Citation Nr: 1302776 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-15 041 ) 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 service connection for a skin disability of the scalp, to include scabs on top of the head. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypertension with hypertensive kidney disease. 3. Entitlement to an initial compensable evaluation for hypertension. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for status post right eye corneal abrasion. 6. Entitlement to service connection for low back muscle spasm. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, had active service from May 1974 to June 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2008, November 2010, and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The July 2008 rating found that the Veteran had not submitted new and material evidence to reopen service connection for scabs on the top of the head and hypertension. The November 2010 rating decision denied service connection for diabetes mellitus. In a February 2011 Decisions Review Officer (DRO) decision, the RO reopened service connection for hypertension and granted service connection for hypertension, and assigned a 0 percent initial rating, effective from December 17, 2007. The Veteran subsequently perfected an appeal of the issue of initial evaluation for hypertension. In May 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in San Antonio, Texas (Travel Board). A transcript of this hearing is of record. The Veteran's claim to reopen service connection for scabs on top of the head, and the underlying service connection claim, has been re-characterized to one of service connection for a skin disability of the scalp, to include scabs on top of the head, to better comport to the medical evidence of record. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Board notes that additional evidence was added to the Veteran's Virtual VA electronic claims file in June 2012 without the benefit of a waiver of the right to have the RO/Agency of Original Jurisdiction (AOJ) consider it in the first instance. See 38 C.F.R. § 20.1304 (2012). This evidence consists of VA outpatient treatment records dated from May 2009 to October 2011. Additionally, it is observed that the RO/AOJ never considered a March 2010 VA examination and medical opinion regarding the etiology of the Veteran's claimed skin disability of the scalp in any adjudicative determination such as a supplemental statement of the case (SSOC). However, it is not necessary that this evidence be returned to the RO/AOJ for initial consideration because no conceivable prejudice to the Veteran could result from the Board's reopening of service connection for a skin disability of the scalp, to include scabs on top of head, or the grant of the underlying service connection claim. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Regarding the Veteran's appeal for an initial compensable evaluation for hypertension, in a September 2012 written statement he waived his right to have the RO/AOJ consider in the first instance private treatment records dated from November 2005 to February 2012 and written statements he submitted in July 2012. See 38 C.F.R. § 20.1304. Additionally, it is observed that the newly added VA treatment records on Virtual VA are being used to grant a 10 percent rating for hypertension, but no more, and that the Veteran is not be prejudiced by this action because under the diagnostic criteria that the Veteran's hypertension is rated, 38 C.F.R. § 4.104, Diagnostic Code 7101, specific diagnostic or systolic blood pressure readings are required for a rating in excess of 10 percent and these treatment records do not show that they are met; thus, the Veteran is not prejudiced by the RO/AOJ not considering them in the first instance as there is no reasonable possibility that they could support a rating in excess of the 10 percent that the Board is granting. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to an appellant are to be avoided). As such, there is no reason to delay the consideration of the claim. The claims of service connection for diabetes mellitus, sleep apnea, status post right eye corneal abrasion, and low back muscle spasm are being remanded for other reasons. The RO/AOJ can consider these newly added VA treatment records while completing the other additional development directed by the Board. Thus, remand is not required under 38 C.F.R. § 20.1304(c). The issues of entitlement to service connection for diabetes mellitus, sleep apnea, status post right eye corneal abrasion, and low back muscle spasm 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. Service connection for scabs on top of the head was last denied by the RO in a January 2005 rating decision on the basis that new and material evidence had not been submitted to reopen service connection for scabs on top of the head that had been previously denied in August 1996. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 2. Since the January 2005 rating decision denying reopening of service connection for scabs on top of the head, the additional evidence relates to the unestablished fact of whether a skin disability of the scalp is related to service. 3. The Veteran manifested scabs on top of the head in service, and experienced chronic skin symptoms of his scalp during service. 4. The Veteran had continuous symptoms of a skin disability of his scalp in the years following service. 5. The current skin disability of the scalp is associated with the in-service scalp symptoms. 6. For the initial appeal period, the Veteran's hypertension more closely approximates that of a history of elevated diastolic blood pressure of predominately 100 or more with the use of continuous medication for control. 7. At no time during the entire initial appeal period has the Veteran's hypertension been manifested by diastolic pressure that more nearly approximates predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The January 2005 rating decision denying reopening service connection for scabs on the top of the head became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The additional evidence received subsequent to the January 2005 rating decision denying reopening of service connection for scabs on the top of the head is new and material evidence to reopen service connection. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Resolving reasonable doubt in the Veteran's favor, a skin disability of the scalp, to include scabs on top of the head, was incurred during service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for the assignment of an initial rating of 10 percent, but no more, for the service-connected hypertension are met for the entire period. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Regarding the new and material claim and underlying claim of service connection for a skin disability of the scalp, inasmuch as the full benefits sought are being granted, there is no reason to further discuss the duties to notify and assist under the VCAA. In February 2008, the RO provided the Veteran pre-adjudication notice on the claim to reopen service connection for hypertension. This notification complied with the VCAA notice requirements of identifying the evidence necessary to substantiate a claim, and the relative duties of VA and the claimant to obtain evidence. This February 2008 letter also provided appropriate notice regarding disability ratings and effective dates was provided, in accordance with Dingess, 19 Vet. App. at 473. Moreover, because the appeal for a higher initial rating for hypertension is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his appeal. 38 U.S.C.A. § 5103A. VA has obtained service treatment records (STRs), post-service VA and private treatment records, and other records identified by the Veteran. The Veteran was also given the opportunity to provide testimony to the Board in May 2012. The Veteran has not indicated he is in receipt of disability benefits from the Social Security Administration (SSA). In a May 2012 VA Form 21-4142, Authorization and Consent to Release Information to VA, the Veteran identified Dr. C.B. as a physician who provided him with care for left knee pain. In June 2012 the Veteran sent a second VA Form 21-4142 identifying Dr. C.B. This form appears to have been sent to VA in conjunction with a May 2012 claim of service connection for a left knee disability, and the Veteran has not otherwise indicated that Dr. C.B. treats him for hypertension or that these records would otherwise be relevant. Thus, there is no need for VA to obtain them prior to the Board adjudicating the claim for a compensable rating for hypertension. See 38 C.F.R. § 3.159(c)(1). The Veteran has been afforded an adequate examination on the issue of a compensable initial rating for hypertension. The Veteran was provided with a VA examination in March 2010. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA findings obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA examiner noted a review of the Veteran's claims file, considered all of the pertinent evidence of record, to include STRs, VA treatment records, and private treatment records, conducted a physical examination, conducted blood pressure testing, and considered the statements of the Veteran. 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). Under these circumstances, VA fulfilled its obligation to notify and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board otherwise concludes that all relevant evidence necessary to decide the issues on appeal have been identified and obtained. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran to notify and assist have been fulfilled with respect to the issues on appeal. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Reopening Service Connection for a Skin Disability of the Scalp Service connection for scabs on top of the head was initially denied by the RO in an August 1996 rating decision on the basis that service connection was not warranted based on the lack of further complaints after December 1994 STRs showed complaints of scabs on top of head for 2-3 months, assessed as probable tinea capitis (ringworms) treated with Selsun shampoo. The Veteran did not appeal this determination, which became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. The Veteran sought to reopen service connection in August 2004. In a January 2005 rating decision, the RO denied reopening the claim on the basis that no new and material evidence had been received. The Veteran did not appeal this determination, which became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. The last decision denial on any basis is to be finalized. Evans v. Brown 9 Vet. App. 273 (1996). In December 2007, the Veteran filed a claim to reopen service connection for a skin disability of the scalp. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a). 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, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence of record at the time of the August 1996 denial of service connection for scabs on top of the head included the STRs, which showed that in December 1994 the Veteran complained of scabs on top of his head for 2-3 months, assessed as probable tinea capitia (ringworms), treated with Selsun shampoo. No VA examination was conducted, but the RO did note the Veteran's retirement examination and that it was completely negative for the claimed condition. Only duplicate copies of the Veteran's STRs were submitted in connection with the January 2005 denial of reopening. Evidence received subsequent to the January 2005 rating decision includes VA treatment records contained in the Virtual VA electronic claims file dated in September 2008 noting that the Veteran had a past medical history of seborrhea (per chart) and presented for dermatology evaluation with a 15 year history of itchy, red papules on scalp and face. He was previously given selenium sulfide shampoos for recurrent itchy rash on scalp with very little improvement noted on this therapy. He denied any pustules or significant scaling or dandruff of scalp and face in past. Examination revealed hyperpigmented, slightly lichenified, excoriated plaques on the scalp. An assessment was given of likely lichen simplex chronicus and prurigo nodules, no evidence of active seborrhea today on examination. It was noted that he was to continue selenium sulfide shampoo. The Veteran also testified during the May 2012 Board hearing that his skin condition began in 1993 during field training, and that it started out as a bump and turned into a scab and would not heal, and that they gave him shampoos and ointments. He reported that it persisted to be very itchy and he scratched it, and that, although his medications ease the pain, they have not cured it. He also testified that it spread until it got a little bigger during service, and that it has involved the same two spots on his head and has been constant since service. The Board finds that evidence received subsequent to the January 2005 denial of reopening of service connection for scabs on top of the head is sufficient to now reopen service connection. The September 2008 VA treatment record shows that the Veteran currently has a skin disability of his scalp and has reportedly manifested symptoms for 15 years, which was during a period of active service. Additionally, the lay testimony given at the Board hearing regarding a continuity of symptomatology following service related to a skin disability of his scalp, including scabs on top of his head, is found to be credible. See Duran, 7 Vet. App. at 220. In a veteran's claim for benefits, lay evidence can be competent and sufficient to establish a diagnosis of a condition when either a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis, or where lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). The Veteran has submitted new and material evidence that is neither cumulative or redundant of the evidence previously considered, that addresses the reason for his prior denial of service connection, and that raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Thus, his claim is reopened. Service Connection for a Skin Disability of the Scalp Having decided that the claim is reopened, the Board can conduct a de novo review without prejudice to the Veteran. See Bernard, 4 Vet. App. at 384. The RO has provided the Veteran notice as to the requirements for service connection; the Veteran has argued throughout the appeal on the merits, not on the question of whether new and material evidence has been presented; and he has had a hearing on appeal; therefore, there is no prejudice to the Veteran based on de novo review. Furthermore, given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from the Board's adjudication of the claim. See Bernard, supra. After a review of all the evidence, the Board finds that the evidence is in equipoise on the question of whether the Veteran manifested a chronic skin disability of the scalp in service, including experiencing chronic symptoms of a skin disability of the scalp during service. December 1994 STRs noted that the Veteran complained of scabs on his head for 2-3 months. The Veteran reported an itchy scalp and that prior Tegrin treatment did not help. Objectively, there were lesions on the scalp. An assessment of probable tinea capitia was given, and treatment with Selsun shampoo was ordered. Clinical evaluation during the May 1996 separation examination noted that the head and scalp were normal. During the Board hearing in May 2012, the Veteran testified that his itchy scalp and scabs began during service and that it continued thereafter. The Veteran's testimony is credible regarding complaints of a skin disability in service and continued thereafter, as it is consistent with the fact that the Veteran was treated for tinea capitia that persisted for 2-3 months during service. Resolving reasonable doubt in the Veteran's favor on this question, the Board finds that despite his scalp being found to be clinically normal during service separation, the Veteran manifested a skin disability of his scalp in service and experienced chronic skin symptoms of his scalp during service. The Board also finds that the evidence is in equipoise on the question of whether the Veteran had continuous symptoms of scalp itching, pain, scabs, and lesions in the years after service. The September 2008 VA treatment record noted that the Veteran had a past medical history of seborrhea (per chart) and presented for dermatology evaluation with a 15 year history of itchy, red papules on scalp and face. Was previously prescribed Synalar solution 0.01% and given selenium sulfide shampoos for recurrent itchy rash on scalp with very little improvement noted on this therapy. He described eruption as initially beginning as very pruritic, erythematous papules on vertex, occipital scalp, and right nasolabial fold, all of which itches constantly and that he picks at in his sleep. He denied any pustules or significant scaling or dandruff of scalp and face in past. Examination revealed hyperpigmented slightly lichenified, excoriated plaques times 2 on left and right vertex scalp, and times 1 on left occipital scalp. An assessment was given of likely lichen simplex chronicus and prurigo nodules, no evidence of active seborrhea today on examination. It was noted that he was to continue selenium sulfide shampoo. April 2009 VA treatment records noted that he continued to be prescribed selenium sulfide lotion/shampoo. February 2010 private treatment records noted that the Veteran presented for evaluation of two pruritic fixed scalp lesions present for 15 years. He reported they become more raised and more pruritic when he does not use ointment supplied by VA. There were no lesions elsewhere. The Veteran admitted to picking/scratching at areas. An examination was conducted and punch samples for biopsy testing were taken. An assessment of skin neoplasm of uncertain behavior was given. Following testing, a clinical diagnosis was given of skin, left scalp, consistent with lichen simplex chronicus. Lichen simplex chronicus is defined as "eczema caused by repeated itching and rubbing or scratching of the skin; it may arise spontaneously or be associated with dermatoses." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1048 (31st ed. 2007). The Veteran has given testimony that he has had the same itchy bumps and scabs in a similar location on his head continually since service. This testimony is found to credible in light of the fact that the Veteran was treated for a skin disease during service, post-service VA and private treatment records indicate that he has complained of a long history of problems with the skin of his scalp and was prescribed what appears to be very similar shampoo in service and following service, and submitted an initial claim for service connection for scabs on top of the head disability soon after discharge from service. Thus, resolving reasonable doubt in the Veteran's favor on this question, the Board finds that the Veteran had continuous symptoms of scalp pain, itching, lesions, and scabs in the years after service. Finally, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran's current skin disability of the scalp, lichen simplex chronicus and prurigo nodules, is related to the tinea capitia causing scabs on his scalp during active duty service. A VA examination was conducted in March 2010. The examiner noted a review of the Veteran's claims file. It was noted as a history that the injury or infection causing the scar on the left and right vertex of the scalp was in December 1994. A physical examination was conducted and it was noted that 2 scars of the head were present. Diagnoses of left vertex scalp lesion and scar, right vertex of scalp, were given. A separate scar of the left posterior scalp was also found, and it was noted as a history that the date of the injury or infection causing it was possibly 1994. The examiner opined that the current lesions on the Veteran's scalp are significant scars from previous inflammatory lesions, which were evaluated by a VA dermatologist in September 2008 and diagnosed as lichen simplex chronicus and prurigo nodules. The examiner reasoned that there was no evidence of active fungal infections as diagnosed in service, and that the treatment for the current areas of scarring with topical or injectable cortisone steroid would actually make tinea capitis worse if it was the cause of these present lesions. The examiner explained that severe tinea capitis accompanied by large inflammatory lesions (kerions) may result in scarring in the location or kerions, but there is no documentation of this complication in the STRs; the Veteran was noted to have only superficial scaling of the scalp. The Board finds that the March 2010 VA medical opinion, while competent medical evidence, is of little probative weight, as the examiner does not appear to have considered the Veteran's history of continuous skin problems with his scalp following service in rendering the opinion, and appears to have limited his diagnosis to only whether the Veteran has scars on his scalp rather than a skin disability such as those diagnosed by the September 2008 and February 2010 VA and private treatment providers. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The post-service credible continuity of symptomatology of the scalp provides a nexus between service and the Veteran's currently demonstrated disability, lichen simplex chronicus and prurigo nodules. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (continuity of post-service symptoms is "a substitute way of showing" in-service incurrence and medical nexus). The Veteran's reported symptoms, such as scabs, itching, and lesions in the same anatomic location of his scalp, are consistent with symptoms associated with in-service symptoms and treatment and he is certainly competent to report observable symptoms such as scabs, itching, and lesions, which lie within the realm of his personal experience. See Layno v. Brown, 6 Vet. App. 465 (1994). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a skin disability of the scalp, to include scabs on top of the head, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initial Disability Rating for Hypertension Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. §§ 3.102, 4.3. In a claim for a higher original rating after an initial award of benefits, all of the evidence submitted in support of a veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the Veteran's statements and sworn testimony regarding symptoms of disability. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. Under Diagnostic Code 7101, a 10 percent rating is warranted for hypertensive vascular disease (hypertension and isolated systolic hypertension) where diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or where the an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. A 20 percent rating requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A rating of 40 percent requires diastolic pressure predominantly 120mm or more. A rating of 60 percent requires diastolic blood pressure predominantly 130mm or more. According to Note 1, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104. The Veteran's May 1996 service separation examination noted a blood pressure reading of 137/78. STRs dated in October 1979 show blood pressure readings of 162/60, and November 1995 STRs show a blood pressure reading of 154/91. VA and private treatment records dated throughout the pendency of the Veteran's claim contain blood pressure measurements. A December 2007 VA treatment record noted a reading of 170/100, but the vast majority of the other medical evidence of record does not show diastolic blood pressure readings of predominately 100 or more, systolic readings of predominantly 160 or more, or a history of diastolic blood pressure of 100 or more. For example, February 2008 VA treatment records show readings of 136/72, August 2008 records show readings of 110/68, March 2009 records show readings of 120/78, April 2009 records show readings of 177/89, August 2009 records show readings of 177/89, October 2009 records show readings of 142/78, September 2010 records show readings of 140/90, April 2011 records show readings of 110/70, May 2011 records show readings of 140/85, and July 2011 records show readings of 130/70. VA treatment records indicate that the Veteran has been prescribed various medications for hypertension throughout the pendency of his appeal. Additionally, private treatment records dated from November 2005 to February 2012 note numerous blood pressure reading; however, the highest among these is a September 2008 record noting a reading of 162/90 and an October 2009 record noting a reading of 185/81. The vast majority of the records show diastolic blood pressure readings of less than 100 and systolic readings of less than 160. For example, November 2005 blood pressure readings were 152/86, March 2007 readings were 136/82, March 2009 readings were 140/ 86, October 2010 readings were 129/80, February 2011 readings were 140/85, July 2011 readings were 119/70, and February 2012 readings were 139/66. Private treatment records indicate that the Veteran has been prescribed various medications for hypertension throughout the pendency of the appeal. A VA examination was conducted in March 2010. The examiner noted a review of the Veteran's claims file. The Veteran reported the onset of his high blood pressure was in 1986, when was applying for drill sergeant school and was noted to have high blood pressure readings of 140/80. The examiner noted that in March 1993 the readings were 158/86, in October 1993 the readings were 160/85, in November 1995 the readings were 154/91, and in April 1996 the readings were 144/90. It was noted further that his problem became progressively worse and he started on medications for persistently high blood pressure in 2004. His current treatment consisted of several medications that he used daily, including Angiotensin II Receptor, Beta Blocker, Thiazide Diuretics, HCTZ, telmisartan, and atenolol. A physical examination was conducted and his blood pressure readings were 136/88, 138/86, and 130/90. The Veteran was given a diagnosis of essential hypertension, and the examiner assessed that there were no effects on usual occupation, and that the Veteran was working full time at the Postal Service. The examiner also opined that it is likely that the Veteran's essential hypertension had its onset while on active duty. A higher rating for a service-connected disability will be assigned if it more nearly approximates such rating. See 38 C.F.R. §§ 4.7, 4.21. 38 C.F.R. § 4.21 notes that in view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all findings specified. No criteria exist for a non-compensable evaluation under 38 C.F.R. § 4.104, DC 7101. In every instance where a zero percent evaluation is not provided for, such shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The question thus is whether the Veteran more nearly approximates a non-compensable zero percent evaluation or the lowest compensable 10 percent evaluation. After a careful review of all the evidence of record, the Board finds that, for the entire initial rating period, the Veteran's hypertension is shown to more closely approximate that of a history of elevated diastolic blood pressure of predominately 100 or more with the use of continuous medication for control, as required for a 10 percent disability rating under Diagnostic Code 7101. Of the numerous blood pressure measurements of record only a few (much less than half) show diagnostic pressure readings of 100 or more or systolic pressure readings of 160 or more; thus, given this, his diastolic and systolic blood pressure cannot be said to "predominately" be respectively be 100 or more or 160 or more. However, the evidence in this case shows that the Veteran has been treated with prescription medication for hypertension since 2004, and currently uses HCTZ, telmisartan, and atenolol. With regard to requirement for a history of elevated diastolic blood pressure of predominately 100 or more, the history, including the Veteran's in-service treatment and post service treatment, does not reflect that diastolic blood pressure was predominately 100 or more given that, of the numerous blood pressure readings of record, only a few show a diastolic of even close to 100. However, it is also clear that his manifestations are not insignificant. Indeed, he must take medication continuously to control his blood pressure, still has control problems even though he does so, and his systolic readings are sometimes over 160, if not predominantly so as discussed above. Given this, and being conscious of 38 C.F.R. § 4.21, the Board finds that the criteria for a 10 percent initial evaluation for hypertension more nearly approximate than a non-compensable initial evaluation. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for the assignment of an initial rating of 10 percent are warranted for the entire initial rating period. 38 C.F.R. §§ 4.3, 4.7, 4.21. The Board next finds that an initial evaluation in excess of 10 percent is not warranted for any period. None of the blood pressure measurements during the period on appeal, whether taken at a VA or private facility, include a diastolic pressure of 110 or more or systolic pressure of 200 or more. It follows that such a pressure has not manifested at all, let alone predominated. Nor does the Veteran specifically contend this. Thus, a rating in excess of 10 percent is not warranted under Diagnostic Code 7101. 38 C.F.R. § 4.104. As a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the severity of his service-connected hypertension in relation to the applicable rating criteria, which require specific blood pressure readings, and his views are of no probative value. See Layno, 6 Vet. App. at 469. Even if the Veteran may be competent to report his own blood pressure readings that he has measured at home, he has not made specific claims that would warrant a rating in excess of 10 percent under the applicable diagnostic criteria. In sum, the weight of the credible and competent evidence shows the manifestations of the Veteran's hypertension does not warrant an initial rating in excess of 10 percent for any period of time during the appellate period. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Furthermore, the Board has considered the possibility for staged ratings. Fenderson, supra; Hart, supra. However, as the evidence does not show that the criteria for a rating in excess of 10 percent have been met at any time during the initial rating period, the Board concludes that staged ratings are inapplicable. Extraschedular and TDIU Consideration The Board has considered whether an extraschedular evaluation would have been warranted for hypertension. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, comparing the level of the Veteran's hypertension to the rating schedule, the degree of disability throughout the initial rating period under consideration is contemplated by the rating schedule; therefore, the schedular rating criteria is adequate to rate the Veteran's service-connected hypertension, and no referral for an extraschedular rating is required. In this regard, it is noted that the Veteran's symptoms-such as elevated systolic and diastolic blood pressure and the use of medication-are fully detailed in the rating schedule under 38 C.F.R. § 4.104, DC 7101, and there are no factors causing additional disability. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's service-connected hypertension. In the absence of exceptional factors associated with the hypertension, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) has also been considered. During the March 2010 VA examination, the examiner opined that the Veteran's hypertension caused no effects on his usual occupation at the United States Postal Service where he was employed full time. During a May 2011 VA examination conducted for a claim of service connection for diabetes mellitus, the examiner noted that the Veteran was working as a truck driver, but was not employed and had retired due to a on-the-job ruptured left quadriceps injury. A February 2011 document from the United States Office of Personal Management (OPM) noted that the Veteran's application for disability retirement had been approved, and an undated document from OPM noted that the Veteran claimed he was disabled due to a ruptured quadriceps tendon, but that a review of medical records show that he was disabled from his position as a tractor trailer operator due to non-traumatic rupture of tendon. Given this evidence, and the fact that neither the Veteran nor his representative has contended that he cannot work due to his service-connected hypertension, the matter of entitlement to a TDIU is not raised by the evidence of record. See Rice, 22 Vet. App. at 447. ORDER New and material evidence having been received, the appeal to reopen service connection for a skin disability of the scalp, to include scabs on top of the head, is granted. Service connection for a skin disability of the scalp, to include scabs on top of the head, is granted. An initial evaluation of 10 percent, but no more, for hypertension is granted. REMAND The Veteran seeks service connection for diabetes mellitus, sleep apnea, status post right eye corneal abrasion, and low back muscle spasm. Service Connection for Diabetes Mellitus Regarding the claim of service connection for diabetes mellitus, to include as secondary to the service connected hypertension and hypertension with hypertensive kidney disease, it is noted that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr, 21Vet. App. at 311. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran's claim of service connection for diabetes mellitus was received by VA in August 2009; thus, the current version of 38 C.F.R. § 3.310(b) is applicable to his appeal. The Veteran was provided with a VA examination to assist in determining the nature and etiology of the diabetes mellitus in May 2011. The examiner opined that the Veteran's diabetes mellitus is less likely as not a result of the treatment for service-connected essential hypertension, but of the hypertension. Both hypertension and diabetes mellitus are associated with his obesity and aggravate his diabetes mellitus, making blood glucose control difficult. The examiner's statement that the Veteran's hypertension and diabetes mellitus are associated with his obesity and aggravate his diabetes mellitus is unclear. Additionally, it is observed that the Veteran has not contended only that treatment for his hypertension causes diabetes mellitus, but rather that the two conditions are related. Therefore, this examination is not adequate and, on remand, the examiner should be asked to clarify his opinion. If the examiner is not available, the RO/AMC should schedule the Veteran for a new VA examination. See Barr at 311. Service Connection for Sleep Apnea, Right Eye, and Low Back Pursuant to the issues of entitlement to service connection for sleep apnea, status post right eye corneal abrasion, and low back muscle spasm, it is observed that the RO denied service connection for these disabilities in a January 2012 rating decision. This rating decision also denied service connection for left quadriceps atrophy. In a statement dated February 2012, the Veteran asserted that the January 2012 rating decision is without merit and discussed all of his claimed disabilities, including left quadriceps atrophy. In a formal Notice of Disagreement (NOD) form dated in May 2012, and received by the Board in July 2012, the Veteran specifically disagreed with, and sought appellate review for, the claims of service connection for obstructive sleep apnea, low back muscle spasm, and status post right eye corneal abrasion. He did not state that he disagreed with the denial of service connection for left quadriceps muscle atrophy. The February 2012 statement discussed how his claimed muscle atrophy affected the left knee. Given that the Veteran did not specifically disagree with the denial of service connection, or express a desire for, appellate review regarding the denial of the claim of service connection for left quadriceps muscle atrophy and then filed a valid of NOD regarding the other denials of service connection in July 2012, the Board finds that a valid NOD was not filed regarding the issue of service connection for left quadriceps muscle atrophy. See 38 C.F.R. § 20.201. A June 2012 letter from the RO to the Veteran indicates that the RO received the Veteran's May 2012 NOD, and that a Decision Review Officer contacted the Veteran and he indicated that additional evidence from a private physician was being submitted by the Veteran. The RO then noted that a statement of the case (SOC) will be issued upon receipt of this evidence. The United States Court of Appeals for Veterans Claims has held that, where the record contains a notice of disagreement as to an issue, but no SOC, the issue must be remanded to the originating agency to issue a SOC and to provide the claimant an opportunity to perfect the appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). In this case, it is possible that a SOC was issued by the RO and is in a temporary claims file at the RO; nevertheless, the Board must remand the issues of service connection for sleep apnea, status post right eye corneal abrasion, and low back muscle spasm so that a SOC can be issued by the AOJ or for assurance that a SOC has been issued. Additionally, in a May 2012 VA Form 21-4142, Authorization and Consent to Release Information to VA, the Veteran identified Dr. C.B. as a physician who provided him with care for left knee pain. This form was sent to the Board. In June 2012 the Veteran sent a second VA Form 21-4142 identifying Dr. C.B. Although it is unclear whether the RO has obtained these record, as it is possible they are in a temporary claims file at the RO as discussed above, and unclear whether they have any relevance to the claims of service connection for diabetes mellitus, sleep apnea, status post right eye corneal abrasion, and low back muscle spasm, given that the claims must be remanded for other reasons, to ensure VA fulfills its duty to assist the Veteran obtain evidence pursuant to 38 C.F.R. § 3.159(c)(1), the RO/AMC should attempt to obtain these records. Accordingly, the issues of service connection for diabetes mellitus, sleep apnea, status post right eye corneal abrasion, and low back muscle spasm are REMANDED for the following actions: 1. If private treatment records from Dr. C.B. have not already been obtained, take all necessary actions to obtain the private treatment records from Dr. C.B. as identified by the Veteran in a June 2012 VA Form 21-4142. Document all requests and any negative responses received in the claims file. 2. Issue a SOC to the Veteran and his representative addressing the issues of service connection for sleep apnea, status post right eye corneal abrasion, and low back muscle spasm, and include a discussion of all private and VA treatment records of record, including those in the Virtual VA electronic claims file. The Veteran and his representative must be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issues be returned to the Board for further appellate consideration. 3. Return the claims file to the VA examiner who evaluated the Veteran in May 2011, with instructions to review the record and explain his opinion. If the May 2011 VA examiner is unavailable, the Veteran should be afforded another examination, and the examiner is to answer the above noted questions. The VA examiner is to note a review of the relevant documents in the Veteran's claim file. The VA examiner is to provide the following opinions: Is it at least as likely as not that the Veteran's diabetes mellitus is caused by his service-connected hypertension with hypertensive kidney disease? If not, is it at least as likely as not that hypertension is permanently worsened in severity (aggravated) by service-connected hypertension with hypertensive kidney disease? If the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected condition before the onset of aggravation. The VA examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should provide a rationale for his or her opinion with reference to the evidence of record. Citation to medical authority/treatise would be helpful. A rationale should be provided for any opinion expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. 4. Readjudicate the issues of service connection for diabetes mellitus, sleep apnea, status post right eye corneal abrasion, and low back muscle spasm, including all private and VA treatment records of record, including those in the Virtual VA electronic claims file. If any claims remain denied, the RO/AMC should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs