Citation Nr: 1307625	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  10-42 378	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a gastrointestinal disorder, to include hiatal hernia, gastritis, and duodenal ulcers.

4.  Entitlement to service connection for a skin disorder, claimed as secondary to herbicide exposure.

5.  Entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran served on active duty from February 1968 through October 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection for lumbar spine degenerative disc disease, effective October 5, 2009, and assigned a 10 percent initial disability rating, and, denied service connection for bilateral hearing loss, tinnitus, hiatal hernia, and a skin disorder.  In March 2010, the Veteran filed a timely Notice of Disagreement (NOD) in which he contested the RO's denial of service connection for the aforementioned claimed disabilities, and the initial disability rating assigned for his service-connected lumbar spine degenerative joint disease.  After a Statement of the Case (SOC) was issued in June 2010, the Veteran perfected his appeal as to those issues in October 2010, via VA Form 9 substantive appeal.

In November 2011, the Veteran testified during a hearing that was held before the undersigned Veterans Law Judge.  A transcript from those proceedings is associated with the record.

The Veteran's claim for service connection for a gastrointestinal disorder was initially claimed by the Veteran as service connection for hiatal hernia.  As noted in the discussion below, the evidence indicates various diagnoses other than hiatal hernia that are pertinent to the Veteran's claim.  Accordingly, the Board has expanded the Veteran's claim to include these other diagnoses and has recharacterized the issue as styled on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The issues of entitlement to service connection for a skin disorder, claimed as secondary to herbicide exposure, and entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease 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.  The Veteran sustained acoustic trauma during service.

2.  The Veteran currently has bilateral sensorineural hearing loss and tinnitus; however, both the Veteran's hearing loss and tinnitus are unrelated to a disease or injury of service origin, including acoustic trauma sustained therein.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 38 C.F.R.  §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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.  

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Regarding his claims for service connection for bilateral hearing loss and tinnitus, a pre-rating November 2009 letter notified the Veteran of the information and evidence needed to substantiate his claims.   Consistent with Dingess, the letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected.  After affording the Veteran reasonable opportunity to respond, his claims were adjudicated in the RO's March 2010 rating decision.  Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied.

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims.  His service treatment records, service personnel records, claims submissions, hearing transcript, and VA treatment records have been associated with the record.  The Veteran was also afforded a VA examination for hearing loss and tinnitus in January 2010.  This examination, along with the other evidence of record, is fully adequate for the purposes of determining the nature and etiology of the Veteran's bilateral hearing loss and tinnitus.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

Service Connection for Hearing Loss and Tinnitus

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing:  (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  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.  If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain listed chronic diseases may be awarded on presumptive basis and will presumed to have been incurred during active service, even though there is no evidence of the disability during service if such disability becomes manifest to a compensable degree within one year of separation from active duty.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

While hearing loss disability is not a disease listed in 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection.  As the Veteran's hearing loss disability has been described as sensorineural in nature, the Board will consider whether service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307, 3.309 is warranted. 

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Additionally, any disability which is proximately due to, or results from, another disease or injury for which service connection has already been granted shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected.

Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  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 distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

In addition to the foregoing general principles, service connection for hearing loss is not granted unless the claimed hearing loss is of a particular level of severity.  For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In this case, the evidence shows that the Veteran has current bilateral hearing loss that meets the regulatory threshold under 38 C.F.R. § 3.385.  In that regard, audiometric testing performed during a January 2010 VA examination revealed the following pure tone thresholds, expressed in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
40
65
75
90
LEFT
40
35
70
90
90

Speech discrimination testing performed at that time showed speech recognition abilities of 88 percent in the right ear and 62 percent in the left ear.  The examiner determined that the findings from the examination indicated mild to severe sensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the left ear.

Where the evidence above demonstrates a current hearing loss disability which meets the statutory threshold under 38 C.F.R. § 3.385, the disposition of the Veteran's claim for service connection for bilateral hearing loss turns upon the question of whether that hearing loss is etiologically related to his active duty service.  As discussed below, the weight of evidence in this case does not show a relationship between the Veteran's hearing loss and active duty service.  Similarly, the weight of evidence also does not show that his tinnitus is related in any way to his active duty service.

In his claims submissions, the Veteran alleges that he began experiencing 
hearing loss and tinnitus symptoms during his active duty service.  During his November 2011 Board hearing, he testified that he began noticing problems with his hearing and tinnitus during service in Vietnam.  He reported acoustic trauma over the course of his active duty service, beginning with his basic training at Fort Polk, Louisiana, where he was qualified in the use of an M-14 rifle and also completed training with hand grenades.  He recalled that he was not given hearing protection during that time.  According to the Veteran, he was subsequently deployed to Vietnam, where he delivered ammunition to air bases and artillery compounds as a member of a Transportation Division.  He recalled that he frequently stayed overnight at these air bases and artillery compounds, where artillery fire was almost constant.  He stated that, at times, he was approximately 50 to 80 feet from firing artillery.  Again, he stated that he was not issued any hearing protection during his service in Vietnam.  Regarding his symptoms, he reported that he has been experiencing ringing in his ears and hearing loss every day since service.  He does not, however, allege any specific treatment for his hearing loss or tinnitus since his separation from service.

Consistent with the Veteran's reported in-service acoustic trauma, the Veteran's Enlisted Qualification Record shows that the Veteran served in Vietnam from October 1968 through September 1969.  The record also shows that, during that time, he was assigned the military occupational specialty (MOS) of heavy vehicle driver and was attached to the 172nd and 566th Transportation Companies.  Also consistent with the Veteran's testimony and assertions, his DD Form 214 reflects that he was decorated for distinction as a rifle marksman.  Based upon the Veteran's service records, the Board finds that the character of his service is consistent with his described in-service acoustic trauma.

Although the evidence shows that the Veteran did incur acoustic trauma during his active duty service, it does not support the Veteran's contentions that his hearing loss and tinnitus began during his active duty service or is otherwise related to his active duty service.

During his September 1967 enlistment examination, he expressly denied having any pre-service history of hearing loss or other ear problems.  A clinical examination of the ears and eardrums was normal.  Audiometric testing performed at that time revealed the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
0 (15)
5 (15)
-5 (5)
-5 (5)
10 (15)
LEFT
-5 (10)
-5 (5)
-5 (5)
-5 (5)
30 (35)

(NOTE: prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  In order to facilitate data comparison, the older ASA standards (which are expressed outside parentheses on the left) have been converted to ISO-ANSI standards (which are expressed by the figures in parentheses on the right))

The Veteran's subsequent service treatment records do not reflect any objective findings of any problems related to the Veteran's ears or hearing.  While the Veteran reported a history of hearing loss on a September 1969 report of medical history, his separation examination report shows that contemporaneous clinical examination of the ears and eardrums was normal.  Further, audiometric findings contained on the September 1969 separation examination report reveal the following:  




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
X
15
LEFT
0
0
0
X
30

Interestingly, the Veteran testified during his Board hearing that he was not given a hearing test during his separation examination.  In support of this contention, he has submitted a list of veterans who purportedly served in the 172nd Unit, were processed for separation at Fort Riley, Kansas, and who purportedly did not receive audiometric hearing tests prior to being discharged.  The Board notes that it is unclear as to who compiled the list of names reflected in that document.  In that regard, there is no organizational letterhead anywhere on the document nor is the document signed or endorsed by any organization or person.  The Veteran also has not provided any information as to how he came into possession of this document.  Further, there is no information anywhere in the record as to how the names shown in the document were compiled.  

Overall, there is no indication of any irregularity in the September 1969 separation examination report which would suggest that the audiometric data reflected therein is false or unreliable.   These findings are not indicative of a hearing loss disability for VA purposes.  For these reasons, the Board accepts the audiometric data shown in the September 1969 separation examination as accurately reporting audiometric data demonstrated by the Veteran at that time.  It also assigns far greater probative weight to the information contained in the separation examination report than it does to the Veteran's testimony and the list of names provided by the Veteran.

During the aforementioned January 2010 VA examination, the Veteran reported the in-service noise exposure discussed above.  He stated that occupationally, he worked as a heavy equipment operator and was seated in the cab portion of the machine.  Although noise exposure would appear to be consistent with the nature of such employment, the examiner did not elaborate as to the extent of such noise, nor does he indicate whether he used hearing protection while operating heavy machinery.  The Veteran also acknowledged recreational noise exposure rom hunting; however, described such noise exposure as being "minimal".  Concerning etiology, the VA examiner opined that it is less likely than not that the Veteran's hearing loss is the result of noise exposure during his active duty service.  The examiner also determined that the Veteran's tinnitus was as likely as not a symptom of his hearing loss.  Based upon review of the claims file, the Veteran's reported history of noise exposure, and the findings from the examination, the examiner opined that the Veteran's hearing loss and tinnitus are likely due to post-service noise exposure, aging, and other health conditions that were incurred after his active duty service.

The only other opinion in the record concerning the etiology of the Veteran's hearing loss and tinnitus are the Veteran's lay statements, through which he has asserted onset of such problems during his active duty service.  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  In view of the foregoing law, the Veteran is certainly competent to provide a probative statement as to the onset and duration of his hearing loss and tinnitus.  Nonetheless, in the absence of any medical training or experience, he is still not competent to render an opinion as to the complex question of whether his current hearing loss and tinnitus are etiologically related to his in-service acoustic trauma.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.  

As the VA examiner intimates in her January 2010 report, both hearing loss and tinnitus are disabilities that are susceptible to many causes, including age and acoustic trauma from various in-service and non-service related sources.  In view of these complicating factors combined with the Veteran's lack of medical training and experience, the Veteran is not competent to offer a probative opinion as to the cause or etiology of his hearing loss and tinnitus.  Thus, more probative weight is placed on the opinions proffered by the VA examiner, who is a trained medical professional who has examined the Veteran, obtained a report of his history, and reviewed pertinent service and post-service treatment records.

To the extent that the Veteran has alleged continuity of hearing loss and tinnitus since service, the Board does not find that such assertions are credible.  As discussed above, the service treatment records do not support the Veteran's claim that he first experienced hearing loss disability or tinnitus during service.  In fact, the audiometric findings from the Veteran's separation examination report shows that the Veteran's hearing was within normal limits at the time of his separation from service.  Further, a comparison of the audiometric data from his enlistment examination and his separation examination does not indicate any pure tone shifts that would be consistent with any hearing loss over the course of his active duty service.  Finally, the post-service treatment records do not mention any history of hearing loss until the Veteran's October 2009 claim for service connection, at which time, the Veteran simply asserted entitlement to service connection.  Indeed, the earliest treatment record relevant to evaluation and treatment of hearing loss is the January 2010 VA examination report.  This medical history is contrary to the Veteran's allegation of onset during service and subsequent continuity of hearing loss and tinnitus, and, casts grave doubt as to the credibility of the Veteran's lay assertions and testimony relating to hearing loss and tinnitus.

Overall, the preponderance of the evidence is against the Veteran's claims of service connection for bilateral hearing loss and tinnitus, and these claims must be denied.  In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim.  See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.


REMAND

The Board finds that further development is necessary prior to final adjudication of the remaining issues on appeal.

With regard to the Veteran's claim for service connection for a gastrointestinal disorder, to include hiatal hernia, gastritis, and duodenal ulcers, the Veteran has alleged in his claims submissions that this disability began during his active duty service.  During his Board hearing, he clarified that he actually first experienced symptoms of indigestion during the year after his separation from service.  He stated that he underwent treatment at the VA Medical Center (VAMC) in Omaha, Nebraska for those symptoms, where examination and studies purportedly revealed a hiatal hernia.  According to the Veteran, he was placed on Ranitidine at that time, and he currently continues to take Ranitidine twice per day.

Documentation in the claims file shows that VA has undertaken previous efforts to obtain the Veteran's VA treatment records.  Nonetheless, a November 2009 record reflects that the VA treatment records requested for the Veteran were limited to the period beginning from 1989 (parenthetically, the Board notes that in response to its request the RO received VA treatment records beginning from 1976).  Given the Veteran's hearing testimony that he received initial VA treatment for hiatal hernia within his first year from separation from service in October 1969, this matter must be remanded so that VA may undertake efforts to expand its search for the Veteran's VA treatment records to include the period from October 1969 through December 1976.  38 C.F.R. § 3.159(c)(2).

Further, on remand, the Veteran should be afforded a VA examination addressing the etiology of any currently manifested gastrointestinal disability.  

Concerning the Veteran's claim for service connection for a skin disorder, claimed as secondary to herbicide exposure, the Board first notes that the Veteran's service personnel records confirm that the Veteran served in Vietnam from October 1968 through September 1969.  By virtue of the Veteran's documented service in Vietnam, he is presumed to have been exposed to herbicides during such service. 38 C.F.R. § 3.307(a)(6)(iii).  There is no evidence of record which rebuts this presumption.  The provisions under 38 C.F.R. § 3.309(e) identify certain diseases that are presumably related to herbicide exposure, even in instances where there is no record of such disease during the veteran's active duty service.  Included among these specifically enumerated diseases are various skin disorders, including chloracne or other acneform diseases that are consistent with chloracne and dermatofibrosarcoma protuberans.  38 C.F.R. § 3.309(e).

In support of his claim for service connection for a skin disorder, the Veteran has alleged that his skin disorder began during his period of active duty service. During his Board hearing, he testified that he began noticing bumps and blisters over his forehead, face, back of neck, and legs during service in Vietnam.  He recalled further that he often did not wear a shirt while performing his duties in Vietnam.  Despite these symptoms, the Veteran admitted that he did not seek treatment for his skin problems during service because he assumed that they were simply temporary acne.  He stated, however, that his skin problems did not go away.  Regarding his current skin symptoms, he reported ongoing raised areas of the skin on his face and arms.  He described that these symptoms particularly flared up during the summer and in hot weather, while they remained relatively dormant during the winter.

In June 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his skin disorder.  Although the examination did reveal firm and scaly plaques on the Veteran's right forearm and blackheads over parts of the Veteran's face, the VA examiner was unable to provide a specific diagnosis; however, did suspect actinic keratoses.  The examiner noted that the Veteran appeared to have significant sun exposure from his occupation as a heavy machine operator and opined that the Veteran's skin disorder was likely related to his occupational sun exposure.  Hence, the examiner concluded, it is less likely than not that the Veteran's skin disorder was caused by exposure to Agent Orange.

In her June 2010 opinion, the VA examiner appears to rule out the possibility that the Veteran's skin disorder is related to his in-service herbicide exposure.  In doing so, however, the examiner does not provide an opinion as to whether chloracne, other acneform diseases that are consistent with chloracne, and dermatofibrosarcoma protuberans may be ruled out as possible diagnoses, much less a precise diagnosis of the Veteran's skin disorder.  Similarly, it is unclear from the examiner's report as to whether the blackheads noted on the Veteran's face may be manifestations of chloracne or other acneform disease that is consistent with chloracne.  Finally, although the examiner concludes that the Veteran's undiagnosed skin disorder is a likely result of sun exposure, she does not address whether the Veteran's disorder may be related to his sun exposure during his active duty service (as noted above, the Veteran has reported that he sometimes performed his duties in Vietnam while being shirtless).

In view of the foregoing, the Board finds that the VA examiner's June 2010 opinion is incomplete and does not permit the Board to make a determination as to the nature and etiology of the Veteran's skin disorder.  As such, the Veteran should be arranged to undergo a new VA examination of his skin.  38 C.F.R. § 3.159(c)(4).  As noted above, the Veteran has reported that his skin disorder is active during the summer months and in warm weather while it is generally dormant during the winter.  Accordingly, the Veteran's VA skin examination should be scheduled to take place during the summer.  Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (stating that if an appellant's condition is subject to active and inactive stages, an examination should be conducted during the active stage). 

Regarding the Veteran's claim for a higher initial disability rating for service-connected lumbar spine degenerative disc disease, the Veteran was afforded a VA examination of his spine in January 2010.  During his November 2011 Board hearing, he testified that the symptoms associated with his spine disability had worsened since the VA examination.  Accordingly, the Veteran should be scheduled for a new VA examination to explore the current severity of his service-connected lumbar spine degenerative disc disease.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).

Prior to arranging the examinations described above, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should be asked to identify any private or VA treatment providers who have rendered treatment for his skin and back since 1997.  VA must then make efforts to obtain any treatment records that are identified by the Veteran.  38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1.  A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claims of entitlement to service connection for a gastrointestinal disorder, to include hiatal hernia, gastritis, and duodenal ulcers; service connection for a skin disorder, claimed as secondary to herbicide exposure; and entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease.  This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claims and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 

The letter must also notify the Veteran that VA is undertaking efforts to arrange VA examinations for his skin and service-connected lumbar spine degenerative disc disease.  The Veteran should be advised that it remains her responsibility to report for the scheduled VA examinations and to cooperate with the development of her claim; failure to report without good cause may result in denial of her claim.

The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided treatment for his gastrointestinal disorder, skin disorder, and back disorder since 1997.

2.  Make efforts to obtain the Veteran's VA treatment records which pertain to treatment received from October 1969 through December 1976, and, any records for treatment of the Veteran's gastrointestinal disorder, skin disorder, and back disorder since 1997 that have been identified by the Veteran.  Any records obtained as a result of such efforts should be associated with the claims file.  If such efforts yield negative results, a notation to that effect should be inserted in the file.  The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

3.  After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, to determine all manifestations and residuals of the Veteran's service-connected lumbar spine degenerative disc disease.

The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination.  All appropriate tests and studies, to include physical inspection of the spine, thoracolumbar range of motion testing, repetitive motion testing, and neurological testing, should be performed.  

Upon review of the record and examination of the Veteran, the examiner should describe in detail the demonstrated thoracolumbar ranges of motion (noting any pain that accompanies such motion and specifying the degree at which such pain begins) and all symptomatology that is related to the Veteran's service-connected lumbar spine degenerative disc disease.

To the extent that the examiner finds neurological manifestations and residuals that are at least as likely as not related to the Veteran's lumbar spine degenerative disc disease, the examiner should delineate the nerve groups involved, determine whether paralysis of the identified nerve groups are complete or incomplete, and if paralysis is incomplete provide an opinion as to whether the severity of such neurological manifestation is mild, moderate, moderately severe (this category is available only for involvement of the sciatic nerve group), or severe.

The examiner should also describe any functional loss pertaining to the service-connected lumbar spine disability that is due to pain or weakness, and to document all objective evidence of those symptoms.  In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use.  The examiner should also document, to the extent possible, the frequency and duration of incapacitating episodes (i.e., acute signs and symptoms of intervertebral disc syndrome that have required bed rest prescribed by a physician and treatment by a physician).

Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion.

4.  During the summer, the Veteran should also be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of his claimed skin disorder.  The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination.  For purposes of the examination, the examiner should presume that the Veteran was exposed to herbicides during his service in Vietnam.

All tests and studies deemed necessary by the examiner should be performed, including an interview of the Veteran.  Based on a review of the claims file, the relevant information obtained from the examiner's interview of the Veteran, and the clinical findings from the examination, the VA examiner is requested to provide a diagnosis pertaining to the Veteran's claimed skin disorder, and, to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosed disorder is etiologically related to an injury or illness incurred during active duty service, to include exposure to herbicides and sun exposure.

A complete rationale should be given for all opinions and conclusions.  In providing the requested rationale, the examiner should consider and address whether any findings from the examination are manifestations of chloracne, other acneform diseases that are consistent with chloracne, or dermatofibrosarcoma protuberans; or alternatively, whether such disorders may be ruled out.  Such rationale must include a discussion of all relevant evidence in the claims file, relevant findings on examination and from the Veteran's stated history, and applicable medical principles.  All findings, conclusions, and supporting rationale should be expressed in a typewritten report.

5.  The Veteran should also be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of his claimed gastrointestinal disorder.  The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination.  

All tests and studies deemed necessary by the examiner should be performed, including an interview of the Veteran.  Based on a review of the claims file, the relevant information obtained from the examiner's interview of the Veteran, and the clinical findings from the examination, the VA examiner is requested to provide a diagnosis pertaining to the Veteran's claimed gastrointestinal disorder, and, to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosed disorder (1) is etiologically related to an injury or illness incurred during active duty service or (2) was initially manifested within one year following the Veteran's separation from active duty.

A complete rationale should be given for all opinions and conclusions. Such rationale must include a discussion of all relevant evidence in the claims file, relevant findings on examination and from the Veteran's stated history, and applicable medical principles.  All findings, conclusions, and supporting rationale should be expressed in a typewritten report.

6.  If the Veteran fails to report to the scheduled examinations, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility.

7.  After completion of the above development and any other warranted development, the issues of the Veteran's entitlement to service connection for a skin disorder, claimed as secondary to herbicide exposure, and entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease, should be readjudicated.  If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond.

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

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



______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs