his attorney representative. Thus, that issue is not on appeal before the Board at this time. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The Board notes that a recent August 2012 RO rating decision denied claims of entitlement to service connection for skin cancer, left knee disability, right knee disability, and diminished eyesight. The Veteran's Virtual VA claims file contains documentation of a September 2012 letter from the RO to the Veteran acknowledging that he has filed a written notice of disagreement with this specific August 2012 RO rating decision. However, the actual referenced notice of disagreement is not currently available for review in either the physical or "Virtual VA" claims file. The September 2012 RO letter merely acknowledges that a notice of disagreement was filed; the letter does not specify the issues included in the Veteran's disagreement. Under these circumstances, in which the Board has no basis for specifying which of those issues have been appealed and which may not have been, the Board cannot remand any of the issues for issuance of a statement of the case; a remand for issuance of a statement of the case would otherwise be the appropriate action. Manlincon v. West, 12 Vet. App. 238 (1999). The matter of taking appropriate action in response to the Veteran's recent notice of disagreement, referenced in a September 2012 RO letter but not otherwise available for review in the claims file, is hereby referred to the RO for appropriate action. All of the service connection issues, the increased rating issue, and the TDIU issue are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran was first diagnosed with diabetes mellitus in 2011, and the first communication from the Veteran to VA evidencing intent to file a claim of service connection for diabetes mellitus was received on March 31, 2011, more than a year after his separation from active duty. 2. The first communication from the Veteran to VA evidencing intent to file a claim of service connection for GERD was received on May 18, 2004, more than a year after his separation from active duty. CONCLUSIONS OF LAW 1. An effective date earlier than March 31, 2011, is not warranted for the award of service connection for diabetes mellitus. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 3.816 (2012). 2. An effective date earlier than May 18, 2004, is not warranted for the award of service connection for GERD. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in April 2005 (concerning GERD) and September 2011 (concerning diabetes mellitus). Together, the letters complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. These notice letters were provided prior to the February 2012 initial adjudication of the issues in question. Since the issues in this case addressed with a final decision at this time (entitlement to assignment of earlier effective dates) are downstream issues from claims of service connection (for which a VCAA letters were duly sent in April 2005 and September 2011), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations with regard to the issues addressed in the following decision. The record as it stands includes sufficient competent evidence. All available pertinent records including in-service records, VA reports, and post-service private medical records have been obtained. The Veteran has been afforded VA examinations to evaluate his pertinent service-connected disabilities addressed in this appeal. An August 2011 VA examination report and an April 2012 VA examination report of record address the Veteran's service-connected GERD and diabetes mellitus; however, the issues decided on appeal related to these disabilities are limited to consideration of the proper assignment of effective dates under the applicable law, and this Board decision does not analyze the nature or severity of these disabilities at this time. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant as relevant to this appeal. No further action is necessary to assist the claimant with the issues addressed in this decision. Effective Dates Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The exception to this is that as for claims for disability compensation based on direct service connection, the effective date to be assigned is the day following separation from active service or the date entitlement arose, if a claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated. 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's DD-214 shows that he separated from his most recent period of service under honorable conditions in January 1977. The Board preliminarily notes that there is no documentation and no suggestion that the Veteran submitted a claim of entitlement to service connection for diabetes mellitus or for GERD at any point within one year of the January 1977 separation, nor otherwise at any earlier date. Entitlement to an effective date prior to March 31, 2011, for the grant of service connection for diabetes mellitus associated with herbicide exposure The Veteran's formal claim of service connection for diabetes mellitus was received by the RO on March 31, 2011. (The Board observes that the signature date on the document is March 31, 2011, and the RO has determined in the rating decision and statement of the case addressing this matter that the claim was received on that date.) The claim did not indicate that the Veteran had filed a previous claim of entitlement to this particular benefit; rather, the March 2011 claim announced to VA that the Veteran has been diagnosed with diabetes mellitus and requested consideration of entitlement to service connection for the disease. The Veteran, in advancing this appeal, has not identified any item as allegedly raising a formal or informal claim of entitlement to service connection for diabetes mellitus prior to March 31, 2011; nor has the Veteran otherwise articulated any theory of entitlement to an earlier effective date for the grant of service connection for diabetes mellitus. The claims file does not contain any communication from the Veteran that may be reasonably construed as a formal or informal claim of entitlement to service connection for diabetes mellitus received by VA prior to March 31, 2011. See 38 C.F.R. §§ 3.151, 3.155. Following the February 2012 RO rating decision granting service connection for diabetes mellitus, the Veteran's March 2012 notice of disagreement expressed a desire to appeal for an earlier effective date but did not discuss any specifically identifiable explanation of a basis for assignment of an earlier effective date. No other correspondence of record, including the August 2012 substantive appeal filing, provides such an explanation. The Board has further considered the fact that the Veteran was granted service connection for diabetes mellitus on the basis of exposure to herbicides during his military service. If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the Veteran met all the criteria of the liberalizing law or issue at that time. 38 C.F.R. § 3.114(a)(3). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). A Nehmer class member is identified as a Vietnam Veteran who has a covered herbicide-related disease. 38 C.F.R. § 3.816(b)(1)(i). The term "covered herbicide diseases" includes diabetes mellitus. 38 C.F.R. § 3.816(b)(2)(i). The regulation applies to claims for disability compensation that were either pending before VA on May 3, 1989, or were received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816(c). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease. The regulation applies to a claim for compensation where either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date entitlement arose. 38 C.F.R. § 3.816(c)(1), (c)(2). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816(c)(4). Diabetes mellitus was added to the list of diseases subject to service connection on a presumptive basis, effective July 9, 2001. See 66 Fed. Reg. 23,166 (May 8, 2001). The United States Court of Appeals for the Federal Circuit (Federal Circuit) later held that the effective date of the regulation should be May 8, 2001, pursuant to 38 U.S.C.A. § 1116(c)(2). See Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002). In this case, the Veteran's earliest claim of service connection for diabetes mellitus was received by the RO on March 31, 2011. There has been no specific contention to the contrary. The medical evidence of record shows that the Veteran was first diagnosed with diabetes mellitus in 2011, and the Veteran confirmed this with his own report to a VA examiner as documented in the April 2012 VA examination report concerning his diabetes. The evidence does not show, and the Veteran does not suggest, that he had been diagnosed with diabetes prior to the May 8, 2001 legislation which added diabetes mellitus to the list of diseases subject to service connection on a presumptive basis. The Veteran was not denied compensation for diabetes mellitus between September 25, 1985, and May 3, 1989; the Veteran's claim for service connection was not pending before VA on May 3, 1989; nor was it received by VA between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for diabetes mellitus (May 8, 2001); and the Veteran's claim was not received within one year from the date of his separation from service. When none of the requirements of 38 C.F.R. § 3.816 are met, which is the case here, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). The Board has already determined that an earlier effective date is not warranted under 38 C.F.R. § 3.400. Thus, the only remaining avenue for an earlier effective date in this case is through 38 C.F.R. § 3.114. Under this regulation, if a claim is reviewed at the claimant's request more than one year after the effective date of a liberalizing change in the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law. 38 C.F.R. § 3.114(a)(3). Diabetes mellitus was added to the list of presumptive diseases in connection with herbicide exposure on May 8, 2001. Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002). As noted above, the Veteran's claim for service connection was received on March 31, 2011, more than one year after VA added diabetes mellitus to the list of presumptive diseases on May 8, 2001. Therefore, in order to obtain an earlier effective date for the award of service connection under 38 C.F.R. § 3.114, the record must establish that the Veteran's diabetes mellitus met the criteria for an award of service connection for diabetes mellitus on May 8, 2001, the effective date of the liberalizing law. As discussed above, the record establishes that the Veteran's diabetes mellitus was diagnosed in 2011. There is no medical or lay evidence demonstrating the presence of diabetes prior to January 2011. Therefore, the Veteran clearly did not meet the criteria for an award of service connection on May 8, 2001, and an earlier effective date is not warranted under 38 C.F.R. § 3.114. Accordingly, the Board finds that the earliest possible effective date for the award of service connection for diabetes mellitus is March 31, 2011, and that the claim for an earlier effective date prior to March 31, 2011, must be denied. In the absence of a formal or informal claim for entitlement to service connection for diabetes mellitus having been filed with VA prior to March 31, 2011, the Veteran is not entitled to an effective date earlier than that date. Therefore, the benefit of the doubt doctrine does not apply, and the claim must be denied. Entitlement to an effective date prior to May 18, 2004, for the grant of service connection for GERD The Veteran's formal claim of service connection for GERD (claimed at that time as "gastrointestinal disorder") was received by the RO on May 18, 2004. The claim did not indicate that the Veteran had filed a previous claim of entitlement to this particular benefit; rather, the May 2004 claim expressly sought to "amend" a previously different claim to additionally include issues including the gastrointestinal disorder claim that eventually led to a grant of service connection for GERD. The Veteran, in advancing this appeal, has not identified any item as allegedly raising a formal or informal claim of entitlement to service connection for GERD prior to May 18, 2004; nor has the Veteran otherwise articulated any theory of entitlement to an earlier effective date for the grant of service connection for GERD. The claims file does not contain any communication from the Veteran that may be reasonably construed as a formal or informal claim of entitlement to service connection for GERD received by VA prior to May 18, 2004. See 38 C.F.R. §§ 3.151, 3.155. Following the February 2012 RO rating decision granting service connection for GERD, the Veteran's March 2012 notice of disagreement expressed a desire to appeal for an earlier effective date but did not discuss any specifically identifiable explanation of a basis for assignment of an earlier effective date. No other correspondence of record, including the August 2012 substantive appeal filing, provides such an explanation. In the absence of a formal or informal claim for entitlement to service connection for GERD having been filed with VA prior to May 18, 2004, the Veteran is not entitled to an effective date earlier than that date. Therefore, the benefit of the doubt doctrine does not apply, and the claim must be denied. ORDER An effective date earlier than March 31, 2011, for the grant of service connection for diabetes mellitus is not warranted. An effective date earlier than May 18, 2004, for the grant of service connection for GERD is not warranted. To these extents, the appeal is denied. REMAND The Board finds that a number of the issues on appeal must be remanded for additional development at this time. With regard to the issue of entitlement to service connection for peripheral neuropathy, the Board finds that the VA examination reports of record addressing this issue are inadequate to support appellate review. The Board's October 2010 remand specifically directed that a VA examination must yield an opinion addressing whether it is "at least as likely as not (50 percent or greater degree of probability) that the Veteran's currently diagnosed peripheral neuropathy, to include meralgia parasthetica of the right leg, is causally linked to his exposure to herbicides in Vietnam." Neither the August 2011 VA examination report addressing this issue, nor the April 2012 VA examiner's comment upon this issue, addresses this essential question. The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board further notes that the August 2011 VA examination report indicates that the etiology of the Veteran's peripheral neuropathy is "unknown," further accentuating the need for a discussion that clearly contemplates the Veteran's contention that his peripheral neuropathy is due to exposure to herbicides in Vietnam. The Veteran has expressly contended that his peripheral neuropathy may have been caused by exposure to herbicides during service (including in written correspondence dated in August and September 2006), and a VA examination with medical opinion addressing the pertinent etiological question is necessary. Additionally, the recent grant of service connection for the Veteran's diabetes mellitus has raised the question of whether the Veteran's claimed peripheral neuropathy may warrant service connection as secondary to diabetes mellitus. The April 2012 VA examiner's opinion merely states that the Veteran's peripheral neuropathy "preceded diabetes so it is less likely as not related to military." The Board finds that this opinion does not adequately address the essential question of whether the Veteran's peripheral neuropathy may have been permanently aggravated in severity by the diabetes mellitus; neither the scope of the rationale nor the language of the opinion (addressing only whether the diseases were "related") provides a basis for the Board to make an informed determination as to whether the peripheral neuropathy has been aggravated by diabetes mellitus. The Board finds this VA medical opinion to be inadequate in that it only addresses the causation aspect of secondary service connection, and does not address the aggravation aspect, with respect to the claim. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. Allen v. Brown, 7 Vet. App. 439, 449 (1995). Finally, the Board observes that the Veteran's July 2008 written statement expresses that he believes his peripheral neuropathy may be caused by his intake of chemicals and drugs in connection with his PTSD, which may be interpreted as partly referencing his alcohol addiction. As this issue and the alcohol addiction issue must both be remanded for new VA examinations for other reasons, any manner in which these issues may be inextricably intertwined will be appropriately handled as both issues will be adjudicated together. With regard to the issue of entitlement to service connection for a skin disease manifested by a rash of the groin and legs, the Board notes that the Veteran has recently filed a new claim seeking service connection specifically for skin cancer. The Veteran was afforded a VA examination in April 2012 which addressed the etiology of the Veteran's skin cancer to include the question of whether the skin cancer is etiologically related to herbicide exposure during service. The Board finds that the Veteran's contentions concerning skin disease being allegedly caused by exposure to herbicides during service have not been limited to only the issue of skin cancer. Many of the Veteran's statements, including in a March 2005 written statement, appear to assert that his skin disease manifested by a rash on the groin and legs is etiologically linked to his exposure to herbicides during military service. The Board notes that the evidence of record clearly distinguishes the Veteran's skin cancer from the claimed skin disease manifested by a rash. No VA examination report to date presents a medical opinion addressing the Veteran's contention that his skin disease manifested by a rash is due to his exposure to herbicides during service. The Board notes that the absence of a skin disease presumptively linked to herbicide exposure does not eliminate the requirement that the Board consider the Veteran's contention that his claimed skin disease was actually caused by herbicide exposure on a direct basis. The United States Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nonetheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board notes that the October 2010 Board remand (by a different Veterans Law Judge) sought a VA examination report addressing the Veteran's diagnosed skin disabilities in order to ensure compliance with the July 2010 Joint Motion for Remand and July 2010 Court Order. The resulting August 2011 VA examination report does not address the Veteran's contention that the skin disease manifested by rash may be due to herbicide exposure. At this time, the Board finds that informed appellate review cannot proceed without a VA examination report with a medical opinion addressing this essential contention of the Veteran's. The Board finds that the recent grant of service connection for diabetes mellitus has raised the question of whether the Veteran's claimed skin disease manifested by rash may warrant service connection as secondary to diabetes mellitus. An April 2012 VA examination report concerning diabetes mellitus broadly indicates that no disabilities have been caused or aggravated by the Veteran's diabetes, although without any discussion or rationale addressing the matter. As this issue must be remanded for other reasons, the Board finds it reasonable to direct that a VA examination specifically address the question (including with a discussion of rationale) of whether any skin disability manifested by rash has been caused by or aggravated by the recently service-connected diabetes mellitus. With regard to the issue of entitlement to service connection for dementia, the Board's October 2010 remand directed that a VA examination report address whether it is "at least as likely as not (50 percent or higher degree of probability) that the Veteran has dementia that was caused or aggravated by his service- connected PTSD?" The March 2011 VA examination report responding to this question states that the examining psychologist was "unable to diagnose dementia without resorting to speculation," and did not otherwise discuss the question of the etiology of the Veteran's claimed dementia. The examiner explained that the Veteran "has not had a medical assessment nor a neurospsychological [sic] assessment for this disorder." The examiner concludes that it is unlikely that the Veteran has dementia because, the examiner cites, the Veteran denied having any memory problems. However, this premise (that the Veteran denies having symptoms of dementia) is fundamentally inconsistent with the fact that the Veteran has advanced an appeal asserting that he suffers from dementia that should be recognized as service connected; the Veteran has made no suggestion of withdrawing this appeal. Moreover, the examiner's statement clearly expresses that information from appropriate specialized testing is necessary in order to appropriately address the question of whether the Veteran has dementia. As the VA examination report indicates that specific testing is necessary in order to determine whether the Veteran is diagnosed with the claimed dementia, and as that indicated testing has not been conducted, the Board finds that the evidence does not provide an adequate basis for an appellate decision that would likely survive Court scrutiny. The Board must remand this issue to accomplish all indicated medical testing to resolve the question of whether the Veteran is diagnosed with the claimed dementia, and to obtain an appropriate etiology opinion if dementia is diagnosed. With regard to the issue of entitlement to service connection for alcohol addiction, the Board's October 2010 remand directed that a VA examination report address the question of the etiology of the Veteran's alcohol addiction. The October 2010 remand specifically directed that the examiner address whether it is "at least as likely as not (50 percent or higher degree of probability) that the Veteran's alcohol dependence was aggravated by his service-connected PTSD?" Subsequently, a March 2011 VA psychological examination report addressed the question of whether the Veteran's alcohol dependence has been caused by his PTSD, but very clearly did not address the question of whether the Veteran's alcohol dependence has been aggravated by his PTSD. Importantly, then, a new VA examination in May 2012 sought to provide a psychiatric opinion addressing the question of aggravation. Unfortunately, the May 2012 opinion does not adequately resolve this matter; it appears that the May 2012 opinion may have been mis-transcribed. The examiner stated: "There is no conflicting medical evidence nor opinions. I agree with prior evaluators who opine that the patient's PTSD directly caused or exacerbated his alcohol dependence / abuse." However, it is unclear what "prior evaluators" are being cited by this statement (the prior medical opinions of record appear to find that PTSD did not cause the Veteran's alcohol dependence). Moreover, the May 2012 opinion's discussion presents a rationale that does not appear to correspond to the stated conclusion: the examiner questions whether the Veteran actually has abusive or problematic alcohol dependence, and then cites that the Veteran's drinking was at its worst when exposed to occupational stresses that he has become able to avoid in retirement. As there remains no VA examination report or other evidence adequately addressing the question of whether the Veteran's alcohol dependence has been permanently aggravated by his PTSD, the Board must remand this issue to develop the appropriate evidence necessary for informed appellate review and to ensure compliance with the Board's October 2010 remand directives. The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the issues of entitlement to service connection for (1) a respiratory disorder, (2) osteoarthritis or arthralgias of multiple joints, and (3) a disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias), the Board notes that the Veteran has raised these claims to include an alternative contention that these disabilities may be caused or aggravated by the alcohol addiction for which he also seeks service connection. The statement of the Veteran's attorney representative in May 2004 set out the claim as primarily claiming service connection for a set of disabilities as secondary to the Veteran's service-connected PTSD, but specifically raises the alternative theory of service connection: If the VA determines that [the Veteran]'s osteoarthritis, polyarthralgias, gastrointestinal disorder, respiratory disorder, and dementia are not directly related to PTSD, then he requests the VA to consider whether the conditions are secondary to PTSD-induced alcohol and nicotine abuse. Since the Veteran is claiming that these disabilities may be due to alcohol addiction, the outcome of the Veteran's alcohol addiction claim being remanded on appeal may impact the eventual determination of the respiratory, osteoarthritis/arthralgias, and other chronic pain disability claims on appeal. As such, completion of the necessary development for adjudication of the alcohol addiction issue is necessary before the Board may proceed with appellate review of the respiratory, osteoarthritis/arthralgias, and other chronic pain disability issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that when a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The Board additionally notes that the Veteran's claims of entitlement to service connection for osteoarthritis or arthralgias of multiple joints and for disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias) involve contentions and symptom complaints that somewhat unclearly overlap with each other and with those associated with the issue of entitlement to service connection for peripheral neuropathy. The Board also notes that the Veteran has made statements suggesting that he broadly contends that his "pain" from such conditions is due to herbicide exposures during his military service; for instance, his April 2007 written statement asserts: "All the causes for my pain when I originally went to military doctors were not discovered because of their ignorance to these types of illness caused by PTSD or chemicals...." The Veteran's attorney has repeatedly and broadly asserted, including as stated in a recent August 2012 statement, that there is an "intertwined nature of all his medical and psychiatric conditions" and asserts that "all of his medical conditions are inextricably intertwined." Under the circumstances, with review of all reasonably specifically articulated contentions and recent developments pertinent to this case, the Board finds it appropriate to direct that new VA examinations with medical opinions clearly addressing each of the Veteran's claimed disabilities remaining on appeal with attention to whether each (1) had onset during military service, (2) has been caused by exposure to tactical herbicides during military service, (3) has been caused or aggravated by service-connected disability (including diabetes mellitus and PTSD), or (4) is otherwise etiologically linked to the Veteran's military service. The Board also notes that the Veteran's attorney has repeatedly stated: "[t]he veteran receives ongoing, relevant medical care from previously identified medical providers," and "the veteran respectfully request the VA to collect all ongoing medical reports." These statements to not appear to identify any medical providers nor otherwise describe outstanding medical evidence with any greater specificity. As these issues must be remanded for other reasons, the Board believes that it is reasonable to direct that a letter be sent to the Veteran requesting that he actually identify any outstanding medical evidence that he may wish VA to assist him in obtaining. While VA has a statutory duty to assist the appellant in developing evidence pertinent to a claim, the appellant also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). With regard to the issue of entitlement to a compensable initial disability rating for service-connected GERD, the Board finds that a new VA examination to evaluate the current severity of the disability is necessary at this time. The August 2011 VA examination report evaluating the Veteran's GERD indicates that the Veteran had "no current problems or complaints" associated with GERD since the disease was controlled with medication. However, the Veteran's attorney submitted a written statement in April 2012 which expresses that the Veteran "has substernal, arm, and shoulder pain." This assertions speaks to specific elements of the rating criteria for a compensable disability rating, and the statement indicates that the Veteran is now experiencing symptoms that he was not experiencing at the time of the August 2011 VA examination. VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Under the circumstances of this case, the Board finds that another VA examination is appropriate. With respect to the issue of entitlement to TDIU, the Court has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, the Veteran's statements have repeatedly included references to being unable to work due to service-connected disabilities, and the August 2012 Form 9 perfecting the appeal of the claim of entitlement to an increased disability rating for GERD included his attorney's contention that "the evidence supports his claims, including entitlement to TDIU benefits...." This contention has been articulated repeatedly. Accordingly, and in light of the Court's decision in Rice, the Board finds that a claim for TDIU has been raised by the record. In order to ensure due process, the RO will be directed to conduct the initial adjudication of this issue (following resolution of all issues with which the TDIU issue is inextricably intertwined). Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action to ensure that the Veteran has been furnished proper VCAA notice and assistance with regard to each issue in this case. In particular, the RO should contact the Veteran and request that he identify any sources of outstanding private treatment records (as the Veteran's attorney has repeatedly suggested that there may be outstanding medical evidence from ongoing treatment); the RO should take appropriate action to obtain any pertinent treatment records identified by the Veteran. The RO should also ensure that the set of VA treatment records associated with the claims file is updated to include the most recent pertinent VA treatment records. After the RO has determined that the record is complete, the remaining remand directives should be completed. 2. The Veteran should be scheduled for appropriate VA examination or examinations to determine the nature and etiology of his peripheral neuropathy, to include meralgia parasthetica of the right leg. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's peripheral neuropathy has been caused by his exposure to tactical herbicides during his military service? b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's peripheral neuropathy has been caused by any service connected disability; in particular, has the peripheral neuropathy been caused by his service-connected PTSD or his service-connected diabetes mellitus? c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's peripheral neuropathy has been permanently aggravated by any service connected disability; in particular, has the peripheral neuropathy been aggravated by his service-connected PTSD or his service-connected diabetes mellitus? d) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's peripheral neuropathy had onset during, or is otherwise causally linked to, his military service? In answering these questions, please discuss the Veteran's own account of pertinent history as well as all pertinent evidence in the claims file, including all pertinent previous medical opinions. If the Veteran does not report for the scheduled examination, the claims file should nevertheless be made available to an appropriate examiner for review and for a response to the posed questions. 3. The Veteran should be scheduled for appropriate VA examination or examinations to determine the nature and etiology of his claimed skin disease manifested by rash of the groin and legs. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file (including the December 2006 VA treatment record indicating diagnoses of tinea and dermatitis) and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed skin disease manifested by rash of the groin and legs has been caused by his exposure to tactical herbicides during his military service? b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed skin disease manifested by rash of the groin and legs has been caused by any service connected disability; in particular, has the claimed skin disease manifested by rash of the groin and legs been caused by his service-connected PTSD or his service-connected diabetes mellitus? c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed skin disease manifested by rash of the groin and legs has been permanently aggravated by any service connected disability; in particular, has the claimed skin disease manifested by rash of the groin and legs been aggravated by his service-connected PTSD or his service-connected diabetes mellitus? d) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed skin disease manifested by rash of the groin and legs had onset during, or is otherwise causally linked to, his military service? In answering these questions, please discuss the Veteran's own account of pertinent history as well as all pertinent evidence in the claims file, including all pertinent previous medical opinions. If the Veteran does not report for the scheduled examination, the claims file should nevertheless be made available to an appropriate examiner for review and for a response to the posed questions. 4. The Veteran should be scheduled for appropriate VA examination or examinations to determine the nature and etiology of his claimed dementia. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) The examiner should make a clear medical determination as to whether the Veteran is diagnosed with dementia. The examiner's attention is directed to the fact that a prior VA examiner in March 2011 expressed being "unable to diagnose dementia without resorting to speculation," and explained that the Veteran "has not had a medical assessment nor a neurospsychological [sic] assessment for this disorder." A medical assessment, to include any indicated neuropsychological or other testing, should be completed for the purpose of determining if the Veteran has dementia. b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's dementia (if diagnosed) has been caused by his exposure to tactical herbicides during his military service? c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's dementia (if diagnosed) has been caused by any service connected disability; in particular, has the dementia (if diagnosed) been caused by his service-connected PTSD or his service-connected diabetes mellitus? d) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's dementia (if diagnosed) has been permanently aggravated by any service connected disability; in particular, has the dementia (if diagnosed) been aggravated by his service-connected PTSD or his service-connected diabetes mellitus? e) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's dementia (if diagnosed) had onset during, or is otherwise causally linked to, his military service? In answering these questions, please discuss the Veteran's own account of pertinent history as well as all pertinent evidence in the claims file, including all pertinent previous medical opinions. If the Veteran does not report for the scheduled examination, the claims file should nevertheless be made available to an appropriate examiner for review and for a response to the posed questions. 5. The Veteran should be scheduled for appropriate VA examination or examinations to determine the nature and etiology of his claimed disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias). It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) The examiner should make a clear medical determination as to the medical diagnosis, if any, associated with the Veteran's claimed disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias). In answering this question, the examiner should address the prior diagnosis of "chronic pain disorder" in a December 2006 VA treatment record. b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias), if any is diagnosed, has been caused by his exposure to tactical herbicides during his military service? c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias), if any is diagnosed, has been caused by any service connected disability; in particular, has the claimed disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias), if any is diagnosed, been caused by his service-connected PTSD or his service-connected diabetes mellitus? d) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias), if any is diagnosed, has been permanently aggravated by any service connected disability; in particular, has the claimed disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias), if any is diagnosed, been aggravated by his service-connected PTSD or his service-connected diabetes mellitus? e) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed disability manifested by chronic pain (aside from osteoarthritis or polyarthralgias), if any is diagnosed, had onset during, or is otherwise causally linked to, his military service? In answering these questions, please discuss the Veteran's own account of pertinent history as well as all pertinent evidence in the claims file, including all pertinent previous medical opinions. If the Veteran does not report for the scheduled examination, the claims file should nevertheless be made available to an appropriate examiner for review and for a response to the posed questions. 6. The Veteran should be scheduled for appropriate VA examination or examinations to determine the nature and etiology of his claimed respiratory disorder. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) The examiner should make a clear medical determination as to the medical diagnosis, if any, associated with the Veteran's claimed respiratory disorder. b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed respiratory disorder has been caused by his exposure to tactical herbicides during his military service? c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed respiratory disorder has been caused by any service connected disability; in particular, has the claimed respiratory disorder been caused by his service-connected PTSD or his service-connected diabetes mellitus? d) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed respiratory disorder has been permanently aggravated by any service connected disability; in particular, has the claimed respiratory disorder been aggravated by his service-connected PTSD or his service-connected diabetes mellitus? e) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed respiratory disorder had onset during, or is otherwise causally linked to, his military service? In answering these questions, please discuss the Veteran's own account of pertinent history as well as all pertinent evidence in the claims file, including all pertinent previous medical opinions. If the Veteran does not report for the scheduled examination, the claims file should nevertheless be made available to an appropriate examiner for review and for a response to the posed questions. 7. The Veteran should be scheduled for appropriate VA examination or examinations to determine the nature and etiology of his osteoarthritis or arthralgias of multiple joints. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's claimed osteoarthritis or arthralgias of multiple joints have been caused by his exposure to tactical herbicides during his military service? b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's osteoarthritis or arthralgias of multiple joints have been caused by any service connected disability; in particular, have the osteoarthritis or arthralgias of multiple joints been caused by his service-connected PTSD or his service-connected diabetes mellitus? c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's osteoarthritis or arthralgias of multiple joints have been permanently aggravated by any service connected disability; in particular, have the osteoarthritis or arthralgias of multiple joints been aggravated by his service-connected PTSD or his service-connected diabetes mellitus? d) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's osteoarthritis or arthralgias of multiple joints had onset during, or are otherwise causally linked to, his military service? In answering these questions, please discuss the Veteran's own account of pertinent history as well as all pertinent evidence in the claims file, including all pertinent previous medical opinions. If the Veteran does not report for the scheduled examination, the claims file should nevertheless be made available to an appropriate examiner for review and for a response to the posed questions. 8. The Veteran should be scheduled for appropriate VA examination or examinations to determine the nature and etiology of his alcohol addiction. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's alcohol addiction has been caused by any service connected disability; in particular, has the alcohol addiction been caused by his service-connected PTSD? b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's alcohol addiction has been permanently aggravated by any service connected disability; in particular, has the alcohol addiction been aggravated by his service-connected PTSD? In answering these questions, please discuss the Veteran's own account of pertinent history as well as all pertinent evidence in the claims file, including all pertinent previous medical opinions. If the Veteran does not report for the scheduled examination, the claims file should nevertheless be made available to an appropriate examiner for review and for a response to the posed questions. 9. The Veteran should be scheduled for an appropriate VA examination to determine the extent and severity of his GERD. It is imperative that the Veteran's claims file be made available to the examiner to review in connection with the examination. The examiner should be asked to determine the extent and severity of the Veteran's GERD and report all examination findings to allow for evaluation under VA's diagnostic criteria. In particular, the examiner should identify which of following is found to be a manifestation of the Veteran's GERD productive of considerable impairment of health: persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, substernal pain, arm pain, or shoulder pain. All medically appropriate diagnostic tests should be conducted and a detailed rationale for all opinions expressed should be provided. 10. To avoid further remand, the RO should review the examination reports obtained and ensure that the requested findings and opinions have been reported, and that all opinions and conclusions expressed are supported by a complete rationale. 11. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues on appeal. The RO readjudication should include the TDIU issue (when appropriate with regard to other pending inextricably intertwined issues). The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, 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. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs