Citation Nr: 1315957 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 07-34 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder. 2. Entitlement to service connection for a skin disorder, other than jungle rot. 3. Entitlement to service connection for genitourinary disorder. 4. Entitlement to service connection for a right hip disorder. 5. Entitlement to service connection for a left hip disorder. 6. Entitlement to service connection for a right leg disorder. 7. Entitlement to service connection for a left leg disorder. 8. Entitlement to a disability rating in excess of 10 percent for scarring of the posterior neck. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1969 to December 1972, including service in the Republic of Vietnam (Vietnam) during the Vietnam Era (defined as January 9, 1962 to May 7, 1975). The Veteran had subsequent service in the Pennsylvania Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. By that rating action, the RO determined that new and material evidence had not been received to reopen previously-denied claims for skin and low back disorders. The RO also denied service connection for a genitourinary disorder, residuals of shrapnel wounds to the right and left hips, residuals of shrapnel wounds to the right and left legs, and continued a 10 percent disability rating assigned to the shrapnel wound scar of the posterior neck. This case was most recently before the Board in December 2011, when the Board remanded the case in order to further develop the medical evidence of record. As an initial matter, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, as will be discussed in further detail below, the Board finds that there has been effective compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) As the Board noted in its December 2011 Remand, the issue of whether new and material evidence has been received to reopen the following claims has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ): (a) service connection for posttraumatic stress disorder (b) service connection for malaria (c) service connection for jungle rot (d) a disability rating in excess of 10 percent for residuals of an abscess of the right buttocks (e) a disability rating in excess of 10 percent for a scar of the right index finger Therefore, the Board does not have jurisdiction over these claims and they are REFERRED to the AOJ for appropriate action. The issues of entitlement to service connection for a low back disorder, a bilateral hip disorder, and a bilateral leg 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, D.C. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. In an unappealed April 1995 rating decision, VA denied the Veteran's claim of entitlement to service connection for a low back disorder. 2. The evidence received since the April 1995 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a low back disorder. 3. The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed skin disorders, other than jungle rot, and his military service. 4. The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed genitourinary disorders and his military service. 5. Prior to January 24, 2012, the Veteran's neck scarring is not manifested by any of the characteristics of disfigurement, and the scarring does not result in visible or palpable tissue loss or gross distortion or asymmetry. 6. From January 24, 2012, the Veteran's neck scarring is manifested by no more than two characteristics of disfigurement, but the scarring does not result in visible or palpable tissue loss or gross distortion or asymmetry. CONCLUSIONS OF LAW 1. The April 1995 rating decision denying the Veteran's claim of entitlement to service connection for a low back disorder is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1994). 2. New and material evidence has been received sufficient to reopen the claim of service connection for a low back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2012). 3. The Veteran's skin disorders, other than jungle rot, were not incurred or aggravated by the Veteran's active duty military service, and they may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012). 4. The Veteran's genitourinary disorders were not incurred or aggravated by the Veteran's active duty military service, and they may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012). 5. Prior to January 24, 2012, the criteria for a disability rating in excess of 10 percent for neck scarring, based upon muscle impairment and limitation of motion, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.41, 4.118, Diagnostic Codes 7800-7805, 7899-5323 (2008). 6. From January 24, 2012, the criteria for a separate 30 percent disability rating, but no greater, in addition to the Veteran's existing 10 percent rating for neck scarring, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.41, 4.118, Diagnostic Codes 7800-7805, 7899-5323 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran's petition to reopen his claim for service connection for a low back disorder has been granted, as discussed below. As such, the Board finds that any error related to the Veterans Claims Assistance Act of 2000 (VCAA) with regard to this claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Kent v. Nicholson, 20 Vet. App. 1 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the Veteran's other claims, the Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated April 2005 notified the Veteran of information and evidence necessary to substantiate his claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran filed his claim prior to the 2006 decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess, and as such, he was not provided with full Dingess notice at the time of the April 2005 VCAA letter. Instead, in March 2006, pursuant to the Court's holding in Dingess, the Veteran was provided with notice regarding the degree of disability and effective date. Additionally, since the time of the March 2006 Dingess notice, the Veteran has been provided with several readjudications of his claims, and the Board finds that there has been no prejudice to the Veteran requiring additional notice. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records and VA medical treatment records have been obtained, to the extent available. Additionally, the Veteran has been provided with VA examinations, and the Board observes that the VA examiners reviewed the Veteran's claim file and past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA opinions are therefore adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In a November 2009 statement to VA, the Veteran canceled his previous request for a hearing before a Veterans Law Judge at a local RO. Accordingly, the Veteran's request for the hearing is considered withdrawn, and the Board may proceed with appellate review of the claims. See 38 C.F.R. § 20.702 (2012). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2012). A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 5108 (West 2002). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. See id.; see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (2012); Smith v. West, 12 Vet. App. 312, 314 (1999) (noting that if the evidence is new but not material, the inquiry ends and the claim cannot be reopened.) To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (noting that when determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of a witness.) While credibility is to be presumed, the Court has also held that lay statements offering medical opinions cannot provide a basis on which to reopen a claim for service connection. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (stating that "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108.") If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminating the concept of a well-grounded claim). Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board also notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a "low" one. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Turning to the facts in the instant case, the Veteran's claim of entitlement to service connection for a low back disorder was last finally denied in an April 1995 rating decision. The RO found that the Veteran had not presented evidence that he suffered from a chronic disability subject to service connection. The Veteran did not appeal the decision, and the rating decision became final. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1994). The Board must first determine if new and material evidence has been submitted since the time of the April 1995 final rating decision. See 38 U.S.C.A. § 5108 (West 2002). Additional medical evidence has been added to the record, including, among other evidence, an April 2010 radiographic report indicating that the Veteran has thoracolumbar osteoarthrosis with multiple thoracic wedges. This evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly-submitted evidence, the Veteran's previous claim for service connection was denied because the Veteran had not presented evidence that he suffered from a chronic disability. The April 2010 medical record, among other newly-submitted evidence, indicates that the Veteran suffers from osteoarthritis of the low back, and it thus relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for a low back disorder is reopened. Service Connection The Veteran has claimed that service connection is appropriate for a skin condition, other than jungle rot, and a genitourinary condition. As the Board discusses in further detail below, both of these claims fails because a nexus between the Veteran's military service and his claimed disabilities has not been established. The Board will accordingly discuss each of the Veteran's claims together because the claims involve a similar application of law to fact. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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." For certain chronic diseases set forth in 38 C.F.R. § 3.309, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). The Board notes, however, that the Veteran's claimed skin and genitourinary disorders are not among the chronic diseases set forth in 38 C.F.R. § 3.309, and therefore service connection cannot be established based solely on a continuity of symptomatology. See Walker. Additionally, a veteran who had active military service in Vietnam during the Vietnam Era is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the veteran was not so exposed. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). If such exposure occurred, the veteran is entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). The Board notes that the Veteran's claimed conditions are not listed among the disorders entitled to presumptive service connection. See 39 C.F.R. § 3.309(e) (2012). With regard to the Veteran's claimed skin condition, the Board acknowledges that chloracne and other acneform disease consistent with chloracne are entitled to presumptive service connection. The Veteran has not, however, been diagnosed with chloracne or other acneform disease consistent with chloracne, and the Veteran does not contend that he has been so diagnosed. Therefore, despite the Veteran's service in Vietnam during the Vietnam Era, the Veteran's claimed conditions are not entitled to presumptive service connection. Notwithstanding the foregoing, the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), states that even when presumptive service connection is not appropriate, a veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Though Combee concerns radiation exposure rather than herbicide exposure, it applies by extension to cases, such as this one, that involve herbicide exposure. See McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board will therefore analyze the possibility of entitlement to service connection for both of the Veteran's claimed disabilities on a direct basis. With regard to the first Hickson element, medical evidence of a current disability, the Veteran has been diagnosed with a number of a number of skin conditions, including dermatitis, tinea pedia, hyperhidrosis, seborrheic dermatitis, epidermoid cysts, and cherry angiomas. The Veteran has been diagnosed with a number of genitourinary conditions, including scrotal varices, orchitis, epidimyitis, dermatitis, spermatocele, and hypogonadism. Accordingly, the first Hickson element, medical evidence of a current disability, is met with respect to both of the Veteran's claimed conditions. With respect to the second Hickson element, the Veteran served in Vietnam during the Vietnam era and thus, as noted above, his in-service exposure to herbicides is conceded. Furthermore, the Board observes that the Veteran received treatment in-service for a number of concerns that are arguably related to his currently-claimed conditions. For example, the Veteran was treated for an erythematous eruption on the shaft of his penis in September 1970. In February 1972, the Veteran was treated for a growth on the right side of his face, which was thought to have been a boil related to an iron deficiency; an impression of "abscess" was entered. In November 1972, a physician noted that the Veteran was status-post gonorrhea. The second Hickson element is therefore met as to an in-service injury or disease with respect to both of the Veteran's claims. Regarding the third Hickson element, medical evidence of nexus, the Board will first address the nexus opinion concerning the Veteran's claimed skin disorder. The Veteran received a VA examination in January 2012, at which time the examiner opined that the Veteran's skin conditions were less likely than not due to the Veteran's military service, including his exposure to herbicides. As a rationale for this opinion, the examiner noted that the Veteran's military entrance examination showed a negative history for skin conditions, and no skin conditions were noted on examination. The examiner noted that the Veteran was treated in January 1972 for abscesses of both buttocks; these abscesses resolved. The Veteran's November 1972 separation examination noted a history of a right buttock abscess only, and no additional skin conditions were noted on examination. A May 1973 dermatological examination indicated that the Veteran had hyperhidrosis of the hands and feet with an otherwise normal skin and nail examination. An April 1996 record indicated that the Veteran had various diagnoses for fungal infections of the nails (onychomycosis, dermatophytes, and dermatomycosis). The January 2012 examiner observed no references to treatment for these conditions during the Veteran's active duty service. Additionally, the examiner found that these conditions were not themselves by nature related to herbicide exposure. The examiner noted that the Veteran had been diagnosed with seborrheic dermatitis, which, the examiner observed, is an actinic condition caused by the normal aging process. Similarly, the Veteran's cherry angiomas of the trunk and extremities were benign and related to the normal aging process. The examiner noted that the Veteran's various diagnoses with tinea were all fungal in nature, and such infection can occur secondary to heat and moist environments, or in individuals with immunity problems. The examiner observed that all of the Veteran's fungal infections were treated and resolved, but they tended to recur. The examiner noted that the Veteran's eczema and psoriasis were treated and resolved, but also tended to recur. The examiner noted that the Veteran's epidermoid cyst and varices were normal conditions in adults. Other than the Veteran's abscess, all of the Veteran's conditions were diagnosed many years after the end of his military service. Abscesses were diagnosed by history only. Upon review of all of this evidence, the examiner concluded that none of these skin conditions were by nature related to herbicide exposure or other incident of military service. The Board will next address the nexus opinion concerning Veteran's claimed genitourinary disorder. The Veteran received a VA examination in January 2012, at which time the examiner found that the Veteran's various conditions were less likely than not related to incidents of the Veteran's active duty military service, including the gonorrhea infection that was diagnosed and treated in service, the groin injury, or the Veteran's exposure to herbicides. Instead, the examiner noted that the mumps that the Veteran had as a child was a strong possible cause of the Veteran's infertility because evidence suggested that if mumps involved a testicle, sterility of the involved testicle typically followed. The examiner noted that the Veteran's gonorrhea was only remotely possibly the cause of infertility because the Veteran was treated with a full recovery from the infection shortly after contracting the infection, and several subsequent military examinations documented the Veteran's recovery from that infection. The examiner noted that the lack of active duty symptoms, treatment, or post-military diagnosis with genital disease is inconsistent with service-incurred infertility or other genitourinary condition. Furthermore, the examiner noted that records until February 2001 were negative for any history, treatment, examination, or diagnosis with any genital or urological conditions. To the extent that the Veteran himself believes that his disorders are related to military service, the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms such as genitourinary pain and observing a rash on his skin). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With this said, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, namely, the etiology of skin conditions and genitourinary conditions, the issue of causation of such an ailment is a determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, although the Board has carefully considered the lay contentions of record from the Veteran and others suggesting that his disabilities are related to his military service, the Board ultimately affords the weight of the objective medical evidence of record, which fails to find a connection between the Veteran's conditions and his military service, with greater probative weight than the lay opinions of record. Moreover, and while not being outcome-determinative, the Board emphasizes that continuity of symptomatology, in this instance, does not fill the nexus or chronicity void. In light of the above, the Board finds that the probative evidence of record does not demonstrate a nexus between the Veteran's claimed conditions and active duty military service, and it finds that the third Hickson element has not been met. In reaching this determination, the Board 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 not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). These benefits sought on appeal are accordingly denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same disability or the same manifestation of a disability, under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). VA received the Veteran's claim for an increased rating for his scar in September 2004. Effective October 23, 2008, VA revised the regulations for evaluating skin disabilities. VA's General Counsel has held that when a law or regulation changes during the pendency of a claim for an increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the Veteran had prior to the enactment of the new rule. See VAOPGCPREC 7-2003 (Nov. 19, 2003). If the revised version of the regulation is more favorable to the veteran, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and after, the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The new criteria only apply to claims filed on or after October 23, 2008, or if a request is made by a veteran for review under these clarified criteria who was previously rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Inasmuch as the Veteran's claim was received before October 23, 2008 and he has not requested review under the new criteria, the Board will only consider the criteria in effect before October 23, 2008. The Veteran's scar is rated as 10 percent disabling under Diagnostic Code 7899-5323. Diagnostic Code 7899 identifies skin disabilities that are not specifically listed in the schedule, but that are instead rated by analogy to similar disabilities under 38 C.F.R. § 4.118. See 38 C.F.R. §§ 4.20, 4.27 (2012). Diagnostic Code 5323 applies to muscle injuries to Group XXIII, which controls movements of the head. In other words, the Veteran's scarring of the neck has been rated as analogous to a muscle injury of the head. The Board notes that the Veteran's 10 percent disability evaluation under this Diagnostic Code has been in effect since December 1972. This rating is thus protected under 38 C.F.R. § 3.951 and will not be reduced. See 38 C.F.R. § 3.951(b) (2012); Murray v. Shinseki, 24 Vet. App. 420 (2011). The following discussion will consider whether the Veteran is entitled to a greater rating under this Diagnostic Code or whether additional Diagnostic Codes are applicable. Diagnostic Code 7800 applies to disfigurement of the head, face, or neck, and it is rated as follows: 10 percent: With one characteristic of disfigurement 30 percent: Visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement. 50 percent: Visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. 80 percent: Visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2012). The eight characteristics of disfigurement are as follows: (1) Scar 5 or more inches (13 or more cm.) in length; (2) Scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo- or hyperpigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. In evaluating whether any other Diagnostic Codes are potentially applicable, the Board notes that Diagnostic Codes 7801 and 7802 do not apply because the Veteran's scars are on his neck, and these codes apply to scarring elsewhere on the body. Diagnostic Code 7803 does not apply because the Veteran's scars are not unstable, and Diagnostic Code 7804 does not apply because the Veteran's scars are not painful on examination. Diagnostic Code 7805, applicable to "other" scars, does not apply, because the Veteran's scars are superficial neck scars, and this type of scarring is contemplated by Diagnostic Code 7800. Furthermore, as will be discussed in greater detail below, while the Veteran has reported subjectively that his scars have caused limited movement of his neck, and indeed, the Veteran's scar is currently rated on the basis of impaired muscle function, no medical professional has associated the Veteran's scarring with any limitation of motion or muscle impairment. Thus, the Board finds that while a greater rating under the existing Diagnostic Code 5323 applicable to muscle impairment is unavailable to the Veteran, as noted above, the Board will not disturb the Veteran's existing 10 percent disability rating under this Diagnostic Code. Turning to the medical evidence of record, as will be discussed in greater detail below, the Board first notes that the record is not entirely clear as to which of the Veteran's neck scars have been service connected. The July 1973 rating decision that granted service connection for the Veteran's neck scars described the relevant scars as "two scars, each measuring a half-inch" located "in the posterior neck area." The May 1973 examination of the Veteran's neck described his scars similarly. No photographic evidence is associated with this examination. Examinations performed in conjunction with this appeal note the presence of as many as six scars on the Veteran's neck (with four of those scars on the posterior neck), and as few as four scars on the Veteran's neck (with two of those scars on the "lower neck." Without medical evidence clearly indicating which of the Veteran's neck scars are the two that were first service connected in July 1973, and in order to afford the Veteran with the benefit-of-the-doubt, the Board will treat all of the Veteran's posterior neck scars as if they were all service-connected. The Veteran received a VA examination in May 2005. The examiner noted two scars on the Veteran's anterior neck, one 0.5cm x 3mm, and a second 1.0cm x 3mm. The examiner noted four scars on the Veteran's posterior neck, one 0.5cm x 2mm, a second 2cm x 0.5cm, a third 1.0cm x 4mm, and a fourth 0.5cm x 4mm. All scars were non-tender, non-adherent, and slightly hypopigmented without depression or elevation. The examiner observed no tissue or muscle loss. There was no bone, joint, or nerve damage, and the Veteran's muscle strength was normal. The Veteran received an additional VA examination in February 2010. The examiner noted four scars on the Veteran's neck: one 0.5cm x 0.2cm, a second also 0.5cm x 0.2cm, a third 1.0cm x 0.2cm, and a fourth 0.5cm x 0.2cm. The scars were not painful, and there was no adherence to the underlying tissue. The skin texture was normal, and there was no frequent loss of skin covering the scars, such as from ulceration or breakdown. There was no elevation or depression of the surface contour of the scars. The scars were superficial, and there was no inflammation, edema, or keloid formation. The scars were hypopigmented. There was no induration or inflexibility of the scar. The examiner noted that the Veteran complained of stiffness in his cervical spine, which the Veteran attributed to his scars. The Veteran received a VA examination in April 2010. The examiner noted that the Veteran had four small scars in the posterior neck area. Specifically, the examiner noted the following: a horizontal scar over the cervical spine measuring 1.0cm x 0.2cm, a 0.5cm x 0.2cm scar over the left occiput, and two 0.5cm x 0.2cm scars over the left cervical paraspinal musculature. None of the Veteran's scars were tender. There was no adherence to underlying tissue or abnormal texture. There was no skin breakdown or ulceration. All scars were superficial, and there was no keloid formation, inflammation, or edema. All scars were slightly lighter flesh-colored than the surrounding skin. No induration or inflexibility was noted. The examiner indicated that limited motion of the cervical spine was not a result of the Veteran's scars. The Veteran received an additional VA examination on January 24, 2012. The Veteran reported that his scars were not painful, and the examiner found the scars not to be unstable. The examiner found that the Veteran had four scars on his neck. The first scar was on the left superior neck near the hair line with induration (hardening), was white in color without atrophy, hypertrophy, breakdown, pain, or paresthesias, and the scar was 0.4cm x 0.1cm in size. The second scar was on the left lower neck with induration, white in color without atrophy, hypertrophy, breakdown, pain, or paresthesia, and the scar was also 0.4cm x 0.1cm in size. The third scar was on the right superior neck near the midline without induration, white in color without atrophy, hypertrophy, breakdown, pain, or paresthesia. The scar was 0.3cm x 0.1cm in size. The fourth scar was on the right lower neck near the midline with induration, white in color without atrophy, hypertrophy, breakdown, pain, or paresthesia. The scar was 0.8cm x 0.1cm in size. With regard to the first, second, and fourth scars, the examiner observed the surface contour to be elevated on palpation, and the examiner found the scars to be adherent to the underlying tissue. There was no abnormal pigmentation or texture to the skin of the head, face, or neck. The approximate total area of the head, face, and neck that was indurated and inflexible was 0.16 sq. cm. There was no gross distortion or asymmetry of the facial features or visible or palpable tissue loss. The examiner found that the scars did not result in limitation of function, and the Veteran had no other pertinent physical findings, conditions, or complications associated with his scarring. No photographs were taken, and the examiner found that the Veteran's condition was not disfiguring. Though the examiner found that the Veteran suffered from fatigue and pain with his head in the upright position, the examiner noted that such pain was due to the extensive degenerative disc disease in the Veteran's cervical spine, and not due to the Veteran's neck scarring. Applying the pertinent rating criteria to the facts in the instant case, the Board finds that no characteristics of disfigurement were noted before the January 2012 examination, and two characteristics of disfigurement were noted at the time of the January 2012 examination. Before January 2012, the Veteran's scars were noted to be, even collectively, less than 13cm in length and less than 0.6cm in width. Examiners found the Veteran's scars to be hypopigmented, but not in an area exceeding 39 sq. cm. No abnormal skin texture was noted, no underlying soft tissue was noted as missing, and inflexible, indurated skin was not noted in an area exceeding six sq. cm. No depression or elevation of the surface contour of the scars was noted, and the scars were not adherent to underlying tissue. The January 2012 examiner found three of the Veteran's scars to be elevated on palpation and adherent to the underlying tissue. No other characteristics of disfigurement were noted during the January 2012 examination. The Veteran's scars were fewer than 13cm in length and are less than 0.6cm in width. The Veteran's scars were hypopigmented, but not in an area exceeding 39 sq. cm. No abnormal skin texture has been noted, no underlying soft tissue has been noted as missing, and inflexible, indurated skin has not been noted in an area exceeding six sq. cm. Accordingly, with abnormal skin contour and adherent scarring noted at the time of the January 2012 examination, the Board finds that two characteristics of disfigurement were shown. As noted above, scarring with two or three characteristics of disfigurement warrants a 30 percent evaluation, and thus a 30 percent evaluation is appropriate as of the time of the January 2012 examination based on scarring of the neck. The Board finds that this award does not amount to impermissible pyramiding with the Veteran's existing, protected 10 percent evaluation under Diagnostic Code 7899-5323 because this Diagnostic Code rated the Veteran's scars on the basis of impaired muscle function with painful motion shown on the initial VA examination, rather than under the rating criteria for disfiguring scars. Extra-schedular Considerations In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. See 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate, and it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorders that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations are adequate. Referral for extra-schedular consideration is not warranted. Further inquiry into extra-schedular consideration is moot. See Thun, supra. The Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, in the present case, the Veteran has not explicitly raised the issue of TDIU. Likewise, the record does not reasonably raise the issue of TDIU. The Veteran has not argued, and the record does not reflect, that his service-connected scarring renders him unemployable. In light of the foregoing, the Board finds that entitlement to TDIU has not been raised. ORDER The claim for service connection for a low back disorder is reopened, and the appeal is allowed to this extent. Entitlement to service connection for skin disorder, other than jungle rot, is denied. Entitlement to service connection for genitourinary disorder is denied. A rating in excess of 10 percent for posterior neck scarring, based upon impaired muscle function and painful motion, is denied. From January 24, 2012, a separate 30 percent disability rating, but no higher, is granted for the Veteran's posterior neck scars based on disfigurement, subject to the laws and regulations governing the award of monetary benefits. REMAND Unfortunately, an additional remand of the Veteran's claims for service connection for bilateral hip disability and bilateral leg disability is warranted. Although the Board regrets the additional delay, further development of the record is required before the Board may render a decision in the instant case. Additionally, having reopened the Veteran's claim for service connection for a low back disorder, the Board must now determine whether the reopened claim may be granted on the merits. The Board finds that further development of the record is needed before it may appropriately consider the reopened claim. Once VA provides an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Daves v. Nicholson, 21 Vet. App. 46 (2007); cf. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Court has held that "a medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Court has also indicated that in evaluating the medical opinion evidence, the Board is to consider whether (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). With respect to the Veteran's claims for service connection for a bilateral hip disability and a bilateral leg disability, the Veteran was provided with an examination of these conditions in January 2012. The examiner indicated that the Veteran had shrapnel wounds to both buttocks, and the examiner opined that the Veteran's right and left hip conditions were at least as likely as not related to a "gunshot wound." The examiner did not, however, provide a diagnosis of the Veteran's hip disabilities, and the examination report suggests that the "hip condition" that the examiner was referencing was the Veteran's already-service-connected hip (buttock) scarring. In September 2012, upon review of this examination report, the AMC noted this deficiency, observing that the January 2012 examiner did not actually provide a diagnosis of the Veteran's condition. The AMC returned the examination and requested that the examiner indicate the current diagnosis associated with the Veteran's bilateral hips. In October 2012, a different VA clinician provided a supplemental opinion in response to the AMC's September 2012 request. In that supplemental opinion, a VA clinician noted that there was conflicting medical evidence presented in the January 2012 examination, and the clinician then attempted to clarify the January 2012 examiner's findings, but the clinician did not herself examine the Veteran, and the Board thus finds the conclusions of this examiner to be speculative in nature. Accordingly, on remand, the Veteran should be provided with an additional examination of his hips and legs to determine the nature and etiology of any hip or leg condition. With respect to the Veteran's reopened claim for service connection for a low back disorder, the Veteran was provided with an examination of his low back condition in January 2010. After examining the Veteran, the examiner found that it was less likely than not that the Veteran's low back condition was related to his military service. As a rationale for this opinion, the examiner stated that there was no evidence that the Veteran complained of back pain "other than [a] mention in 2005 electronic records of chronic back pain." This observation is not consistent with the other medical evidence of record. For example, a June 1994 radiographic report indicated that the Veteran had degenerative disc disease and mild lumbar scoliosis. Similarly, a July 1994 medical record indicates that the Veteran wore a back brace and a TENS unit to manage his back pain. On remand, the Veteran should be afforded with an additional examination of his low back disorder in order to obtain an additional etiological opinion. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and afford him with the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records that have not previously been obtained from identified treatment sources. 2. Then, forward the Veteran's claims file to a VA examiner of appropriate expertise. The claims file must be reviewed by the examiner and the supplemental report must state that such a review was undertaken. After examining the Veteran, the examiner should address the following questions: a) Does the Veteran suffer from a disability affecting the right hip, other than a scar (residual of a right buttock abscess) for which the Veteran is already service connected? If so, please provide a diagnosis for this disability and describe the nature of this disability. b) Does the Veteran suffer from a disability affecting the left hip? If so, please provide a diagnosis for this disability and describe the nature of this disability. c) Does the Veteran suffer from a disability affecting the right leg? If so, please provide a diagnosis for this disability and describe the nature of this disability. d) Does the Veteran suffer from a disability affecting the left leg? If so, please provide a diagnosis for this disability and describe the nature of this disability. e) Does the Veteran suffer from a low back disorder? If so, please provide a diagnosis for this disability and describe the nature of this disability. f) For any disability diagnosed pursuant to directives a) through d) above, please opine as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that the Veteran's disability is causally or etiologically related to the Veteran's active service, to include as a result of his presumed in-service herbicide exposure. A full rationale for the requested opinion(s) should be provided. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. See 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 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 2002 & Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs