Citation Nr: 1304337	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  07-07 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for paresthesias of the right lower extremity, to include as secondary to recurrent infections, a bilateral hip disorder, and/or a lumbar spine disorder.

2.  Entitlement to service connection for Meniere's syndrome. 

3.  Entitlement to service connection for an inflammatory disorder, to include as due to Agent Orange exposure. 

4.  Entitlement to service connection for recurrent infections, to include as due to Agent Orange exposure.

5.  Entitlement to service connection for idiopathic thrombocytopenic purpura (ITP), to include as due to Agent Orange exposure

6.  Entitlement to service connection for hypertension, to include as secondary to ITP, and/or as due to Agent Orange exposure. 

7.  Entitlement to service connection for otalgia, to include as secondary to bilateral hearing loss and/or service-connected tinnitus.  

8.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a gastrointestinal disorder, to include colitis and rectal bleeding.

9.  Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, a claim of entitlement to service connection for bilateral hearing loss.  

10.  Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, a claim of entitlement to service connection for a lumbar spine disorder. 

11.  Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, a claim of entitlement to service connection for a bilateral hip disorder. 

12.  Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, a claim of entitlement to service connection for a right hip scar. 

13.  Entitlement to an increased evaluation for service-connected tinnitus, currently evaluated as 10 percent disabling. 

14.  Entitlement to an initial evaluation in excess of 10 percent for service-connected tinea crura/eczema, and an evaluation in excess of 60 percent on and after May 8, 2006. 

15.  Entitlement to an effective date prior to January 12, 2004 for a grant of service connection for tinnitus. 

16.  Entitlement to an effective date prior to January 12, 2004 for a grant of service connection for a skin disability. 

REPRESENTATION

Appellant represented by:  Texas Veterans Commission

ATTORNEY FOR THE BOARD
K. Millikan, Counsel
INTRODUCTION

The Veteran served on active military duty from April 1966 to February 1970.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).

The issues of whether there was clear and unmistakable error (CUE) in the June 1970 denial of service connection for a skin disorder and in an earlier denial of service connection for tinnitus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The Board notes that the issue of entitlement to service connection for rectal bleeding has been recharacterized as a petition to reopen a claim for entitlement to service connection for a gastrointestinal disorder, to include rectal bleeding and colitis.  The Veteran filed a claim for entitlement to service connection for rectal bleeding.  A claim for service connection for a disability encompasses all relevant symptomatology, regardless of how that symptomatology is diagnosed.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  This is because a claimant generally is not competent to diagnose his or her specific condition where such a diagnosis requires medical expertise; he is only competent to identify and explain the symptoms that he observes and experiences.  Clemons, 23 Vet. App. at 4-5.  Post-service discharge medical records contain complaints and diagnoses of rectal bleeding and colitis.  Thus the issue is more properly characterized as a claim for a gastrointestinal disorder.  Additionally, as more fully addressed in the remand section, the issue is a claim to reopen and not a service connection claim.  

The issue of a petition to reopen a claim for entitlement to service connection for depressive disorder was raised in a March 2008 submission, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 

The issues of entitlement to service connection for ITP, bilateral hearing loss, a lumbar spine disorder, a bilateral hip disorder, a right hip scar, otalgia, and recurrent infections, and a petition to reopen a claim for entitlement to service connection for a gastrointestinal disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  There is no current diagnosis of Meniere's syndrome/vertigo, paresthesias of the right lower extremity, an inflammatory disorder, or hypertension.

2.  Service connection for bilateral hearing loss, a bilateral hip disorder, low back pain, and a right hip scar was denied by an unappealed November 2004 rating decision.

3.  In 2012, additional relevant service treatment records (STRs) referencing in-service back pain, hearing difficulties, joint pain, arthritis, and skin disease were obtained by the RO; these records existed at the time of the November 2004 rating decision denying the Veteran's original claims, and the RO's failure to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information.

4.  In a November 2004 rating decision, the RO granted service connection for tinnitus and tinea crura/eczema, and assigned effective dates of January 12, 2004.  

5.  The Veteran did not appeal either effective date assigned in the November 2004 rating decision.  The Veteran did not submit new and material evidence within one year of the rating decision that addressed the issue of the assigned effective dates.

6.  In March 2008, the Veteran submitted a statement indicating that he disputed the effective dates assigned to his grant of service connection for tinnitus and for his tinea crura/eczema. 

7.  The Veteran is receiving the maximum schedular evaluation for bilateral tinnitus, the diagnostic criteria adequately describe the severity and symptomatology of his tinnitus, and neither hospitalization nor marked interefence with employment due to tinnitus has been shown.  

8.  Prior to May 8, 2006, the Veteran's service connected tinea crura/eczema is manifested by involvement of the hands, feet, groin, and trunk with less than 20 percent of the entire body or exposed areas affected and without systemic therapy of corticosteroids or immunosuppressive drugs, the diagnostic criteria adequately describe the severity and symptomatology of his skin disorder, and neither hospitalization nor marked interference with employment due to the skin disorder has been shown.  

9.  On and after May 8, 2006, the Veteran's service connected tinea crura/eczema is manifested by involvement of the hands, feet, groin, and trunk without systemic manifestations or near-constant or constant systemic therapy, the diagnostic criteria adequately describe the severity and symptomatology of his skin disorder, and neither hospitalization nor marked interference with employment due to the skin disorder has been shown.  



CONCLUSIONS OF LAW

1.  Paresthesias of the right lower extremity was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

2.  Meniere's syndrome and/or vertigo was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

3.  An inflammatory disorder was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

4.  Hypertension was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

5.  The criteria to reconsider the Veteran's claims for entitlement to service connection for bilateral hearing loss, a low back disorder, a bilateral hip disorder, and a right hip scar have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012).

6.  The claim of entitlement to an effective date prior to January 12, 2004 for the grant of service connection for tinnitus is dismissed.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 

7.  The claim of entitlement to an effective date prior to January 12, 2004 for the grant of service connection for tinea crura/eczema is dismissed.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 

8.  There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus; the criteria for entitlement to an extraschedular evaluation have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012); Smith v. Nicholson, 451 F.3d. 1344, 1350 (Fed. Cir. 2006). 

9.  Prior to May 8, 2006, the criteria for an initial evaluation in excess of 10 percent for service-connected tinea crura/eczema have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.118, Diagnostic Code 7813-7806 (2012).

10.  On and after May 8, 2006, the criteria for an initial evaluation in excess of 60 percent for service-connected tinea crura/eczema have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.118, Diagnostic Code 7813-7806 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminarily, the Board notes that some of the Veteran's claims are unclear.  In particular, it is not clear what kind of recurrent infections and/or inflammatory disorders the Veteran claims.  Additionally, his claims regarding the presence of CUE in several different RO decision are not well-defined.  In August 2008, an RO employee contacted the Veteran to clarify some of these issues.  In a report of contact, it was noted that the Veteran's response to the clarification requests were that his statements of record were already clear and that he did not understand why VA was requesting clarification.  No further clarification or assistance was provided.  The Board notes that "the duty to assist is not always a one-way street", but that it attempted to assess the scope of the claims and arguments by construing the statements of record in the light most favorable to the Veteran.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 

VA's Duties to Notify and Assist

With respect to the claims for entitlement to earlier effective dates for the grants of service connection for tinnitus and tinea crura/eczema, VA's statutory and regulatory duties to notify and assist the Veteran under the Veterans Claims Assistance Act (VCAA) are not applicable; this is because resolution of the claims is as a matter of law.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no effect on appeal limited to matter of law); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (noting that the VCAA is not applicable where law is dispositive); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 

With respect to the petitions to reopen claims for entitlement to service connection for bilateral hearing loss, a lumbar spine disorder, a bilateral hip disorder, and a right hip scar, because the claims are reconsidered and remanded for further development, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.159.

With respect to the claims for entitlement to service connection for Meniere's syndrome/vertigo, right leg paresthesias, inflammatory disorder, and hypertension, an increased evaluation for service-connected tinnitus and increased initial evaluations for tinea crura/eczema, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  VCAA notice requirements apply to all five elements of a service connection claim, including:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  For increased rating claims, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009).

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, VA's duty to notify has been satisfied.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b).   Regarding the claims for service connection, letters that provided the required notice were sent in December and August 2008, prior to the initial adjudication of the claims in a March 2009 rating decision.  Regarding the claim for an increased evaluation for tinnitus, a February 2008 letter that contained the required content of notice was sent to the Veteran prior to initial adjudication of the claim in a March 2009 rating decision.  Regarding the claim for an increased initial evaluation for tinea crura/eczema, "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled."  Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required).  Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  The Veteran has made no such assertions here.  Accordingly, VA's duty to notify has been satisfied.  

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records (STRs), VA medical records both paper and electronic via Virtual VA system, and identified private medical records were obtained and reviewed.  Regarding Meniere's disease, paresthesias of the right lower extremity, an inflammatory disorder, and hypertension, VA did not provide the Veteran with medical examinations; the Board finds that none were required.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains:  (1) competent lay or medical evidence of disability or recurrent or persistent symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).  Here, as will be discussed further below, the evidence of record does not support a diagnosis of, or persistent or recurrent symptoms of, Meniere's disease, paresthesias of the right lower extremity, an inflammatory disorder, or hypertension.  

Regarding the claims for increased evaluations for tinea crura/eczema and tinnitus, VA provided the Veteran with adequate medical examinations in September 2004 and September 2005.  The examinations are adequate as they contained a full history from the Veteran regarding the skin condition and tinnitus and physical examinations relevant to the applicable rating criteria.  Although the 2005 examination was not conducted upon a review of the claims file, the examiner reviewed the relevant medical records.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion).  The Veteran was scheduled for an examination in 2008 for his tinea crura/eczema but failed to appear.  The Veteran has not alleged good cause for that failure to appear and the notification appears to have been sent to the correct address.  See 38 C.F.R. § 3.655 (2012) (noting that where there is failure to appear without good cause, the claim shall be denied or rated based on the evidence of record.). 

There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

Claims for service connection

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may 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).  

Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 496 (1997).  A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  Layno v. Brown, 6 Vet. App. 465, 469 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Additionally, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(b).  

The Board finds that the evidence of record does not support a finding of service connection for Meniere's disease, right lower extremity paresthesias, hypertension, or an inflammatory disorder because the evidence does not demonstrate a current disability for any of these claims.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997).  There is a current disability for VA purposes when a claimant has a disability at the time a claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Regarding Meniere's disease, the VA and private medical records associated with the claims file do not contain any diagnoses of Meniere's disease.  Although a January 2000 private medical record noted the symptom of vertigo, Meniere's disease was not assessed.  Additionally, that record contains the sole notation of record regarding vertigo; no mention of vertigo or Meniere's has been made since 2008 when the Veteran filed his claim for service connection for this disorder.  See McClain, 21 Vet. App. at 321; Degmetich, 104 F.3d at 1333.  Thus, the medical evidence of record does not indicate a current disability.

To the extent that the Veteran's allegation of entitlement to service connection is a statement that he has a current diagnosis of Meniere's disease, he is not competent to provide such a diagnosis.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that lay evidence may not be categorically dismissed as not competent regarding questions of medical etiology); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge).  This is because Meniere's disorder is a complex inner ear disorder that requires medical expertise to diagnose, unlike disorders such as flat feet, varicose veins, and ringing in the ears which are capable of lay observation.  See Barr, 21 Vet. App. at 310; Charles, 16 Vet. App. at 374; Falzone, 8 Vet. App. at 405.  Accordingly, as the lay and medical evidence of record indicate that there is no current disability; service connection for Meniere's disease is not warranted.

Regarding paresthesias, there are no complaints of right leg paresthesias or relevant diagnoses since the Veteran filed his claim for service connection in 2008.  See McClain, 21 Vet. App. at 321; Degmetich, 104 F.3d at 1333.  In a January 1987 private record, the Veteran reported leg pain.  The assessment was lumbar pain.  In a July 1996 private record, there was right leg swelling.  In October 2003 private records, there was right leg pain.  The assessment was paresthesias of the right lower extremity.  In March and April 2005 private records, there were complaints of sciatica.  First, each of these notations occurred prior to 2008.  Second, much of the evidence of record, including a 2003 private record, notes the Veteran's complaints of radiation of pain to the right lower extremity, but assess low back pain with radiculopathy.  The issue of entitlement to service connection for a lumbar spine disorder remains on appeal and is being remanded for an examination; to the extent that there is any right lower extremity involvement, it will be addressed therein.  Accordingly, the medical evidence of record does not demonstrate any current diagnosis of paresthesias.  

Additionally, the Veteran's lay testimony does not indicate any paresthesias during the relevant time period; he makes no assertion that he currently experiences paresthesias, or has experienced it since 2008.  See Davidson, 581 F.3d at 1316; Washington, 19 Vet. App. at 368.  Accordingly, as the lay and medical evidence of record indicate that there is no current disability, service connection cannot be granted.  Accordingly, service connection for right lower extremity paresthesias is not warranted.

Regarding an inflammatory disorder, there is no current disability.  As noted above, the precise nature of the Veteran's claim is not clear.  In June 2010 and June 2012 statements, he notes that his diagnosed ITP contributes to the inflammation.  In a January 2008 statement, he appears to assert that his inflammatory disabilities include those of the joints, cartilage, prostate, and blood vessels.  But a review of the claims file does not demonstrate a diagnosis of an inflammatory disorder.  There are no medical diagnoses of inflammatory disorders.  As noted above, the Veteran has declined to provide further guidance to VA.  To the extent that the Veteran's allegation of entitlement to service connection is a statement that he has a current inflammatory disorder, he is not competent to provide such a diagnosis.  See Davidson, 581 F.3d at 1316; Washington, 19 Vet. App. at 368.  This is because a determination that an inflammatory disorder exists is a complex determination that requires medical expertise, unlike disorders such as flat feet, varicose veins, and ringing in the ears which are capable of lay observation.  See Barr, 21 Vet. App. at 310; Charles, 16 Vet. App. at 374; Falzone, 8 Vet. App. at 405.  Accordingly, as the lay and medical evidence of record indicate that there is no current disability; service connection for an inflammatory disorder is not warranted.

Regarding hypertension, there is no current disability because there is no diagnosis.  Hypertension for VA purposes is where the diastolic blood pressure is predominantly 90mm. or greater, or the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnostic Code 7007 Note (1) (2012) (emphasis added).  April and May 2006 private records noted increased blood pressure.  Blood pressure readings from 1995 through 2007 include 110/70, 130/80, 132/80, 132/68, 132/55, 130/78, 140/80, 155/82, 158/86, and 161/100.  From the readings of record, the diastolic blood pressure is not predominantly 90 mm or greater, most of the readings are below 90.  Regarding the systolic pressure, the readings are not predominantly 160 mm and over; only one reading was at least 160 mm.  Accordingly, the medical evidence of record does not show a diagnosis of hypertension, or readings that indicate hypertension.   Degmetich, 104 F.3d at 1333.  

To the extent that the Veteran's request for service connection indicates a statement that he has current hypertension, this is not a diagnosis that is capable of lay observation as it requires a test and analysis of blood pressure readings, in contrast to diagnoses of tinnitus, flat feet, and varicose veins which are capable of lay observation.  See Davidson, 581 F.3d at 1316; Washington, 19 Vet. App. at 368; see also Barr, 21 Vet. App. at 310; Charles, 16 Vet. App. at 374; Falzone, 8 Vet. App. at 405.  Accordingly, as the lay and medical evidence of record indicate that there is no current disability; service connection for hypertension is not warranted.

In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Claims to reopen

The Veteran requests to reopen claims for entitlement to service connection for bilateral hearing loss, a low back disorder, a bilateral hip disorder, and a right hip scar.  In a November 2004 rating decision, the RO denied service connection for the above-noted claims because, respectively, there was no hearing loss for VA purposes and a negative medical opinion was of record, there were negative opinions of record regarding the bilateral hip disorder and low back disorder, and although an opinion related the right hip scar to an in-service injury, the RO found that this was based on a misunderstanding of the facts of the in-service injury.  The Veteran did not appeal that decision; on that basis the decision is final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103 (2012).  

Although a decision is final, a claim will be reopened if new and material evidence is presented.  38 U.S.C.A. § 5108.  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.  "New" evidence means existing evidence not previously submitted to VA.  "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.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).

Where, however, new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period and the decision is not final.  38 C.F.R. § 3.156(b).  Additionally, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim.  38 C.F.R. § 3.156(c) (2012).  Such records include, but are not limited to:  (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.  38 C.F.R. § 3.156(c).  This does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.  38 C.F.R. § 3.156(c)(2).

If new and material evidence is presented, the Board shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108.  But if the RO did not reopen the claim and consider it on a direct basis, then the Board may not consider the claim on the merits unless the Veteran has waived RO consideration or the Veteran would not be prejudiced by such consideration.  Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that generally the Board should return a reopened claim to the RO for initial consideration, but may consider the merits of the claim where the Veteran submits a waiver or would not be prejudiced by such adjudication).

Here, no new and material evidence was received within a year of the 2004 decision regarding the hearing loss, low back disorder, bilateral hip disorder, or a right hip scar.  Medical records were submitted within a year, but the records were not material because the presence of current disabilities was not at issue.  See 38 C.F.R. § 3.156(b).  Additional STRs, however, that were not previously associated with the claims file, were associated with the claims file in 2012.  Those STRs included the Veteran's 1970 report of medical history (RMH), which noted the presence of back pain since 1966, frequent trouble hearing and earaches, hearing loss, swollen or painful joints, arthritis, and a skin condition.  These notations are directly relevant to the issues on appeal and were in existence in 2004.  Accordingly, the 2004 decision is not final and the claims are reconsidered.  

Because the RO did not reopen or reconsider the claims and consider them on a direct basis, and the Veteran has not waived RO consideration, the Board finds that the claims should be remanded to avoid prejudice to the Veteran.  Hickson, 23 Vet. App. at, 399-400.

Claims for increased evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

"The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."  Hart, 21 Vet. App. at 509.  The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed.  Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). 

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2012).  However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Furthermore, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

	Tinnitus 

In a November 2004 rating decision, the RO granted service connection for bilateral tinnitus, and assigned a 10 percent disability rating.  38 C.F.R. § 4.87, Diagnostic Code 6260 (2012).  In January 2008, the Veteran filed a claim for an increased evaluation.  By a March 2009 rating decision, the RO denied the claim, and the Veteran appealed. 

The maximum evaluation that the diagnostic code provides for unilateral or bilateral tinnitus is 10 percent.  See 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F. 3d 1344 (Fed. Cir. 2006) (approving VA's interpretation of its own regulation which limited a veteran to a single disability rating for tinnitus, unilateral or bilateral).  As such, a higher schedular rating cannot be granted. 

Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.  

In this regard, the schedular evaluation is not inadequate.  The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's tinnitus, as the criteria assess ringing in the bilateral ears.  Moreover, the evidence does not demonstrate other related factors, including an exceptional or unusual disability picture.  The Veteran has not required frequent hospitalization due to service-connected tinnitus and marked interference of employment has not been shown due to this disorder.  Accordingly, this issue need not be referred for consideration of an extraschedular rating.

      
Tinea crura/eczema

The Veteran's service-connected tinea crura/eczema of the hands, feet, and groin is assigned a 10 percent evaluation prior to May 8, 2006, and 60 percent evaluation on and after May 8, 2006.  See 38 C.F.R. § 4.118, Diagnostic Code 7813-7806.  The hyphenated code used for rating the disability indicates that the disability includes both dermatophytosis, Diagnostic Code 7813, and dermatitis/eczema, under Diagnostic Code 7806.  The specific order of the diagnostic codes indicates that the skin disability is rated on the basis of dermatitis/eczema.  See 38 C.F.R. § 4.27 (2012). 

The criteria used to evaluate disabilities involving the skin were revised effective October 23, 2008.  See Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54,710 (Sept. 23, 2008).  These revisions apply to the criteria used to rate scars.  As indicated further below, there are no scars related to the Veteran's skin condition.  Accordingly, although the old and new criteria are technically considered herein, the applicable diagnostic criteria are identical.  Compare 38 C.F.R. § 4.118, Diagnostic Codes 7806-7833 (2007) with 38 C.F.R. § 4.118, Diagnostic Codes 7806-7833 (2012).  

      10 percent evaluation from January 12, 2004 to May 8, 2006

For this time period, the Veteran's skin condition is evaluated as 10 percent disabling, which reflects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806.  

A September 2004 VA examination was conducted upon a review of the claims file.  The Veteran reported that the rash comes and goes but was ongoing.  The rash on his groin and hands itches at first, then burns, then dries up and peels.  He also reported dryness of the feet with cracking on his feet soles.  Upon examination, the right hand medial hypothenar area contained a dry, cracking lesion that was 3 centimeters by 4 centimeters in diameter.  The groin was 90 percent hyperpigmented with macula lesions on both sides.  His feet were dry with cracking skin on the bottom of the feet.  The diagnoses were chronic tinea crura, eczema of 15 percent of the right hand, which was 1/10th percent of the entire body surface, and hidrotic eczema of the feet, which covered 5 percent of the feet area and 1/10th percent of the total body surface.  The skin condition was ongoing and chronic, improved at times, but never cleared completely.  

In a February 2005 statement, the Veteran reported exudation and constant itching.  He also reported open bleeding in certain areas.  In an April 2005 private medical record, there was eczema of the bilateral hand ulnar surfaces, wrists, left elbow, left axilla, and the bilateral groin.  On the bilateral feet, there was scaling, silvery, pruritic erythema, with tenderness to palpation that ranged from mild to moderate.  The size was 12 centimeters of the ulnar surfaces, 6 centimeters on the left elbow, 6 centimeters of the left axilla, 12 centimeters of the bilateral groin, and 12 centimeters of the bilateral feet, that was severe, cracking, and bleeding.  The diagnosis was moderate to severe eczema.  

A September 2005 VA examination was conducted upon a review of the Veteran's medical records, but no claims file.  The Veteran reported that he treated his condition over the years with topical creams which only resulted in temporary relief.  The examiner noted that the Veteran had not received intensive light therapy or any immunosuppressive therapy, and that over the last year; he had only used Eucerin as an emollient and no steroid cream.  There were no side effects from the treatment, and his local symptoms were itching, scratching, and cracking of the skin, especially the feet, followed by bleeding.  There were no malignant or benign neoplasms of the skin, urticaria, cutaneous vasculitis, or erythema multiforme.  The examiner also noted that the hypothenar eminence and the ulnar surface of the right hand showed a lichenified lesion approximately 5 centimeters by 2 centimeters with fissures.  The palms of both hands showed scattered intrapithelial vesicles compatible with a dyshidrotic eczema that involved 5 percent of the exposed areas and .5 percent of the total body surface area.  The plantar surfaces of both feet were dry, but there were plantar fissures on the heels and proximal plantar surfaces of both feet.  This was related to dryness of the skin and involved 7 percent of the total body surface area.  Both groins showed dryness with hyperpigmentation and some desquamatization of the skin.  The hyperpigmentation indicates that this is a chronic condition compatible with tinea cruris involving 5 percent of the total body surface area.  There was no scarring or disfigurement from the above skin lesions, or acne, chloracne, scarring alopecia, alopecia areata, or hyperhidrosis.  The diagnoses were dyshidrotic eczema involving both hands, no lesions on the wrists, elbows, or axillae at the time of examination, plantar hyperkeratosis and plantar fissures of the bilateral soles of the feet, and tinea cruris with residual hyperpigmentation, but no active skin rashes at the time of the examination.  The examiner determined that the skin condition did not interfere with the Veteran's activities of daily living.  

For dermatitis or eczema, a 30 percent evaluation is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, and a maximum 60 percent evaluation is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806.  The VA examiners noted significantly less involvement of skin area than is required for an increased evaluation:  the 2004 examiner found involvement of 2/10% of total body surface and the 2005 examiner found involvement of 12.5% of total body surface area.  In addition, the VA examiners found no use of steroid creams and no immunosuppressive drugs.  Accordingly, an increased evaluation is not warranted.

The Board has considered the application of other diagnostic codes.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  For exfoliative dermatitis or erythroderma, a 30 percent evaluation is assigned for any extent of involvement of the skin, and systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7817 (2007).  A 60 percent evaluation is assigned for generalized involvement of the skin without systemic manifestations, and constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy required during the past 12-month period; and a 100 percent evaluation is assigned for generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia), and constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7817 (2007).  Here, however, the evidence does not show treatment by systemic therapy such as corticosteroids, retinoids, PUVA, UVB, or electron beam therapy.  Thus, an increased evaluation on this basis is not warranted.

Additionally, the evidence shows there are no scars associated with tinea crura/eczema as the 2005 VA examiner noted there was no scarring.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2007).  Furthermore, the evidence does not show american leishmaniasis, old world leishmaniasis, discoid lupus, erythematosus or subacute cutaneous lupus erythematosus, tuberculosis luposa/lupus vulgaris, bullous disorders, benign or malignant skin neoplasms, other infections of the skin, cutaneous manifestations of collagen vascular disease not listed elsewhere, papulosquamous disorders not listed elsewhere, vitiligo, diseases of keratinization, urticaria, primary cutaneous vasculitis, erythema multiforme, acne, chloracne, scarring alopecia, alopecia areata, hyperhidrosis, or malignant melanoma.  See 38 C.F.R. § 4.118, Diagnostic Codes 7807-7811, 7815, 7818-7833 (2007). 

Furthermore, dermatophytosis is rated on disfigurement of the head, face, or neck, scars, or on dermatitis.  38 C.F.R. § 4.118, Diagnostic Code 7813 (2007).  As noted above, there are no scars associated with the skin disorder and the diagnostic code for dermatitis does not provide for an increased evaluation.  Moreover, psoriasis is rated under the same criteria that eczema is rated under; thus no increased evaluation on this basis is warranted.  See 38 C.F.R. § 4.118, Diagnostic Code 7816 (2007).  Alternative diagnostic codes, therefore, also do not provide for an increased evaluation for this time period.

      60 percent evaluation on and after May 8, 2006 

For this time period, the Veteran's skin condition is evaluated at 60 percent,  which contemplates more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2007); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012).

In a May 8, 2006 private record, the examiner noted that 75 percent of the bilateral lower extremities and bilateral upper extremities had skin cracks and were flaking and pruritic.  The diagnosis was eczema.  The Veteran was to use Eucerin or Aquaphor.  In a March 2007 letter, the Veteran's private physician stated that she had been treating him since March 2005.  She noted extensive exfoliating eczema.  Upon examination, there were intrapithelial vesicles, hyperkeratotic areas with fissures on the extensor joints and thenar and hypothenar eminences of the bilateral hands and feet.  The fissures appeared to have dried blood and the palms of the hands and soles of the feet had extensive exfoliation.  The heels were extremely hyperkeratotic, fissured, and tender to the touch.  Both legs from the ankles to the mid thigh were exfoliating.  The perineum, groin, and buttocks were red and exfoliating to the waistline.  The Veteran's arms had lichenified areas and both were extensively exfoliating.  The skin of his neck, anterior and posterior, appeared lichenified and exfoliating.  The physician noted that at least 75 percent of the Veteran's skin surface was involved with eczema at that time.  The fissures were painful, the rash was itchy, and the exfoliation was embarrassing.  The Veteran had been prescribed Eliden and steroid creams, which are both immunosuppressives.  The examiner noted that she had avoided systemic steroids because the rash flares after the steroids wear off.  

A 60 percent evaluation is the maximum evaluation permitted under the assigned diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2007); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012).  Accordingly, no increased evaluation is permitted.  

The Board has considered the application of other diagnostic codes.  See Schafrath, 1 Vet. App. 589.  For exfoliative dermatitis, or erythroderma, a 100 percent evaluation is assigned for generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia), and constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7817 (2007) (emphasis added); 38 C.F.R. § 4.118, Diagnostic Code 7817 (2012) (emphasis added).  Here, however, the evidence does not indicate systemic manifestations such as fever, weight loss, and hypoproteinemia.  Accordingly, an increased evaluation on this basis is not warranted.

Additionally, the evidence does not indicate that scars are associated with the skin condition.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2007); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2012).  Furthermore, there is no American leishmaniasis, old world leishmaniasis, discoid lupus, erythematosus or subacute cutaneous lupus erythematosus, tuberculosis luposa/lupus vulgaris, benign or malignant skin neoplasms, or other infections of the skin.  See 38 C.F.R. § 4.118, Diagnostic Codes 7807-7811, 7818-7820 (2007); 38 C.F.R. § 4.118, Diagnostic Codes 7807-7811, 7818-7820 (2012).  Dermatophytosis is rated on disfigurement of the head, face, or neck, scars, or dermatitis; there are no scars associated with the skin disorder and, as noted above, the diagnostic code for dermatitis does not provide for an increased evaluation.  See 38 C.F.R. § 4.118, Diagnostic Code 7813 (2007); 38 C.F.R. § 4.118, Diagnostic Code 7813 (2012).  Evaluations in excess of 60 percent are not provided for bullous disorders, psoriasis, cutaneous manifestations of collage vascular diseases not listed elsewhere, papulosqaumous disorders not listed elsewhere, vitiligo, diseases of keratinization, urticaria, primary cutanoeus vasculitis, erythema multiforme, acne, chloracne, scarring alopecia, alopecia areata, hyperhidrosis, or malignant melanoma. See 38 C.F.R. § 4.118, Diagnostic Codes 7815, 7816, 7821-7824 (2007); 38 C.F.R. § 4.118, Diagnostic Code 7815, 7816, 7821-7824 (2012).  Accordingly, an increased schedular evaluation under alternative diagnostic codes is not warranted.

Consideration has also been given regarding whether the schedular evaluations throughout the appeal period are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1); Barringer, 22 Vet. App. at 243-44.  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd, 9 Vet. App. at 94.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability.  Thun, 22 Vet. App. at 115.  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.  

In this regard, the schedular evaluations are not inadequate.  Ratings in excess of those assigned are provided for certain manifestations of the service-connected skin condition but the medical evidence reflect that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's skin condition, as the criteria assess the percentage of body affected, medications taken, other treatments, and systemic body effects.  Moreover, the evidence does not demonstrate other related factors such as frequent hospitalizations and marked interference of employment due to the skin condition.  Accordingly, this issue need not be referred for consideration of an extraschedular rating.


Earlier effective date claims

Regarding the claims for earlier effective dates for the grants of service connection for tinnitus and a skin disorder, the Board finds that the claims must be dismissed.  

Here, the Veteran filed a claim for service connection for a skin condition in May 1970.  The RO denied the claim in a June 1970 rating decision because no skin condition was noted on service discharge, despite treatment during service.  The Veteran submitted additional argument and lay statements in August 1970.  The RO issued a denial letter that same month.  Again in August 1970, the Veteran submitted an additional lay statement asserting that there was no record of his condition because the VA refused to treat him and that the skin condition had never gone away.  The RO issued another denial letter in April 1971.  In July 1982, the Veteran filed a claim for skin fungus.  In August 1982, the RO issued a confirmed rating decision noting that there was no new and material evidence.  No further correspondence or evidence regarding the skin disorders was submitted. 

In a document dated in August 2003 but apparently received in January 2004, the Veteran filed a claim for entitlement to tinnitus and/or ringing in the ears and a skin disorder.  This was the first claim for tinnitus.  In a November 2004 rating decision, the RO granted service connection for both and assigned effective dates of January 12, 2004.  The Veteran did not appeal that decision nor file new and material evidence within one year of the decision; the decision is thus final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2012).  In March 2008, the Veteran filed what the RO interpreted as claims for entitlement to earlier effective dates for the grant of service connection for tinnitus and for tinea crura/eczema.

After a rating decision that grants service connection and assigns an effective date is final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE).  Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006).  Free-standing earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality.  Rudd, 20 Vet. App. at 300.  Accordingly, where a free-standing earlier effective date claim is made, the claim must be dismissed.  Rudd, 20 Vet. App. at 300.

Here, the Veteran's claims for entitlement to earlier effective dates were filed after the relevant rating decision was final.  Although the Veteran has alleged CUE in a 1970 rating decision that denied service connection for tinnitus and a skin disorder, the Board notes that the 1970 rating decision did not address tinnitus; rather, the Veteran did not raise the issue of service connection for tinnitus until his 2004 claim.  The June 1970 rating decision did deny service connection for a skin disorder.  Regardless, neither issue has been adjudicated, and both are referred to the AMC as indicated above.  The claims on appeal are free-standing earlier effective date claims which the Board must dismiss.  See Rudd, 20 Vet. App. at 300; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law is dispositive of the claim, it must be denied due to lack of legal entitlement). 


ORDER

Service connection for Meniere's disease, paresthesias of the right lower extremity, an inflammatory disorder, and hypertension is denied.

Additional relevant STRs having been received, the claims for entitlement to service connection for bilateral hearing loss, a low back disorder, a bilateral hip disorder, and a right hip scar are reconsidered; the claims are granted to this extent only.

An increased evaluation for service-connected tinnitus is denied.

Increased initial evaluations for service-connected tinea crura/eczema are denied.

The claims for entitlement to effective dates prior to January 12, 2004 for the grants of service connection for tinnitus and a skin condition are dismissed.


REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.  

Regarding the petition to reopen a claim for entitlement to service connection for a gastrointestinal disorder, remand is required for VCAA notice.  For claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).  To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial.  Kent, 20 Vet. App. at 9-10.  In a November 2004 rating decision, the RO denied service connection for blood in the stool.  The Veteran did not appeal that rating decision or file new and material evidence within one year.  See 38 C.F.R. § 3.156(b).  In 2008, the Veteran filed a claim for service connection for rectal bleeding.  The RO treated the claim as an original claim for service connection and issued an August 2008 VCAA letter that provided the appropriate notice for an initial service connection claim.  The Veteran has not been notified that he must submit new and material evidence with regards to this claim and has not been provided notice of why his claim was denied in 2004.  This must be done prior to adjudication of the claim on a new and material basis.  Accordingly, remand is required.

Regarding the claim for service connection for ITP, remand is required as this issue is intertwined with the claim for service connection for a gastrointestinal disorder.  Claims may be intertwined and require remand where adjudication of one issue could have significant impact on the other issue.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Here, in a March 1998 private medical record, the examiner stated that the ITP diagnosis was probably based on the diagnosis of ulcerative colitis.  Accordingly, as that issue is remanded herein, the claim regarding ITP must also be remanded.
Regarding the claim for service connection for otalgia, remand is required for an examination and opinion.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The RO did not provide the Veteran with an examination.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86.  Additionally, claims may be intertwined and require remand where adjudication of one issue could have significant impact on the other issue.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Here, otalgia was diagnosed in a December 2007 VA medical record.  It was noted that the etiology was uncertain in nature, but was likely Eustachian tube or resolved otitis media.  A March 1967 STR assessed external otitis.  The Veteran's service discharge RMH indicated complaints of chronic earaches, but the service discharge examination noted normal ears, nose, and throat.  An April 2005 private record noted otitis media.  The Veteran alleges that his otalgia is due to service, or caused or aggravated by bilateral hearing loss and/or tinnitus.  Tinnitus is a service-connected condition.  There is, therefore, a current disability, evidence of earaches during service, lay evidence of a connection between the diagnosed otalgia and a service-connected disability, and a non-certain etiology opinion.  Additionally, the issue is intertwined with the issue of entitlement to service connection for bilateral hearing loss, which is also being remanded.  It is intertwined as a grant of service connection for hearing loss provides the Veteran another basis upon which to base service connection for otalgia.  Accordingly, remand is required for an examination.

Regarding the claim for entitlement to service connection for bilateral hearing loss, remand is required for an examination.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).  Generally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  Here, the Veteran alleges his hearing loss is due to service and/or to service-connected tinnitus.  Although a 2004 VA examination indicated there was no hearing loss for VA purposes, private records in 2007 and 2008 noted severe bilateral sensorineural hearing loss.  Thus the 2004 VA examination is no longer adequate.  Furthermore, a review of the STRs indicates that the service discharge examination noted the Veteran reported difficulty hearing and service entrance and discharge examinations appear to indicate a shift in hearing thresholds.  See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993).  This was not fully addressed.  Finally, the opinion did not address whether the hearing loss was caused or aggravated by service-connected tinnitus.  Accordingly, an examination and etiological opinion is required.   

Regarding the claims for entitlement to service connection for a lumbar spine disorder, a bilateral hip disorder, and a right hip scar, remand is required for an examination.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr, 21 Vet. App. at 311.  A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion.  Nieves-Rodriguez, 22 Vet. App. at 302-04.  Generally, an examiner may not ignore relevant lay testimony.  See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).  Here, a 2004 VA examination report diagnosed lumbar spine spondylosis, right hip scar, and hip ankylosis, and provided negative nexus opinions with some supporting rationale.  The examiner did not address, however, the Veteran's lay statements of continuous back pain, hip pain, and right hip scar since service discharge.  The 2004 opinion is thus inadequate.  Accordingly, further examination is required.   

Regarding the claim for entitlement to service connection for recurrent infections, remand is required for VCAA notice and an examination.  In a service connection claim, VCAA notice requirements include notice of (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86.  

Here, the Veteran has alleged his recurrent infections are due to Agent Orange exposure.  This substantive notice must be sent.  The Veteran's service entrance examination noted normal nose, sinus, mouth, and throat.  In December 1968, the assessments were tonsillitis, the flu, and an upper respiratory infection.  The Veteran had a history of tonsillitis.  There was tonsillar hypertrophy.  In February 1967 and February 1968, the Veteran reported a sore throat.  The Veteran's service discharge examination noted normal nose, sinus, mouth, and throat.  An October 1995 private record noted acute tonsillitis.  In a December 1996 private record, the ear, nose, and throat examination was normal.  A July 1997 private record noted a negative chest x-ray.  In December 1997 it was noted that there may be a viral infection.  In January 1998 record, the Veteran's ear, nose, and throat examination was normal.  A December 1999 private record, the Veteran reported cough and congestion.  March and April 2005 private records assessed resolving bronchitis.  An April 2006 private record noted a routine flu.  A January 2009 private record noted an upper respiratory infection; a chest x-ray was negative.  A February 2009 private record noted a recurrent cough, but chest and sinus x-rays were negative.  Another February 2009 private record noted acute bronchitis and acute sinusitis.  The Veteran has provided testimony that he has recurring infections.  Thus, there is evidence of infections during service, current symptoms of infections, and lay evidence of recurrent infections.  Thus, an examination is required.
Accordingly, the case is REMANDED for the following action:

1.  Provide appropriate VCAA notice to the Veteran regarding his petition to reopen a claim for entitlement to service connection for a gastrointestinal disorder and regarding Agent Orange requirements for his claim for service connection for recurrent infections.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).  

2.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his bilateral hearing loss and otalgia.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.  

The examiner must provide the following opinions, in light of the examination findings and the service and post-service evidence of record:  1) whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss was caused or aggravated by the Veteran's military service; 2) whether it is at least as likely as not (50 percent or greater probability) that the otalgia was caused or aggravated by the Veteran's military service; 3) whether bilateral hearing loss is at least as likely as not (50 percent or greater probability) caused or aggravated by service-connected tinnitus; and 4) whether otalgia is at least as likely as not (50 percent or greater probability) caused or aggravated by service-connected tinnitus or bilateral hearing loss.

The examiner must specifically address the notation of trouble hearing and chronic earaches contained in the Veteran's STRs, including the service discharge examination.  Additionally, the examiner must address what appears to be a threshold shift in the service entrance and service discharge audiograms.

3.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his lumbar spine disorder, bilateral hip disorder, and right hip scar.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.  

The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed lumbar spine disorder was caused or aggravated by the Veteran's military service.  The examiner must also address the service discharge STRs that indicated complaints of chronic back pain. The examiner must address the Veteran's assertions of ongoing back and hip pain after service discharge, the private medical records indicating an automobile accident in April 1987, and the 2004 VA orthopedic examination.  Additionally, the examiner must address the 2003 private opinion that the lumbar spine disorder, hip disorder, and right hip scar are all due to service, to include an in-service injury.

4.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his recurrent infections.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.  

The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that any recurrent infections are caused or aggravated by the Veteran's military service.  The examiner must also specifically address the Veteran's STRs, which contain diagnoses of tonsillitis, the flu, an upper respiratory infection, and tonsillar hypertrophy.  The examiner must also address the relevant diagnoses contained in records dated in the 1990s, 2006, and 2009.

5.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

6.  After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  These claims are as follows:  entitlement to service connection for recurrent infections, bilateral hearing loss, otalgia, a lumbar spine disorder, a bilateral hip disorder, and a right hip scar, and petition to reopen a claim for entitlement to service connection for a gastrointestinal disorder.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs