Citation Nr: 1304233 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 94-23 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date prior to June 18, 1993, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to May 18, 1994, for the grant of service connection for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for rectal prolapse and, if so, whether service connection is warranted. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disorder of the feet, claimed as jungle rot and as due to herbicide exposure, and, if so, whether service connection is warranted. 5. Entitlement to service connection for peripheral neuropathy of the lower extremities, claimed as due to herbicide exposure. 6. Entitlement to service connection for the Veteran's son's abnormal feet, claimed as due to herbicide exposure. 7. Entitlement to service connection for hemorrhoids. 8. Entitlement to service connection for acne, claimed as due to herbicide exposure. 9. Entitlement to service connection for a vision disorder, claimed as due to herbicide exposure or secondary to service-connected hepatitis C and B. 10. Entitlement to service connection for gastritis, to include as secondary to service-connected hepatitis C and B. 11. Entitlement to an increased initial rating for hepatitis C and B, rated as 10 percent disabling prior to April 16, 2010, and as 20 percent disabling as of that date. 12. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1970. He had service in the Republic of Vietnam from November 1967 to November 1968. The procedural history in this case is complex. An abbreviated discussion will be provided since the matters currently on appeal come to the Board of Veterans' Appeals (Board) from several adverse rating decisions issued by several of the Department of Veterans Affairs (VA) Regional Offices (RO). The RO in Waco, Texas, currently has jurisdiction of the claims. A December 1993 rating decision issued by the RO in St. Louis, Missouri, denied, in pertinent part, the claims for service connection for hemorrhoids and PTSD. The Veteran perfected an appeal and the claims were initially remanded by the Board in April 1997. In February 2000, the claim for service connection for PTSD was again remanded but the claim for service connection for hemorrhoids was denied. Service connection for PTSD was ultimately granted in a March 2010 rating decision issued by the RO in Waco, Texas. Staged ratings were assigned effective June 18, 1993. The Veteran appealed the Board's February 2000 denial of service connection for hemorrhoids to the United States Court of Appeals for Veterans Claims (Court). In a July 2008 Order, the Court granted a July 2008 Joint Motion for Partial Remand (Joint Motion), vacated that portion of the Board's February 2000 decision that denied service connection for hemorrhoids, and remanded the matter to the Board. The claim was subsequently remanded by the Board in May 2009 for additional development and has been returned for appellate review. An October 1997 rating decision issued by the St. Louis RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation effective May 18, 1994. The Veteran has perfected an appeal of the effective date assigned. In a November 2003 rating decision, the St. Louis RO granted service connection for hepatitis C and B and assigned a 10 percent rating effective January 11, 2001. The Veteran has perfected an appeal of the initial rating assigned to this disability. The Board notes that the rating assigned for hepatitis C and B was subsequently increased by the RO in Waco to 20 percent effective April 16, 2010. See December 2010 rating decision. Despite the increased rating granted by the RO, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement (NOD) as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). A July 2008 rating decision issued by the RO in Waco denied service connection for jungle rot of the feet; a nervous condition; schizophrenia; peripheral neuropathy of the lower extremities; vision problems; the Veteran's son's abnormal feet; acne; gastritis; and generalized anxiety disorder, sleep disorder and panic attacks. The RO also declined to reopen claims for service connection for rectal prolapse, hemorrhoids, and major depression with fatigue and denied the claim for an effective date prior to July 17, 1997, for the grant of service connection for tinnitus. The Board notes that the July 2008 rating decision incorrectly styled the Veteran's claim for service connection for major depression with fatigue as a claim to reopen, despite the fact that he had never claimed service connection for this condition before. The Veteran has withdrawn his claim for service connection for major depression with fatigue, as well as his claims for service connection for a nervous condition; schizophrenia; and generalized anxiety disorder, sleep disorder and panic attacks, and those issues are no longer before the Board for appellate review. See January 2011 VA Form 21-4138. The July 2008 rating decision also incorrectly treated the Veteran's claim for service connection for jungle rot of the feet as an original claim, despite the fact that service connection for a bilateral foot disorder, to include a fungal infection, had been denied in an April 1997 Board decision. The Board also notes that the Veteran's claim for service connection for hemorrhoids was correctly identified in the July 2008 rating decision as a claim to reopen. The Board's February 2000 denial of that claim was vacated by the Court in July 2008. The issue has been characterized as an original claim as reflected in the title page and the Board's May 2009 remand. Lastly, the Board must note that although the Veteran filed an NOD regarding the RO's July 2008 denial of an earlier effective date for the grant of service connection for tinnitus, that issue was also the subject of the July 2008 Joint Motion and Court Order. The claim was denied by the Board in May 2009 and is no longer before it on appellate review. It is also important to mention that an April 16, 2010, letter from the Waco RO informed the Veteran that because a valid fee agreement had been properly filed by an accredited attorney, the sum of $2,551.84 had been withheld from the award in the March 2010 rating decision (that had granted service connection for PTSD) for the possible payment of fees. The Veteran submitted an NOD that was received on June 18, 2010, but the RO informed him in a December 2010 letter that the NOD had not been timely. The issue of the Veteran's unemployability has been raised by the record. See statement in support of claim received July 2006. Since entitlement to a TDIU is an element of a claim for increased rating, that issue has been included as listed on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was scheduled for Board hearings in January 2000 and October 2012, but failed to report to both of them. As the record does not indicate the Veteran has requested that the hearings be rescheduled, the Board deems the Veteran's requests for a hearing to be withdrawn. 38 C.F.R. § 20.704 (2012). The Veteran appears to have raised the issues of entitlement to service connection for a bilateral ear condition (other than tinnitus and bilateral hearing loss), for a tumor on the liver secondary to hepatitis C and B, and for diabetes mellitus. See statement received in July 2008; and VA Forms 21-4138 received in March 2007 and April 2010. Since these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The reopened claims for service connection for a skin disorder of the feet (claimed as jungle rot and as due to herbicide exposure) and rectal prolapse, the claims for service connection for hemorrhoids, acne (claimed as due to herbicide exposure), a vision disorder (claimed as due to herbicide exposure and service-connected hepatitis C and B), and gastritis (to include as secondary to service-connected hepatitis C and B), and the increased rating claim and the claim for a TDIU are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The Veteran was discharged from service in April 1970, and his original claims for service connection for PTSD and bilateral hearing loss were received at the RO on June 18, 1993, and May 18, 1994, respectively. 2. In an October 1997 rating decision, the RO granted service connection for bilateral hearing loss effective May 18, 1994, the date on which the claim for service connection was received. 3. In a March 2010 rating decision, the RO granted service connection for PTSD effective June 18, 1993, the date on which the claim for service connection was received. 4. The Veteran did not submit claims for PTSD or bilateral hearing loss prior to the date of receipt of his VA Forms 21-4138 on June 18, 1993, and May 18, 1994, respectively. 5. An unappealed December 1982 rating decision denied a claim for service connection for rectal bleeding/prolapsed; the subsequently received evidence includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 6. An unappealed April 1997 Board decision denied a claim of entitlement to service connection for a bilateral foot disorder, to include a fungal infection; the subsequently received evidence includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 7. Peripheral neuropathy of the lower extremities has not been present during the pendency of the claim. 8. The Veteran is seeking service connection for his son's abnormal feet, claimed as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 18, 1993, for the grant of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 2. The criteria for an effective date earlier than May 18, 1994, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 3. New and material evidence has been submitted to reopen the claim for service connection for rectal prolapse. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. New and material evidence has been submitted to reopen the claim for service connection for a skin condition of the feet, claimed as jungle rot. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The criteria for service connection for peripheral neuropathy of the lower extremities, claimed as due to herbicide exposure, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 6. There is no legal entitlement to service connection for the Veteran's son's abnormal feet, claimed as due to herbicide exposure. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to reopen The Veteran seeks to establish service connection for rectal prolapse and a skin disorder of the feet, claimed as jungle rot. See e.g., statements in support of claim dated in June 2005 and June 2006. The RO has declined to reopen the claim for rectal prolapse and has continued the denial issued in a previous final decision. See July 2008 rating decision. It has treated the claim for jungle rot as an original claim and denied it on the merits, but the Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). A rating decision issued in December 1982 denied a claim for entitlement to service connection for rectal bleeding/prolapse on the basis that there was no rectal bleeding/prolapse shown by the evidence of record. The RO notified the Veteran of this decision by letter dated in January 1983, but he did not appeal. A rating decision issued by the St. Louis, Missouri RO in December 1993 denied a claim for entitlement to service connection for a bilateral foot condition on the basis that there was no evidence of a foot condition in the service treatment records. The Veteran appealed, and in April 1997, the Board denied the claim on the basis that there was no competent medical evidence of a nexus between any current foot disorder, to include a fungal infection, and service. The Veteran did not appeal this decision. The Veteran filed claims to reopen in June 2005 and June 2006, and this appeal ensues from the July 2008 rating decision issued by the RO in Waco, Texas, which declined to reopen the claim for rectal prolapse on the basis that no new and material evidence had been submitted and which adjudicated the claim for jungle rot as an original claim, denying it on the merits. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Board notes that no pertinent evidence was received within the one year period following the notice of the December 1982 rating decision. The evidence added to the record thereafter reveals that the Veteran was diagnosed with rectal prolapse in 1991. See VA treatment records. He was also seen on several occasions with complaint of rectal bleeding while incarcerated, without any assessment, impression or diagnosis made. These records are not cumulative or redundant of the evidence previously of record. In addition, they are material because they are evidence of prior treatment for rectal prolapse and raise a reasonable possibility of substantiating the claim. The evidence received after the April 1997 Board decision includes the Veteran's competent assertions that this has been a chronic condition since service, and treatment records during his incarceration, which reflect numerous complaints related to the skin on his feet and treatment for tinea pedis/athletes foot. These records are not cumulative or redundant of the evidence previously of record. They are material because they are evidence of a chronic disorder and raise a reasonable possibility of substantiating the claim. Having found that new and material evidence has been presented, reopening of the claims for entitlement to service connection for rectal prolapse and a skin disorder of the feet, claimed as jungle rot, is in order. For the reasons discussed below, additional development of the evidence is needed before the reopened claims are decided. Earlier Effective Date and Service Connection Claims Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the effective date claims and the claim for service connection for the Veteran's son's abnormal feet, the pertinent facts are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claims, and no further action is required to comply with the VCAA or the implementing regulation. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). With respect to the claim for service connection for peripheral neuropathy, the record reflects that all required notice was provided in a June 2008 letter, prior to the initial adjudication of the claim. The record also reflects that the Veteran's service, VA and private treatment records, to include a voluminous amount of records from his places of incarceration, have been associated with the claims folders. Neither the Veteran nor his representative has identified any outstanding records that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board acknowledges that no medical examination was provided and no medical opinion was obtained in response to the claim for service connection for peripheral neuropathy of the lower extremities. It finds, however, that no examination or opinion is needed because there is no indication in the extensive medical evidence of record that the Veteran has ever had peripheral neuropathy and the Veteran's own statements indicating that he has such a disorder is not competent evidence of such the claimed disorder. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Earlier effective date claims The Veteran filed an original claim seeking entitlement to service connection for PTSD that was received by the RO on June 18, 1993. See VA Form 21-4138. Service connection for PTSD, effective June 18, 1993, was ultimately granted in a March 2010 rating decision. The Veteran filed an original claim seeking entitlement to service connection for bilateral hearing loss that was received by the RO on May 18, 1994. See VA Form 21-4138. Service connection for bilateral hearing loss, effective May 18, 1994, was granted in an October 1997 rating decision. The Veteran contends that he is entitled to an effective date earlier than June 18, 1993, for service connection for PTSD because he has had PTSD since February 1993. See November 2011 VA Form 21-4138. He has not provided any specific arguments as to why he is entitled to an effective date earlier than May 18, 1994, for the grant of service connection for bilateral hearing loss. See January 1998 VA Form 9. Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later, if the claim was received more than one year following the veteran's discharge from service. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2012). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). There is no indication that the Veteran submitted a claim, formal or informal, prior to the date of receipt of his VA Forms 21-4138 on June 18, 1993, and May 18, 1994. See 38 C.F.R. §§ 3.151, 3.155 (2012). No correspondence was received from the Veteran during this time period that indicated an intent to apply for service connection for PTSD and/or bilateral hearing loss, and the Veteran does not contend otherwise. Therefore, the currently assigned effective dates are the earliest possible effective dates under the applicable legal criteria. Service connection Claims Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). A presumption of service connection exists if a Veteran is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents, to include acute and subacute peripheral neuropathy. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the regulations governing presumptive service connection based on herbicide exposure, a Veteran may also establish service connection with proof of actual direct causation. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran seeks service connection for peripheral neuropathy of the lower extremities, which he contends is the result of his exposure to Agent Orange. See June 2008 VA Form 21-4138 and statement in support of claim; August 2008 NOD. Because he had service in the Republic of Vietnam from November 1967 to November 1968, his exposure to herbicides is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran's service treatment records are devoid of reference to complaint of, or treatment for, peripheral neuropathy of the lower extremities. The post service evidence of record, which includes a voluminous amount of records from several VA facilities and facilities where the Veteran has previously been incarcerated, is also devoid of reference to complaint of, or treatment for, peripheral neuropathy of the lower extremities. The Board acknowledges the Veteran's assertions that he has peripheral neuropathy of the lower extremities as a result of his presumed exposure to herbicide agents. However, he is not competent to report a diagnosis of peripheral neuropathy as it is not a disability that is capable of direct observation, such as a separated shoulder, varicose veins, and flat feet. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). Given the foregoing, and in the absence of any probative evidence that the Veteran has ever had peripheral neuropathy of the lower extremities, service connection is not warranted on either a direct or presumptive basis and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran also seeks entitlement to service connection for his son's alleged abnormal feet. The crux of his claim is that his (the Veteran's) exposure to herbicides resulted in his son being born with abnormally large feet. The Veteran reports that his son's foot size is an eleven and one half, whereas the Veteran's foot size is a ten and his son's mother's foot size is an eight. See VA Form 21-4138 and statement in support of claim received June 2008. The Board acknowledges that the Veteran's exposure to herbicides is presumed. It also acknowledges that there are certain benefits payable to the child (but not to the Veteran directly) of Vietnam Veterans for certain enumerated conditions and/or birth defects. See 38 C.F.R. §§ 3.814, 3.815. In this case, however, there is no legal basis on which the Veteran's claim can be granted. As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to an effective date prior to June 18, 1993, for the grant of service connection for PTSD is denied. Entitlement to an effective date prior to May 18, 1994, for the grant of service connection for bilateral hearing loss is denied. The Board having determined that new and material evidence has been received, reopening of the claim for service connection for rectal prolapse is granted. The Board having determined that new and material evidence has been received, reopening of the claim for service connection for skin disorder of the feet, claimed as jungle rot, is granted. Service connection for peripheral neuropathy of the lower extremities, claimed as due to herbicide exposure, is denied. Service connection for the Veteran's son's abnormal feet, claimed as due to herbicide exposure, is denied. REMAND Additional development is needed before the Board can adjudicate any of the remaining claims. The reopened claim for service connection for rectal prolapse has not been adjudicated by the AOJ in the first instance. Consequently, due process mandates that this matter be remanded. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Hickson v. Shinseki, 23 Vet. App. 394 (2010). The reopened claim for service connection for a skin disability of the feet, claimed as jungle rot, and the claims for service connection for acne, a vision problem, and gastritis, must be remanded in order to schedule appropriate VA examinations. This is important given the in-service complaints related to the Veteran's gastrointestinal symptoms and his assertions that it is related to service or secondary to his service-connected hepatitis C and B; the Veteran's assertions related to his feet, namely that he has had problems with a skin condition since service in Vietnam, and the post-service medical evidence of record that reveals continued complaints of, and treatment for, a fungal infection of his feet/tinea pedis/athletes foot; the Veteran's assertion that he has acne as a result of his presumed exposure to herbicides and a December 1993 diagnosis of acne; and the Veteran's assertion that he has a problem with his vision as a result of his presumed exposure to herbicides and the post-service medical evidence of record that reveals treatment for several problems, to include cataracts and decreased visual acuity. See VA and private treatment records; 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 81. The claim for service connection for hemorrhoids must also be remanded for a new VA examination. The Veteran contends that hemorrhoids are the result of an in-service rape while he was stationed in Vietnam and that he noticed lumps on his anus/hemorrhoids beginning in 1970. See June 2005 statement to representative; VA Form 21-4142 received June 2005. The opinion provided during a July 1997 VA rectum and anus examination was determined to be inadequate, see Joint Motion, and the claim was remanded by the Board in May 2009 for another examination. The report of the January 2010 VA rectum and anus examination is also not adequate. This is so because the VA examiner based the opinion provided regarding the etiology of the Veteran's hemorrhoids solely on the absence of evidence that an in-service rape occurred. The Veteran is competent to report that a rape occurred and a new opinion should be obtained on this matter. The Veteran's claim for an initial increased rating for hepatitis C and B must also be remanded for a new VA examination. This is important because the October 2010 VA examination report indicates that there was no active disease, but a May 2011 VA treatment record contains an assessment of "positive hep B." The Board also notes that the diagnostic criteria used to evaluate the service-connected hepatitis C and B were amended shortly after the claim was filed and the November 2003 rating decision that granted service connection effective January 11, 2001 failed to consider the criteria in effect prior to July 2, 2001. This must be rectified, on remand. Regarding the issue of entitlement to a TDIU, send the Veteran a letter that complies with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). An appropriate VA examination should also be scheduled. Lastly, recent VA treatment records should be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing 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). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Provide the Veteran appropriate notice regarding his claim for a TDIU. 2. Obtain the Veteran's treatment records from the Central Texas VA Health Care System, dated since June 2011. 3. Afford the Veteran for a VA examination by a physician with sufficient expertise to determine the nature and etiology of his claimed skin disorders. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be conducted and the examiner should review the results of any testing prior to completion of the report The examiner must identify all current skin disorders (with specific discussion as to whether the Veteran currently has acne) that have been present during the period of the claims and should provide an opinion with respect to each such disorder as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the disorder had its onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's presumed exposure to herbicides. The examiner must also specifically address the Veteran's report of continuous problems with a skin disorder of the feet, claimed as jungle rot. The examiner must provide a comprehensive report, including complete rationale for all opinions and conclusions reached. 4. Afford the Veteran an examination by an ophthalmologist to determine the nature and etiology of all eye disorders that have been present during the period of the claim. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be conducted and the examiner should review the results of any testing prior to completion of the report The examiner must identify all eye disorders that have been present during the period of the claim and should provide an opinion with respect to each such disorder as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the disorder had its onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's presumed exposure to herbicides. With respect to each such disorder that the examiner determines is not related to the Veteran's active service, the examiner should provide an opinion as to whether it is it at least as likely as not (i.e., probability of 50 percent or greater) that the disorder was permanently worsened by the Veteran's service-connected hepatitis C and B. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of impairment (i.e., a baseline) before the onset of the aggravation. The examiner must provide a comprehensive report, including complete rationale for all opinions and conclusions reached. 5. Afford the Veteran a VA examination by a physician with sufficient expertise to determine the etiology of the Veteran's claimed gastrointestinal disorder. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be conducted and the examiner should review the results of any testing prior to completion of the report The examiner should identify all gastrointestinal disorders that have been present during the period of the claim. With respect to each such disorder the examiner should respond to the following: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the disorder had its onset during active service or is related to any in-service disease, event, or injury? (b) If the answer to (a) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the disorder was caused or permanently worsened by the Veteran's service-connected hepatitis C and B caused? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of left ankle impairment (i.e., a baseline) before the onset of the aggravation. The examiner must provide a comprehensive report, including complete rationale for all opinions and conclusions reached. 6. Return the claims file and a copy of this remand to the VA examiner who conducted the January 2010 VA rectum and anus examination. Based on the review of the examination and claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the claimed in-service rape contributed in any way to the Veteran's post-service hemorrhoids. For the purpose of providing this opinion, the examiner should presume that an in-service rape did occur, despite the absence of any treatment records following the alleged rape. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. If the January 2010 VA examiner is not available, the claims files and any pertinent evidence in Virtual VA that is not contained in the claims files should be provided to another physician with sufficient expertise who should be requested to review the record and provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if determined necessary by the person providing the opinion. 7. Afford the Veteran an appropriate VA examination to determine the current severity of his hepatitis C and B. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be conducted and the examiner should review the results of any testing prior to completion of the report. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. The examiner is specifically asked to address whether the Veteran's hepatitis C and B is active. 8. Afford the Veteran an appropriate VA examination to determine the impact of all of his service-connected disabilities on his employability. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner must state an opinion as to whether the Veteran's service-connected disabilities (PTSD; left thumb scar with degenerative changes; tinnitus; hepatitis C and B; and bilateral hearing loss) are sufficient by themselves to render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 9. Undertake any other indicated development. 10. Finally, readjudicate the claims, to include the reopened claim for service connection for rectal prolapse and adjudication of the claim for increased initial ratings for hepatitis C and B with consideration of the diagnostic criteria in effect under 38 C.F.R. § 4.114 prior to July 2, 2001. If any benefit sought on appeal is not granted to the Veteran's satisfaction, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate action, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs