Citation Nr: 1316178 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 05-10 802A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to an initial evaluation in excess of 30 percent for service-connected residuals of a right facial zygomatic fracture, to include pain and headaches. 3. Entitlement to an initial evaluation in excess of 30 percent for service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. 4. Entitlement to an effective date earlier than January 14, 2010, for the award of service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. 5. Entitlement to an effective date earlier than September 28, 2012, for the award of service connection for chronic sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran, his spouse, and H.J.C., Ph.D. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from July 1978 to November 1978 and from March 1981 to August 1992. He also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2004, March 2010, April 2012, and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2008 and October 2008, the Board remanded the claim of service connection for a stomach disorder to the agency of original jurisdiction (AOJ) for additional development. In March 2012, the Board granted service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. At that time, the Board also remanded the issue of entitlement to an initial evaluation in excess of 30 percent for service-connected residuals of a right facial zygomatic fracture, to include pain and headaches, to the AOJ for additional development. In the October 2008 and March 2012 decisions, the Board referred issues of entitlement to service connection for bilateral hearing loss and tinnitus to the AOJ for appropriate action. It does not appear that these issues have been addressed and they are again referred to the AOJ. In the March 2013 brief, the Veteran's representative also raised a claim of service connection for heart disease secondary to the Veteran's service-connected degenerative joint disease of the left ankle and acquired psychiatric disorder. This issue is also referred to the AOJ for appropriate action. The decision below addresses the rating claim pertaining to residuals of a right facial zygomatic fracture. The remaining claims on appeal are addressed in the remand that follows the Board's decision. FINDINGS OF FACT 1. Since the award of service connection, the Veteran's residuals of a right facial zygomatic fracture, to include pain and headaches, have not resulted in complete paralysis of the fifth cranial nerve. 2. Since the award of service connection, the Veteran's residuals of a right facial zygomatic fracture, to include pain and headaches, have not resulted in migraines with very frequent attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for service-connected residuals of a right facial zygomatic fracture, to include pain and headaches, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.124, 4.124a, Diagnostic Codes 8100, 8405 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased evaluations for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a evaluation will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores, 580 F.3d at 1270. The notice must be provided prior to an initial unfavorable decision by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, in this case, the Veteran is challenging the initial evaluation assigned following the establishment of service connection for residuals of a right facial zygomatic fracture. In this regard, once service connection is granted and an initial disability rating and effective date have been assigned, the claim is substantiated, and additional 5103(a) notice is not required. See Dingess, 19 Vet. App. at 490-91; Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In this case, the Veteran submitted his underlying service connection claim in January 2010. In a letter from the RO dated later that month, the Veteran was provided notice of the elements necessary to substantiate a claim for service connection and he was provided notice of how VA determines disability ratings and effective dates as per the holding in Dingess. Also, in a September 2012 letter from the RO, the Veteran was told that to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores, 22 Vet. App. at 37. The letters also advised the Veteran what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The letters also informed him what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the Veteran. The letters also provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation. Specifically, the Veteran was informed in the letters of types of evidence that might show such a worsening, including statements from a doctor containing the physical and clinical findings; results of laboratory tests or x-rays; the dates of examinations and tests; and statements from other individuals who were able to describe from their knowledge and personal observations in what manner the disability had become worse. The Board observes that any timing error with regard to the notice provided in the September 2012 letter was cured with the readjudication of the Veteran's claim in a supplemental statement of the case (SSOC) dated in December 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or SSOC, is sufficient to cure a timing defect). Consequently, a remand of this rating issue for further notification of how to the claim is not necessary. The duty to assist was also met in this case. The available service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. Pursuant to the Board's March 2012 remand, more recent VA treatment records were obtained by the RO. Additionally, VA examinations with respect to this claim were obtained, including VA examinations in September 2012 pursuant to the Board's March 2012 remand. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board specifically finds that the VA examination reports obtained from the examiners in this case are adequate as they were based on physical examinations and review of the Veteran's complete VA claims file, and they provide medical information needed to address the rating criteria relevant to this case. In particular, the VA examination reports contain descriptions of the symptomatology related to the service-connected residuals of a right facial zygomatic fracture and address the impact of the disability on the Veteran's employment and daily life. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to this issue has been met. 38 C.F.R. § 3.159(c)(4). Further, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95 (Apr. 7, 1995). Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis Evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the evaluation is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, as is the case here, where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's residuals of a right facial zygomatic fracture, to include pain and headaches, have been evaluated as 30 percent disabling under Diagnostic Code 8499-8405 since the award of service connection effective January 14, 2010. See 38 C.F.R. §§ 4.20, 4.27 (unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99"). The RO has concluded that the symptomatology associated with the Veteran's service-connected residuals of a right facial zygomatic fracture most closely approximate the criteria pertaining to neuralgia of the fifth (trigeminal) cranial nerve. Under that diagnostic code, a 10 percent rating is warranted for impairment equating to incomplete, moderate, paralysis of the fifth cranial nerve. A 30 percent rating is warranted for impairment equating to incomplete, severe, paralysis of the fifth cranial nerve. Lastly, a 50 percent rating is warranted for impairment equating to complete paralysis of the fifth cranial nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8405. As detailed in the Board's March 2012 remand, the service-connected disability includes pain and headaches. Thus, consideration of Diagnostic Code 8100 for migraine headaches is appropriate. That diagnostic code provides that a 50 percent rating is warranted for migraines with very frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable rating is warranted for migraines with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A review of the evidence of record reveals that the Veteran had a right facial zygomatic fracture during service in September 1986 while playing basketball. After service he sought treatment at the VA Medical Center (VAMC) in Philadelphia, Pennsylvania, for right temple pain. A history of an old right orbital fracture was noted. When the Veteran filed his claim in January 2010, he indicated that pain from the injury was becoming more chronic. In March 2010, the Veteran underwent VA examinations in connection with the claim. Both a "muscles" and "bones" examination were conducted by the same VA physician. The VA examiner noted an accurate medical history of the in-service right facial injury. The Veteran reported that he experiences pain in the area of the injury and headaches secondary to the pain. He described the pain as a dull aching pain that is intermittent and radiates to a right temporofrontal headache. The Veteran stated that he experiences pain and headaches four times per week and they last about an hour. He reported that he receives treatment from the Philadelphia VAMC and takes pain medication. Physical examination revealed no muscle injury with normal function. There was no nerve or tendon damage. The examiner noted that the fracture was causing pain in masseter muscle origin and masseter muscle activities such as chewing. The fracture was also causing temporal right-sided headaches. There was no bone deformity other than a slight depression in the right zygomatic arch. A CT scan showed sinus disease. The examiner noted that the Veteran worked fulltime in air condition repair. Over a one year period, he missed two weeks of work due to severe headaches. The diagnosis was right facial zygomatic arch fracture. The examiner found that the effects of the disability had no effect or a mild effect on the Veteran's usual daily activities. In May 2010, the Veteran stated that his symptoms were more consistent with complete paralysis of the facial nerve for a 50 percent rating rather than the 30 percent rating. VA treatment records dated in 2010 show continued treatment for complaints of headaches. In May 2011 statements from M.M. and N.S., who are co-workers of the Veteran, they indicated that they witness the Veteran experiencing severe headaches that cause discomfort and interfere with his work. The Veteran underwent additional VA neurologic examination in May 2011. The examiner reviewed the claims file and noted an accurate medical history. The Veteran reported similar complaints to those made at the March 2010 examinations. As to the headaches, the examiner noted that they occur weekly and that most of the attacks are prostrating. Physical examination revealed that the Veteran's cranial nerves were intact. He had increased sensitivity to pinprick and light touch in the region from the right zygomatic arch running along the distal edge of the right zygomatic bone. The Veteran also had complaints of pain in this area that is exacerbated by chewing. The examiner noted that the Veteran worked fulltime in air condition repair. Over a one year period, he missed four weeks of work due to severe headaches. The examiner provided a diagnosis of migraine headaches with residual face pain secondary to trauma. At a November 2011 Board hearing, the Veteran testified that his service-connected disability resulted in pain and headaches. He indicated that these problems affected his life, including his ability to work. In a September 2012 statement, co-worker L.T. recalled that the Veteran had been complaining about headaches ever since they met. The Veteran was relaying that the headaches were severe and it appeared that they were affecting him during work. In October 2012, the Veteran's wife stated that the Veteran repeatedly has extreme migraine headaches throughout the workday. She indicated that the Veteran lays down at home as much as possible because of the headaches. VA treatment records dated in 2011 and 2012 reflect continued treatment for complaints of headaches. His medication was changed in November 2012 due to worsening symptoms exacerbated by his sinus complaints. Pursuant to the Board's March 2012 remand, the Veteran was afforded another VA neurologic examination in September 2012. The examiner reviewed the claims file and noted an accurate medical history. A diagnosis of migraine headaches was provided. Symptoms included constant head pain, pulsating or throbbing head pain, pain on both sides of the head, sensitivity to light, and sensitivity to sound. The Veteran's typical head pain is constant and on both sides of the head. Significantly, the examiner indicated that the Veteran does not have characteristic prostrating attacks of migraine headache pain and, as such, does not have very frequent prostrating and prolonged attacks of migraine headache pain. The examiner noted that the Veteran's headaches impact his work because he has to take breaks four times a day to lie down. In response to questions asked by the Board in the March 2012 remand, the VA examiner found that it is more likely than not that the Veteran's sinus condition is related to his zygomatic fracture. Notably, the examiner found that the Veteran's headaches have not been characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The examiner explained that the Veteran is currently employed and is productive. The examiner did indicate that the Veteran's headache symptoms do cause interference with economic adaptability as they interfere with his ability to perform the duties to his fullest potential because he needs frequent breaks. In consideration of the evidence of record, the Board initially finds that the evidence does not show that the Veteran's service-connected residuals of a right facial zygomatic fracture, to include pain and headaches, have resulted in impairment equating to complete paralysis of the fifth cranial nerve at any point since the award of service connection. The VA treatment records and examination reports do not reflect complete paralysis of the nerves affected by the right facial zygomatic fracture. The most probative evidence in this regard is the May 2011 VA examination that expressly addressed this aspect of the claim. Significantly, the examiner determined that all cranial nerves were intact, which is not suggestive of complete paralysis. Sensory problems were found on examination in the area of the fracture, but there was no indication that the problems represented complete paralysis. A 30 percent for neuralgia of the fifth cranial nerve contemplates incomplete, severe, paralysis. Additionally, neuralgia also contemplates associated pain. See 38 C.F.R. § 4.124. Thus, the initially assigned 30 percent rating appropriately compensates the Veteran for the symptomatology resulting from neuralgia as a residual of the right facial zygomatic fracture. The only evidence indicating that the disability equates to complete paralysis of the facial nerve is the Veteran's own opinion as set forth in his May 2010 statement. The Board accords the opinion little evidentiary value as it is not consistent with the examination in May 2011 by which the VA examiner physically examined the Veteran and administered objective sensory testing. The level of paralysis of a nerve is not typically what would be expected that a lay person could provide a probative opinion on as it is not necessarily observable symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). In any case, the Board finds that the disability has not manifested in complete paralysis based on the results of the May 2011 VA examination that was conducted by a medical expert and the absence of any medical evidence in the record supportive of the Veteran's opinion. Consequently, an initial rating in excess of 30 percent is not warranted for residuals of a right facial zygomatic fracture when evaluated as neuralgia. See 38 C.F.R. § 4.124a, Diagnostic Code 8405. Next, the Board finds that the Veteran's Board initially finds that the evidence does not show that the Veteran's service-connected residuals of a right facial zygomatic fracture, to include pain and headaches, have resulted in migraines with very frequent attacks productive of severe economic inadaptability at any point since the award of service connection. Based on the medical evidence and the Veteran's statements, the disability has resulted in headaches that cause impairment. However, the impairment is contemplated by the initially assigned 30 percent rating. The Board remanded the claim in March 2012 to specifically have the question answered as to whether the Veteran's headaches are manifested by the type of symptomatology reflective of a 50 percent rating under Diagnostic Code 8100. The September 2012 VA examiner reviewed the claims file, examined the Veteran, and determined that his headaches have not been characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The manifestation essential for a higher rating that is not shown by the evidence is severe economic inadaptability. The examiner explained that the Veteran's headaches have caused interference with economic adaptability as they interfere with his ability to perform the duties to his fullest potential because he needs frequent breaks. Nevertheless, the interference does not arise to the severe level contemplated by the rating criteria according the examiner. The remainder of the medical evidence does not support a finding that a higher rating is warranted. The May 2011 VA examiner noted that the Veteran's headaches were mostly prostrating, but there was no indication that they were productive of severe economic inadaptability. The Veteran, his wife, and co-workers have submitted statements and provided hearing testimony reflecting that the Veteran's headaches affect his ability to work. This is not inconsistent with the September 2012 VA examiner's opinion. The examiner considered the Veteran's report of headaches affecting his work and found that the Veteran needed to take breaks. Nevertheless, the examiner pointed out the Veteran was productive at work despite the necessity of breaks. The Board does not equate the Veteran being productive at work as severe economic inadaptability. The Board also finds that the lay statements from the Veteran and others are representative of the VA examiner's findings. In consideration of this evidence, the Board concludes that an initial rating in excess of 30 percent is not warranted for residuals of a right facial zygomatic fracture when evaluated as migraine headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board has also considered whether a higher or separate rating is warranted under any other potentially applicable diagnostic code. In the Veteran's case, his facial pain, sensory problems, and headaches are appropriately evaluated under Diagnostic Codes 8100 and 8405 for migraine headaches and neuralgia. Notably, separate disabilities arising from a single disease entity are to be rated separately. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Here, the Board does not find that separate ratings are warranted under Diagnostic Code 8100 and Diagnostic Code 8405 because doing so would amount to pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). Neuralgia and migraine headaches are both neurologic manifestations affecting the same body area. As indicated previously, neuralgia also contemplates the effects of pain. See 38 C.F.R. § 4.124. Thus, neuralgia and headaches should not be separately rated. The September 2012 VA examiner found that the Veteran's sinus condition is more likely than not related to his zygomatic fracture. While the claim was in remand status, in a December 2012 rating decision, the RO granted service connection for chronic sinusitis. The evaluation of that disability is not on appeal to the Board and the issue of chronic sinusitis is addressed further in the remand following the decision. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's residuals of a right facial zygomatic fracture have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The symptoms of his disability (facial pain, sensory problems, migraine headaches) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For the foregoing reasons, the Board finds that the claim for an initial rating in excess of 30 percent for residuals of a right facial zygomatic fracture, to include pain and headaches, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher initial rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial evaluation in excess of 30 percent for service-connected residuals of a right facial zygomatic fracture, to include pain and headaches, is denied. REMAND The Board finds it necessary to remand for additional development and consideration the issues of entitlement to service connection for a stomach disorder, entitlement to an initial evaluation in excess of 30 percent for service-connected acquired psychiatric disorder, to include PTSD and major depressive disorder, entitlement to an effective date earlier than January 14, 2010, for the award of service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, and entitlement to an effective date earlier than September 28, 2012, for the award of service connection for chronic sinusitis. In the April 2012 rating decision, the RO implemented the Board's March 2012 grant of service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. The RO assigned a 30 percent rating for the disability effective January 14, 2010. In the December 2012 rating decision, the RO granted service connection for chronic sinusitis. For this disability, the RO assigned a 50 percent rating effective September 28, 2012. In the March 2013 brief, the Veteran's representative disagreed with the effective date that was assigned for chronic sinusitis. The representative also disagreed with the effective date and disability rating assigned for the acquired psychiatric disorder. The Veteran's brief represents a notice of disagreement (NOD) with the April 2012 and December 2012 rating decisions as to these three issues. See 38 C.F.R. § 20.201. An NOD must be filed with the VA office from which the Veteran received notice of the determination being appealed, which would be the Philadelphia RO. See 38 C.F.R. § 20.300. This is so unless the records have been transferred to another VA office. Id. Although the regulation seems to indicate that an NOD must be filed at the RO level, as the Board currently has jurisdiction over the records, the Board will accept the NOD as timely filed as it was received by VA within one year of the rating decisions. See 38 C.F.R. § 20.302(a). An SOC is required when a claimant protests a determination. 38 C.F.R. § 19.26. To date, no SOC has been furnished regarding the April 2012 and December 2012 decisions. Therefore, the issuance of an SOC is required regarding the three issues identified in the March 2013 NOD. The Board must remand the issues for such an action. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). In regard to the issue of entitlement to service connection for a stomach disorder, the Board remanded the claim in April 2008 and October 2008 for additional development and consideration. The Appeals Management Center (AMC) continued to deny the claim in a December 2009 SSOC. The claim was never recertified to the Board for review and the Veteran has not submitted any statements concerning the claim, but there is no indication he has withdrawn his appeal as to this claim. A VA examination was conducted in August 2009 in connection with the claim. The diagnosis was status post surgery for umbilical hernia with minimal residuals. The examiner noted that the Veteran did not have any other stomach problems at the time of the examination. As to the origin of the disorder, the examiner indicated that an opinion could not be given without resorting to mere speculation. This was so because the Veteran reported to the examiner that he had surgery for umbilical hernia during service, but the examiner could only find a notation that the Veteran had such surgery when he was eleven years of age. The examiner indicated that the entrance examination could not be located to verify the authenticity of the report stating the surgery was done at the age of eleven. The Veteran's service treatment records do include the entrance examination report from his first period of service. A history of a herniorraphy (umbilical) at age 11 was noted on the report. Additionally, an umbilical surgery scar was found on physical examination. Therefore, the Veteran's diagnosed status post surgery for umbilical hernia pre-existed service. As the service connection claim for this specific disability is one based on the theory of aggravation, the Board finds that the claim must be remanded for another VA examination. An opinion must also be obtained that addresses whether the Veteran's pre-existing umbilical hernia underwent an increase in severity during either period of active service and, if so, whether any increase was clearly and unmistakably (i.e., undebatable) due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The service treatment records contain several entries regarding gastrointestinal and stomach complaints by the Veteran. Included are multiple diagnoses of gastroenteritis. Accordingly, if a current diagnosis pertaining to the stomach is identified during the VA examination (other than umbilical hernia), an opinion should be provided as to whether any identified stomach disorder had its clinical onset during, or is otherwise related to, his active military service. It appears that the Veteran continues to receive regular treatment at the Philadelphia VAMC. Updated treatment records should be obtained in light of the remand. Finally, a significant amount of evidence has been associated with the claims file since the December 2009 SSOC was issued for the stomach disorder claim. When the claim is readjudicated on remand, all evidence added to the record since that time must be considered. See 38 C.F.R. § 19.31; Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, these issues are REMANDED for the following actions: 1. Prepare a SOC in accordance with 38 C.F.R. § 19.29 regarding the issues of entitlement to an initial evaluation in excess of 30 percent for service-connected acquired psychiatric disorder, to include PTSD and major depressive disorder, entitlement to an effective date earlier than January 14, 2010, for the award of service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, and entitlement to an effective date earlier than September 28, 2012, for the award of service connection for chronic sinusitis. This is required unless the matters are resolved by granting the full benefits sought, or by the Veteran's withdrawal of the NOD. If, and only if, the Veteran files a timely substantive appeal should any of these three issues be returned to the Board. 2. Obtain the Veteran's more recent treatment records (since December 2012) from the Philadelphia VAMC and associate the records with the claims folder. 3. Thereafter, schedule the Veteran for a VA examination of his stomach. The examiner must be given full access to the Veteran's complete VA claims file and Virtual file for review. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and Virtual VA file were reviewed. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. The examiner should identify the Veteran's current stomach disorders. Based on a review of the evidence of record, the examiner should provide an opinion as to the following: (a) For the Veteran's umbilical hernia (and any residuals thereof), which is considered to be a stomach disorder that pre-existed service: (i) What is the likelihood (likely, unlikely, at least as likely as not) that the disability increased in severity during either period of active military service? (ii) If there is a likelihood of at least as likely as not, was the increase in severity clearly and unmistakably (i.e., undebatable) due to the natural progression of the disease? (b) For any stomach disorder other than pre-existing umbilical hernia, what is the likelihood (likely, unlikely, at least as likely as not) that the disability had its clinical onset during, or is otherwise related to, the Veteran's periods of active military service? In rendering the requested opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue of entitlement to service connection for a stomach disorder. If the benefit sought is not granted, furnish the Veteran and his representative with an SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. The SSOC should include consideration of all evidence associated with the claims file since the December 2009 SSOC. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. 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 case 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. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs