Citation Nr: 1309399 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 04-31 994A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type 2, since July 30, 1996. 2. Entitlement to a rating in excess of 20 percent for erectile dysfunction. 3. Entitlement to a compensable rating for residuals of hepatitis A and B prior to March 21, 2005. 4. Entitlement to a rating in excess of 10 percent for residuals of hepatitis A and B since March 21, 2005. 5. Entitlement to a rating in excess of 10 percent for neuropathy in the left lower extremity prior to April 7, 2005. 6. Entitlement to a rating in excess of 40 percent for neuropathy in the left lower extremity since April 7, 2005. 7. Entitlement to a rating in excess of 10 percent in the neuropathy in the right lower extremity prior to April 7, 2005. 8. Entitlement to a rating in excess of 40 percent in the neuropathy in the right lower extremity since April 7, 2005. 9. Entitlement to a rating in excess of 10 percent for residuals of a fracture to the right thumb. 10. Entitlement to a rating in excess of 10 percent for a low back disability prior to November 1, 2005. 11. Entitlement to a total disability rating based on individual unemployability (TDIU). 12. Entitlement to an effective date prior to July 30, 1996, for the grant of service connection for diabetes mellitus, type 2. 13. Entitlement to an effective date prior to April 30, 1990 for the grant of service connection for hepatitis A and B. 14. Entitlement to an effective date prior to April 8, 2010, for the grant of service connection for an acquired psychiatric disorder, characterized as posttraumatic stress disorder (PTSD) and depression. 15. Entitlement to an effective date prior to November 8, 2004 for the grant of service connection for prostate cancer. 16. Entitlement to an effective date prior to November 8, 2004, for the grant of special monthly compensation (SMC) based on housebound status. 17. Entitlement to an effective date prior to March 9, 2005 for the grant of service connection for bilateral diabetic foot ulcers. 18. Entitlement to an effective date prior to March 9, 2005 for the grant of service connection for diabetic retinopathy. 19. Whether the Veteran's assigned combined disability rating was proper. 20. Whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for dermatophytosis of the feet. 21. Whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for gout. 22. Entitlement to service connection for a stomach disorder, characterized as a hiatal hernia. 23. Entitlement to service connection for numbness in the hands. 24. Entitlement to service connection for a balance disorder. 25. Entitlement to service connection for headaches. 26. Entitlement to service connection for a cervical spine disorder. 27. Entitlement to service connection for a right shoulder disorder. 28. Entitlement to service connection for a bilateral hip disorder, to include as secondary to diabetes mellitus, type 2. 29. Entitlement to service connection for a bilateral knee disorder, to include as secondary to diabetes mellitus, type 2. 30. Entitlement to service connection for serratia marcescens. 31. Entitlement to service connection for a staphylococcus infection. 32. Whether it was proper to sever service connection for nephropathy, to include as secondary to diabetes mellitus, type 2. 33. Whether it was proper to sever the award of compensation under 38 U.S.C.A. § 1151 for a lumbar spine disorder. 34. Whether it was proper to sever the award of compensation under 38 U.S.C.A. § 1151 for a left shoulder disorder. 35. Whether it was proper to sever the award of compensation under 38 U.S.C.A. § 1151 for ulnar entrapment neuropathy in the right upper extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter is on appeal from decisions in April 2002, July 2003, September 2003, December 2004, August 2005, April 2006, August 2006 and September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2012 the Veteran testified at a VA office in Lebanon, Pennsylvania, via a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The following issues 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: * Entitlement to a rating in excess of 20 percent for diabetes mellitus, type 2. * Entitlement to a compensable rating for residuals of hepatitis A and B prior to March 21, 2005. * Entitlement to a rating in excess of 10 percent for residuals of hepatitis A and B since March 21, 2005. * Entitlement to a rating in excess of 10 percent for neuropathy in the left lower extremity prior to April 7, 2005. * Entitlement to a rating in excess of 10 percent for a low back disability prior to November 1, 2005. * Entitlement to an effective date prior to April 30, 1990 for the grant of service connection for hepatitis A and B. * Entitlement to an effective date prior to November 8, 2004 for the grant of service connection for prostate cancer. * Entitlement to an effective date prior to November 8, 2004, for the grant of special monthly compensation (SMC) based on housebound status. * Entitlement to an effective date prior to March 9, 2005 for the grant of service connection for bilateral diabetic foot ulcers. * Entitlement to an effective date prior to March 9, 2005 for the grant of service connection for diabetic retinopathy. * Whether the Veteran's assigned combined disability rating was proper. * Entitlement to service connection for numbness in the hands. * Entitlement to service connection for a right shoulder disorder. * Entitlement to service connection for a balance disorder. * Entitlement to service connection for a staphylococcus infection. * Whether it was proper to sever service connection for nephropathy, to include as secondary to diabetes mellitus, type 2. FINDINGS OF FACT 1. At his May 2012 hearing, the Veteran requested that the issues of entitlement to increased ratings for erectile dysfunction, neuropathy in the right lower extremity, neuropathy in the left lower extremity since April 7, 2005, residuals of a fracture to the right thumb, entitlement to TDIU, whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for dermatophytosis of the feet and gout, and entitlement to service connection for a bilateral knee disorder, bilateral hip disorder, stomach disorder, headaches, cervical spine disorder, and serratia marcescens be withdrawn. 2. On July 30, 1996, the Veteran filed a claim seeking service connection for diabetes mellitus, type 2. 3. The RO issued a rating decision in April 2002 granting service connection for diabetes mellitus, type 2, effective July 30, 1996. 4. On August 8, 2002, the Veteran filed a claim seeking service connection for an acquired psychiatric disorder. 5. The award of compensation benefits under 38 U.S.C.A. § 1151 for a lumbar spine disorder, left shoulder disorder, ulnar entrapment neuropathy in the right upper extremity was not clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the substantive appeal as to the issues of entitlement to a rating in excess of 20 percent for erectile dysfunction, entitlement to a rating in excess of 10 percent in the neuropathy in the right lower extremity prior to April 7, 2005, entitlement to a rating in excess of 40 percent in the neuropathy in the right lower extremity since April 7, 2005, entitlement to a rating in excess of 40 percent for neuropathy in the left lower extremity since April 7, 2005, entitlement to a rating in excess of 10 percent for residuals of a fracture to the right thumb, entitlement to TDIU, whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for dermatophytosis of the feet, whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for gout, entitlement to service connection for a stomach disorder, characterized as a hiatal hernia, entitlement to service connection for headaches, entitlement to service connection for a cervical spine disorder, entitlement to service connection for a bilateral hip disorder, to include as secondary to diabetes mellitus, type 2, entitlement to service connection for a bilateral knee disorder, to include as secondary to diabetes mellitus, type 2, and entitlement to service connection for serratia marcescens, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 2. The criteria for an effective date prior to July 30, 1996, for the grant of service connection for diabetes mellitus, type 2, have not been met. 38 U.S.C.A. §§ 1502, 1521, 5103, 5103A, 5110(a) (West 2002); 38 C.F.R. §§ 3.1(r), 3.350, 3.351, 3.352, 3.400 (2012). 3. The criteria for an effective date of August 8, 2002, for the grant of service connection for an acquired psychiatric disorder, characterized as PTSD and depression, have been met. 38 U.S.C.A. §§ 1502, 1521, 5103, 5103A, 5110(a) (West 2002); 38 C.F.R. §§ 3.1(r), 3.350, 3.351, 3.352, 3.400 (2012). 4. The severance of the award of compensation benefits under 38 U.S.C.A. § 1151 for a lumbar spine disorder was not proper. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.103, 3.105, 3.361 (2012). 5. The severance of the award of compensation benefits under 38 U.S.C.A. § 1151 for a left shoulder disorder was not proper. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.103, 3.105, 3.361 (2012). 6. The severance of the award of compensation benefits under 38 U.S.C.A. § 1151 for ulnar entrapment neuropathy in the right upper extremity was not proper. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.103, 3.105, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2012). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2012). During his May 2012 hearing before the Board, the Veteran requested that the following claims be withdrawn: * Entitlement to a rating in excess of 20 percent for erectile dysfunction; * Entitlement to a rating in excess of 40 percent for neuropathy in the left lower extremity since April 7, 2005; * Entitlement to a rating in excess of 10 percent for neuropathy in the right lower extremity prior to April 7, 2005; * Entitlement to a rating in excess of 40 percent in the neuropathy in the right lower extremity since April 7, 2005; * Entitlement to a rating in excess of 10 percent for residuals of a fracture to the right thumb; * Entitlement to TDIU; * Whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for dermatophytosis of the feet; * Whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for gout; * Entitlement to service connection for a stomach disorder, characterized as a hiatal hernia; * Entitlement to service connection for headaches; * Entitlement to service connection for a cervical spine disorder; * Entitlement to service connection for a bilateral hip disorder, to include as secondary to diabetes mellitus, type 2; * Entitlement to service connection for a bilateral knee disorder, to include as secondary to diabetes mellitus, type 2; and * Entitlement to service connection for serratia marcescens. See Hearing Transcript (T.) at 2. Later, at the same hearing, he stated that he was satisfied with the 40 percent rating he has received for the neuropathy in his left lower extremity since April 7, 2005, but still appeals his rating prior to that date (T. at 15). In view of the Veteran's expressed desire, the Board concludes that further action with regard to these claims is not appropriate. The Board no longer has jurisdiction over the withdrawn issues and, as such, must dismiss the appeal as to these claims. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran's diabetes and psychiatric disorder claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Further, with respect to severance of previously service-connected disabilities, this action was not prompted by a claim submitted by the Veteran. Rather, the action was undertaken as a result of a review of pertinent evidence on the RO's on initiative. The RO thereafter followed the procedures outlined in 38 C.F.R. § 3.105(d), which included notice requirements specifically relating to severance of service connection, as will be discussed in greater detail below. The standard notice requirements do not apply, and no further notice is needed under VCAA. Moreover, as compensation for lumbar spine disorder, left shoulder disorder, ulnar entrapment neuropathy in the right upper extremity (under 38 U.S.C.A. § 1151) is being restored, which represents a full grant of those issues, any error in providing notice or assistance is deemed non-prejudicial. VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran submitted a number of his private treatment records. Further, as is discussed in more detail below, the Veteran has submitted a claim seeking disability benefits with the Social Security Administration (SSA), and VA is obligated to acquire such records if relevant. There is no prejudice to the Veteran in considering some of the claims on appeal. Specifically, the relevant evidence pertaining to effective date claims related to service connection issues involve communications made to VA indicating the intent to submit claim, and do not depend upon information contained in the medical evidence. Moreover, it is not reasonably likely that any communications sent by the Veteran to VA would be included with any records sent to the SSA. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). Next, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court has held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the May 2012 hearing, the undersigned Veterans Law Judge identified the issues on appeal (T. at 2). Two issues were neither identified nor discussed. These issue have been remanded to cure that procedural defect. Information was also solicited regarding all of the issues on appeal, to include his desire to withdraw 14 of these issues, the symptoms associated with his diabetes (T. at 5-9), hepatitis (T. at 9-13), the neuropathy in the lower extremities (T. at 13-15), right shoulder (T. at 16), the nature and details surrounding his claims under 38 C.F.R. § 1151 (T. at 17), balance disorder (T. at 21) and psychiatric disorder (T. at 21-24). Of particular note, at the hearing, one of the issues on appeal was characterized as entitlement to "an effective date earlier than April 7, 2005 for the assignment of a forty percent rating for neuropathy of the left lower extremity." A closer review of the record indicates that the Veteran is actually seeking an increased rating for this disability prior to April 7, 2005. Although these are two distinct issues governed by to separate sections of VA regulations, there is no prejudice to the Veteran in this case, as he testified on the effects of his diabetes and its residuals. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim for service connection. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Effective Date In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b) (2012). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012); Norris v. West, 12 Vet. App. 413, 421 (1999). There are some exceptions to the regulations set forth in 38 C.F.R. § 3.400. First, if compensation is awarded pursuant to a liberalizing law, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Moreover, if a claim is reviewed, upon the Veteran's request, more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for only a period of one year prior to the date of receipt of the request for review. See 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd 106 F.3d 1577 (Fed. Cir. 1997). A second exception to the regulations regarding effective dates for disability compensation involves those Veterans who qualify as eligible under 38 C.F.R. § 3.816. See also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). Under that regulation, a Nehmer class member is a Veteran who served in the Republic of Vietnam and who has a "covered herbicide disease" such as diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, or soft-tissue sarcoma. See 38 C.F.R. § 3.816(b) (2012). Diabetes Mellitus The Board first considers the issue of service connection for diabetes mellitus, type 2, which was granted by the RO in an April 2002 rating decision, with an effective date of July 30, 1996. Since service connection was granted based on his exposure to toxic herbicides while serving in the Republic of Vietnam, he is a Nehmer class member as is contemplated under 38 C.F.R. § 3.816(b). Under this section, if VA denied compensation for the a covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the date VA received the claim on which the prior denial was based or the date the disability arose, whichever is later. If a veteran's claim for disability compensation for the covered herbicide disease was either (1) pending before VA on May 3, 1989, or (2) was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the date such claim was received by VA or the date the disability arose, whichever is later. 38 C.F.R. § 3.816. If neither of these conditions is met, then the effective date will be determined under 38 C.F.R. §§ 3.114 and 3.400. Here, the RO accepted the Veteran's July 30, 1996 claim as the date his formal claim, although it should be noted that he did not specifically mention diabetes mellitus in until a later claim in March 1997. Diabetes mellitus, on the other hand, was not added as a disease presumed related to toxic herbicide exposure until July 9, 2001. See 66 Fed. Reg. 23166 (May 8, 2001). As his claim was submitted after May 3, 1989, but before July 9, 2001, the Board will first consider whether this disorder actually arose before or after he submitted his claim. The evidence indicates that the Veteran's diabetes was apparent before he submitted his March 1997 claim. Specifically, a National Guard consultation sheet from December 1989 indicated that he had been recently diagnosed with diabetes. An August 1999 evaluation indicated that the Veteran had been diagnosed with diabetes mellitus for the past 11 years, and in fact had been taking insulin for the past four years. There is also a private medical evaluation from August 1980 indicating that he was "positive for diabetes mellitus." There is no other evidence from that time to support such a diagnosis at any time prior to December 1989. Nevertheless, the evidence establishes that this disorder was identified prior to his July 1996 claim. Therefore, although the Veteran is a "Nehmer class veteran," the earliest effective date he is eligible for is the date of his claim. As for whether he may be entitled to an earlier effective date under 38 C.F.R. §§ 3.114 and 3.400, the evidence indicates that the Veteran submitted his claim for diabetes mellitus on March 28, 1997. He also stated in April 1997 that he first observed unusual symptoms such as excessive urination while on active duty, and that his treating physicians noted abnormal blood sugar levels. However, when granting service connection, the RO determined that his formal claim from July 30, 1996 included a claim for diabetes mellitus, even though this disorder was not mentioned at that time. The date of the claim having been established, the Board will review the evidence submitted by the Veteran in the year preceding July 30, 1996, in order to consider whether there was an intent to file a claim for benefits. However, the evidence of record does not indicate any intent to submit a claim (or communications of any sort) during this time, and the Veteran has not argued to the contrary. Therefore, as there were no communications prior to July 30, 1996 indicating the intent to file a formal claim, the Board concludes that the effective date the Veteran's service-connected diabetes mellitus is July 30, 1996, and his claim for an earlier effective date is denied. Psychiatric Disorder With regard to the Veteran's psychiatric disorder, service connection for this claim was granted by the RO as secondary to service-connected disability in a September 2010 rating decision, effective April 8, 2010. In his March 2011 notice of disagreement, he stated that his psychiatric disorder was related to his diabetes mellitus and, since his diabetes mellitus began in 1982, the effective date of his psychiatric disorder should also be made effective from 1982. It is noted at the outset that neither of the above exceptions to 38 C.F.R. § 3.400 are applicable. The Veteran originally sought service connection for an acquired psychiatric disorder in November 1989. This claim was denied by the RO in May 1990. The Veteran appealed; and, in a May 1993, the Board issued a decision that denied service connection for psychiatric disorder, claimed to be posttraumatic stress disorder (PTSD) at that time. Thus, for purposes of establishing an effective date, an award of benefits can be no earlier than May 1993. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003) (in the absence of clear and unmistakable error, generally the earliest possible effective date for a grant of service connection for the reopened claims would be the date the application to reopen was filed with VA). On August 8, 2002, the Veteran submitted a claim seeking entitlement to compensation benefits for a number of disorders under 38 U.S.C.A. § 1151, including depression. In a July 2003 rating decision, the RO denied entitlement to benefits under 38 U.S.C.A. § 1151 for depression and, after the Veteran submitted a notice of disagreement to this decision in August 2003, the issue was again considered on three more occasions. In fact, after the Veteran submitted a September 2004 VA Form-9, this issue was on appeal before the Board until the September 2010 rating decision granted the claim in full. The basis of the award was that the Veteran's depression was caused or aggravated by his diabetes mellitus, which has been service connected from 1996. The Veteran's August 2002 claim seeking entitlement to compensation benefits for depression under 38 U.S.C.A. § 1151 is to be considered an application to reopen the previously denied connection for psychiatric disorder claim. It was not per se an original claim. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim). Moreover, while the September 2010 rating decision correctly states that the Veteran submitted his secondary service connection claim on April 8, 2010, and service connection for psychiatric disability was granted on that basis, the theory or basis for the grant of service connection is not the controlling principle in this case. The benefit sought in this case was service connection (or compensation) for an acquired psychiatric disorder, and, while there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006). The Board also acknowledges that service connection for diabetes mellitus, which was held to have either caused or aggravated his depression, was not granted until April 2002. However, an effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Put another way, the Veteran has been continuously prosecuting his claim for an acquired psychiatric disorder, albeit under several theories of entitlement, since he filed his claim for compensation on August 8, 2002. An effective date of August 8, 2002 for the grant of service connection for an acquired psychiatric disorder, characterized as PTSD and depression, is warranted. There is no basis for an effective date earlier than August 8, 2002, however. Although several claims were filed between the May 1993 Board decision and the Veteran's claim for compensation in August 2002, none of those claims or related correspondence formally or informally raised the issue of service connection for an acquired psychiatric disorder. Severance of Claims The Veteran was admitted to a VA medical center in order to treat a puncture wound on his right foot, which had developed complications due to his diabetic condition. As part of this treatment, he was transported via ambulance to a private hospital in order to receive an MRI on August 9, 1999. Unfortunately, the ambulance was involved in a motor vehicle accident while en route to the hospital. The Veteran was thrown from the gurney, causing multiple injuries. VA has not disputed that the ambulance service was at fault in causing the accident. In August 2002, the Veteran filed claims for benefits under 38 U.S.C.A. § 1151 for injuries to his left shoulder and lumbar spine, as well as for ulnar entrapment neuropathy in the right upper extremity. All three disabilities as shown to have been caused by injuries related to the accident. In a July 2003 rating decision, the RO granted compensation benefits for all three disorders, effective August 2, 2002 (the date of his claim). In a December 2004 rating decision, the RO proposed to sever benefits for the Veteran's injuries to his lumbar spine and left shoulder, as well as for ulnar entrapment in the right upper extremity. The RO found that it was clear and unmistakable error to grant compensation benefits for these disorders under 38 U.S.C.A. § 1151, as the ambulance was run by a private contractor, rather than a VA entity. As such, the rating decision concluded, the injury was not the result of training, hospitalization, medical or surgical treatment or examination. In a subsequent August 2005 rating decision, benefits for these three disorders was severed, effective November 1, 2005. When a veteran is granted entitlement to a benefit, such as service connection for a claimed disorder, this benefit can be severed only upon VA showing that the rating decision granting this benefit was clearly and unmistakably erroneous and only after certain procedural safeguards have been met. 38 C.F.R. § 3.105(d) (2012); see also Daniels v. Gober, 10 Vet. App. 474 (1997); Graves v. Brown,6 Vet. App. 166, 170-71 (1994). Specifically, when severance of service connection is warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.105(d); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). "Clear and unmistakable error" is present when, in a prior determination, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 3.105(a). Moreover, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). However, unlike most other issues related to clear and unmistakable error, 38 C.F.R. § 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. See Daniels v. Gober, 10 Vet. App. 474 (1997). Under the relevant statutes and regulations, for all claims received by VA after October 1, 1997, as in this case, compensation shall be awarded for a post-service "qualifying additional disability" in the same manner as it were service-connected. For VA purposes, a "qualifying additional disability" is a disability that was: (1) not the result of the Veteran's willful misconduct; (2) caused by hospital care, medical or surgical treatment, or an examination furnished the Veteran under any law administered by the Secretary of Veterans Affairs; and (3) the proximate cause of the disability or death was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151 (West 2002 & Supp. 2012). After a review of the evidence, the Board concludes that the severance of service connection was not proper. Much of the original decision to award compensation and later sever compensation was based on an interpretation of VA's law and regulations. Such does not necessarily rise to the level of clear and unmistakable error. Indeed, the Board would stress that in making this determination, the Board has been guided by the recent case of Viegas v. Shinseki ___ F.3d ___, No. 2012-7075, 2013 WL 363004 (Fed. Cir. Jan. 31, 2013), a case that was not decided at the time of the AOJ's adjudications of this claim. The Court in Viegas indicated that there was nothing in the language of section 1151 requiring that a veteran's injury must be "directly" caused by the "actual" provision of medical care by VA personnel. Further, the fact that VA medical treatment normally involves interaction with VA personnel does not mean that such treatment only encompasses the actions of VA employees. While the medical treatment provided by VA typically includes "direct involvement with VA staff," it was noted that the history of section 1151 did not indicate that the equipment necessary to provide medical care was not encompassed within the scope of the health care services VA provides. The Court also noted that if Congress had wanted to impose a requirement that the "direct" cause of a veteran's injury must be the "actual" medical treatment provided by VA personnel, Congress could readily have done so, but did not do so. Finally, the Court noted that section 1151 does not extend to the "remote consequences" of the hospital care or medical treatment provided by VA. The Veteran in this case came to VA to seek treatment, and VA decided that they were unable to provide him the necessary care at that facility and decided to send him to an outside facility as a necessary component of the health care services owed by VA. The Veteran's injury in this case was not, in the Board's view, merely due to the remote consequences of VA care. Instead, the Veteran would not have been injured had he not been transported as part of his VA medical treatment, and, as such, his injury was essentially an extension of his VA treatment. Accordingly, the award of compensation benefits under 38 U.S.C.A. § 1151 for a lumbar spine disorder, left shoulder disorder, and for ulnar entrapment neuropathy in the right upper extremity was not clearly and unmistakably erroneous. In sum, the Veteran's additional disability of the lumbar spine, left shoulder disorder, and ulnar entrapment neuropathy in the right upper extremity resulted from negligence (by the operator of the Ambulance service) caused during the furnishing of VA care. Restoration of compensation under 38 U.S.C.A. § 1151 for a lumbar spine disorder, left shoulder disorder, and ulnar entrapment neuropathy in the right upper extremity is warranted. ORDER The issue of entitlement to a rating in excess of 20 percent for erectile dysfunction is dismissed without prejudice. The issue of entitlement to a rating in excess of 40 percent for neuropathy in the left lower extremity since April 7, 2005 is dismissed without prejudice. The issue of entitlement to a rating in excess of 10 percent in the neuropathy in the right lower extremity prior to April 7, 2005 is dismissed without prejudice. The issue of entitlement to a rating in excess of 40 percent in the neuropathy in the right lower extremity since April 7, 2005 is dismissed without prejudice. The issue of entitlement to a rating in excess of 10 percent for residuals of a fracture to the right thumb is dismissed without prejudice. The issue of entitlement to TDIU is dismissed without prejudice. The issue of whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for dermatophytosis of the feet is dismissed without prejudice. The issue of whether new and material evidence has been submitted in order to reopen a previously denied claim of entitlement to service connection for gout is dismissed without prejudice. The issue of entitlement to service connection for a stomach disorder, characterized as a hiatal hernia is dismissed without prejudice. The issue of entitlement to service connection for headaches is dismissed without prejudice. The issue of entitlement to service connection for a cervical spine disorder is dismissed without prejudice. The issue of entitlement to service connection for a bilateral hip disorder, to include as secondary to diabetes mellitus, type 2, is dismissed without prejudice. The issue of entitlement to service connection for a bilateral knee disorder, to include as secondary to diabetes mellitus, type 2, is dismissed without prejudice. The issue of entitlement to service connection for serratia marcescens is dismissed without prejudice. An effective date prior to July 30, 1996, for the grant of service connection for diabetes mellitus, type 2, is denied. An effective date of August 8, 2002, for the grant of service connection for an acquired psychiatric disorder, characterized as PTSD and depression, is granted. Restoration of the award of compensation under 38 U.S.C.A. § 1151 for a lumbar spine disorder is granted. Restoration of the award of compensation under 38 U.S.C.A. § 1151 for a left shoulder disorder is granted. Restoration of the award of compensation under 38 U.S.C.A. § 1151 for ulnar entrapment neuropathy in the right upper extremity is granted. (CONTINUED NEXT PAGE) REMAND As for the remaining issues on appeal, the Board determines that additional development is necessary before they may be considered. As an initial matter, during a May 2003 VA examination, the Veteran stated that he receives disability compensation from the SSA. In general, VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). Given the likelihood that these records are relevant to the issues on appeal, an attempt should be made to acquire them. Next, with respect to his claims seeking increased ratings for his diabetes mellitus, hepatitis A and B, and for peripheral neuropathy in the left lower extremity, the Veteran has not undergone a VA examination for any of these disorders since 2005. It is true that the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. However, in this case, the record indicates that his diabetes has led to a number of secondary disorders which, when viewing the claims in the most favorable light to the Veteran, raises the reasonable possibility that these disorders have increased in severity in the last seven years. Therefore, VA examinations should be conducted in order to identify the current state of these disorders. In addition to the above development, there are a number of issues that the Veteran has submitted notices of disagreement (NOD) to, but has not been provided a statement of the case. The issues include: * Entitlement to an effective date prior to April 30, 1990 for the grant of service connection for hepatitis A and B (NOD: October 13, 2006). * Entitlement to an effective date prior to November 8, 2004 for the grant of service connection for prostate cancer (NOD: February 4, 2005). * Entitlement to an effective date prior to November 8, 2004, for the grant of special monthly compensation (SMC) based on housebound status (NOD: February 4, 2005). * Entitlement to an effective date prior to March 9, 2005 for the grant of service connection for bilateral diabetic foot ulcers NOD: September 26, 2006). * Entitlement to an effective date prior to March 9, 2005 for the grant of service connection for diabetic retinopathy (NOD September 26, 2006). As the Veteran has submitted timely notices of disagreement with these claims, they must now be remanded to allow the RO to provide the Veteran with an appropriate SOC addressing them. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996). These issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. While the Veteran has asserted that VA has improperly calculated his overall disability rating, this issue cannot be considered until the remanded issues on appeal are also decided upon. Thus, adjudication of this claim should be deferred until that development is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). In May 2012 the Veteran did not testify on the issues of entitlement to a rating in excess of 10 percent for a low back disability, and whether it was proper to sever service connection for nephropathy, to include as secondary to his diabetes mellitus. In October 2012, the Veteran was sent a letter offering him the opportunity to testify on these issues, and in correspondence dated in November 2012 he indicted that he desired a Board video hearing on those issues. As such, the Veteran should be scheduled for such a hearing. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request all VA medical records pertaining to treatment of the Veteran from June 21, 2012 and associate them with the claims file (or Virtual VA file). 2. Obtain the Veteran's SSA records, including the medical evidence used to determine disability eligibility. If no SSA records are available, it should be so noted in the claims file. If any such records are obtained, such records should preferably be attached in electronic format or as part of the Virtual VA file. 3. Schedule the Veteran for VA examination(s) to determine the current nature and severity of his service-connected hepatitis A and B, diabetes mellitus and peripheral neuropathy in the left lower extremity. The claims folder must be made available to and reviewed by the examiner(s). All indicated tests and studies should be accomplished and the findings then reported in detail. Following a physical examination of the Veteran and a review of the claims folder, the examiner should specifically comment on the following: * Hepatitis A and B: the presence of daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. An "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The examination should also include an evaluation of any sequelae of this disability, such as liver malignancy. * Diabetes Mellitus: Whether the disability requires insulin, restricted diet and regulation of activities. * Neuropathy in the Left Lower Extremity: The amount of paralysis (complete or incomplete) and the presence of muscular atrophy. 4. Thereafter, readjudicate the following issues: * Entitlement to a rating in excess of 20 percent for diabetes mellitus, type 2. * Entitlement to a compensable rating for residuals of hepatitis A and B prior to March 21, 2005. * Entitlement to a rating in excess of 10 percent for residuals of hepatitis A and B since March 21, 2005. * Entitlement to a rating in excess of 10 percent for neuropathy in the left lower extremity prior to April 7, 2005. * Entitlement to a rating in excess of 10 percent for a low back disability prior to November 1, 2005. * Entitlement to service connection for numbness in the hands. * Entitlement to service connection for a balance disorder. * Entitlement to service connection for a staphylococcus infection. * Entitlement to service connection for a right shoulder disorder. * Whether it was proper to sever service connection for nephropathy, to include as secondary to diabetes mellitus, type 2. * Whether the Veteran's assigned combined disability rating was proper. All evidence of record should be considered, and particularly the evidence obtained pursuant to this remand. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 5. Provide the Veteran and his representative a SOC on the issues: * Entitlement to an effective date prior to April 30, 1990 for the grant of service connection for hepatitis A and B. * Entitlement to an effective date prior to November 8, 2004 for the grant of service connection for prostate cancer. * Entitlement to an effective date prior to November 8, 2004, for the grant of special monthly compensation (SMC) based on housebound status. * Entitlement to an effective date prior to March 9, 2005 for the grant of service connection for bilateral diabetic foot ulcers. * Entitlement to an effective date prior to March 9, 2005 for the grant of service connection for diabetic retinopathy. The Veteran and his representative should be clearly advised of the need to file a substantive appeal if he wishes to complete an appeal from that determination. If an appeal is perfected, then the case should be returned to the Board for further appellate consideration, as appropriate. 6. Schedule the Veteran for a Board video hearing (concerning the issues of entitlement to a rating in excess of 10 percent for a low back disability prior to November 1, 2005 and whether it was proper to sever service connection for nephropathy, to include as secondary to diabetes mellitus, type 2) at the earliest available opportunity, with appropriate notification to the Veteran and his representative. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs