Citation Nr: 1323892	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  04-13 291	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to an effective date earlier than April 23, 1981, for the grant of service connection for folliculitis barbae of the face and neck.

2.  Entitlement to an effective date earlier than December 23, 1998, for the grant of service connection for posttraumatic stress disorder (PTSD). 

3.  Entitlement to an effective date earlier than June 20, 2000, for the grant of service connection for irritable bowel syndrome (IBS).

4.  Entitlement to service connection for a cervical spine disorder. 

5.  Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a lung disorder, to include as secondary to gastroesophageal reflux disease (GERD). 

6.  Entitlement to service connection for GERD.

7.  Entitlement to an increased rating for a lumbar spine disorder, diagnosed as chronic lumbar strain superimposed on degenerative disc disease and disc fragment at L3-L4 and foraminal stenosis at L4-L5, with right nerve involvement, currently evaluated as 20 percent disabling.  

8.  Entitlement to an initial increased rating for a left shoulder joint disorder, diagnosed as chronic synovitis of the left (non dominant) acromioclavicular joint with rotator cuff impingement, tendonitis of the glenohumeral joint, status post Mumford procedure, and degenerative joint disease, evaluated as 10 percent disabling from December 13, 1996, to March 1, 1999, and as 20 percent disabling thereafter. 

9.  Entitlement to an initial increased rating for a residual surgical scar of the left shoulder, evaluated as noncompensably disabling from June 14, 1999, to May 19, 2003, and as 10 percent disabling thereafter. 

10.  Entitlement to an initial increased rating for a bilateral foot disorder, diagnosed as muscular strain of both feet superimposed on chronic pes planus with intermittent muscle cramps, evaluated as 10 percent disabling from December 13, 1996 to February 19, 2004 and as 30 percent disabling thereafter. 

11.  Entitlement to an initial increased rating for IBS associated with PTSD, evaluated as 10 percent disabling. 

12.  Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to May 20, 2003.


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran had active service from April 1974 to April 1978, with subsequent Reserve service through 1995, including verified active duty for training (ACDUTRA) from August 1983 to December 1983. 

This case has a long and complex procedural history, arising from multiple rating decisions of the Portland, Oregon, Department of Veterans Affairs Regional Office (RO).  

In September 2006, the Veteran testified at a Board hearing before a Veterans Law Judge, who subsequently remanded the case in June 2007 and March 2010.  Thereafter, the Veterans Law Judge was appointed Acting Chairman of the Board and, thus, was no longer available to consider the pending appeal.  Accordingly, VA sent the Veteran an April 2012 letter advising him of his right to another Board hearing.  See 38 U.S.C.A. § 7107(b) (2002) (noting that due process requires that a Veterans Law Judge who conducts a hearing on appeal participate in any subsequent decision regarding that appeal).  The Veteran expressed his desire for such a hearing and subsequently testified at a September 2012 proceeding before the undersigned.  At that Board hearing, the Veteran submitted additional evidence in support of his claims, accompanied by a waiver of initial review by the agency of original jurisdiction (AOJ).  38 C.F.R. § 20.1304 (2012).  He subsequently provided additional written argument, again waiving his right to initial evidentiary review by the AOJ.  Id.

Significantly, both in his transcribed hearing testimony and in written documents of record, the Veteran has indicated that he is unemployed and has not worked since June 30, 2000.  See Board Hearing Transcript (Tr.) at 18.  He has further maintained that his joblessness is due, in part, to the service-connected lumbar spine, left shoulder, and bilateral foot disorders for which he is seeking increased compensation.  Id. at 19, 30-31.  Moreover, the record reflects that the Veteran also has been pursuing disability benefits through the Social Security Administration (SSA) for "a combination of impairments, including . . . degenerative disc disease and left shoulder degenerative joint disease."  See February 14, 2008, United States District Court Order Granting SSA Commissioner's Motion to Remand for Further Proceedings at 2.  The Board interprets the Veteran's lay statements and the SSA documentation as tantamount to a request for TDIU.  

Although the record reflects that TDIU has already been granted during the pendency of this appeal, the award only covers the periods from May 20, 2003, to June 13, 2005, and from August 1, 2005, to the present.  Moreover, while temporary total disability ratings have also been granted for surgery warranting convalescence pursuant to 38 C.F.R. § 4.30, those awards only encompass the periods from June 14, 1999, to September 30, 1999, and from June 14, 2005, to July 31, 2005.  Accordingly, the Board finds that a request for TDIU remains pending for the remainder of appeals period, i.e., the period prior to May 20, 2003, excluding when the Veteran was in receipt of a temporary total rating under 38 C.F.R. § 4.30.  

Furthermore, while cognizant that a request for TDIU has not been expressly certified on appeal, the Board notes that such a request, "whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or . . . as part of a claim for increased compensation."  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  As such, the Board has jurisdiction to consider the issue of TDIU in tandem within the increased rating claims on appeal.  

The issues of service connection for a lung disorder and GERD; an increased rating for a lumbar spine disorder; initial increased ratings for a left shoulder joint disorder, a left shoulder scar, a bilateral foot disorder, and IBS; and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC.

[The Veteran's Motion to Revise a June 2012 Board Remand based on clear and unmistakable error (CUE) and his appeal regarding entitlement to a clothing allowance are addressed in separate Board decisions.]


FINDINGS OF FACT

1.  Service connection for folliculitis barbae of the face and neck was granted in a September 1999 rating decision, effective April 23, 1981.  

2.  The Veteran submitted an informal claim of entitlement to service connection for folliculitis barbae of the face and neck (then claimed as facial skin condition), which was received at the RO and date-stamped on August 13, 1979.  

3.  The Veteran's folliculitis barbae had its onset in service and was present when he submitted his informal claim for service connection on August 13, 1979.   

4.  The Veteran did not fail to respond to any evidentiary request from VA in connection with his informal claim dated August 13, 1979; as such, that claim for service connection was not abandoned and remained pending.

5.  Service connection for PTSD was granted in a May 2000 rating decision, effective December 23, 1998.   

6.  No communication that could be construed as a formal or informal claim for service connection for PTSD was received at the RO prior to December 23, 1998.   

7.  Service connection for IBS was granted in a November 2003 rating decision, effective May 20, 2003.

8.  A January 2004 rating decision found error in the initial effective date of service connection assigned for the Veteran's IBS and granted an earlier effective date of June 20, 2000.   

9.  No communication that could be construed as a formal or informal claim for service connection for IBS was received at the RO prior to June 20, 2000.   

10.  The Veteran's current cervical spine disorder, diagnosed as degenerative arthritis of the cervical spine, had its onset in service and has been manifested by continuous and progressively worsening symptoms since that time.  

11.  An unappealed August 1985 rating decision denied entitlement to service connection for a left lung disorder.

12.  The evidence received since the August 1985 rating decision is new and material as it relates to an unestablished fact necessary to substantiate the claim.


CONCLUSIONS OF LAW

1.  An effective date of August 13, 1979, for the grant of service connection for folliculitis barbae of the face and neck is warranted.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012).

2.  An effective date earlier than December 23, 1998, for the grant of service connection for PTSD is not warranted.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012).

3.  An effective date earlier than June 20, 2000, for the grant of service connection for IBS is not warranted.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012).

4.  Service connection for a cervical spine disorder, diagnosed as degenerative arthritis of the cervical spine, is warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

5.  The unappealed August 1985 rating decision that denied service connection for a left lung disorder is final.  38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1984).  

6.  The evidence received since the August 1985 rating decision is both new and material, and the claim of entitlement to service connection for a left lung disorder is accordingly reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (2012).  VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The VCAA notice requirements apply to all five elements of a service-connection claim:  Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).  

While mindful of the above notice requirements, the Board observes that the first and second issues on appeal arise from the Veteran's disagreement with the effective dates of service connection for his folliculitis barbae and PTSD.  Those effective dates were assigned in September 1999 and May 2000 rating decisions, which predated the enactment of the VCAA on November 9, 2000.  See Pub. L. No. 106-475, 114 Stat. 2096 (2000).  Significantly, however, the record reflects that the Veteran was subsequently provided with a VCAA notice letter, dated in July 2001.  That initial notice letter informed the Veteran of the evidence needed to substantiate his claims for earlier effective dates for folliculitis barbae and PTSD, while outlining his responsibilities, and those of VA, in obtaining such evidence.  A subsequent March 2006 letter provided additional notice of those VCAA criteria with respect to both the aforementioned issues and the claim for an earlier effective date of service connection for IBS.  The March 2006 notice letter also described in detail how VA assigns a disability rating and an effective date following the grant of service connection.  Therefore, the July 2001 and March 2006 letters collectively satisfied not only the original VCAA notice requirements but also the heightened requirements set forth in Dingess.  

Moreover, while the above letters were mailed to the Veteran following the initial adjudication of his earlier effective date claims, the Board finds that any prejudice arising from such late VCAA notice has been effectively cured by the subsequent readjudication of those claims in February 2009 and January 2012 Supplemental Statements of the Case (SSOCs).  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  In those SSOCs, the AOJ considered all of the pertinent evidence of record, including the clinical findings and lay argument that had been elicited on remand.  Accordingly, the Board finds that the delay in VCAA notice has neither deprived the Veteran of effective participation in the processing of his earlier effective date claims nor affected the essential fairness of the decision.  As such, VA's duty to notify under 38 C.F.R. § 3.159(b) has been effectively met with respect to those issues.

Similarly, VA's duty to assist has been effectively met with respect to the Veteran's earlier effective date claims such that no further assistance is necessary.  Through its initial development of the Veteran's appeal, and in accordance with the Board's prior Remands, the AOJ has obtained the Veteran's service treatment records and his post-service private and VA medical records.  The AOJ has also attempted to procure the Veteran's SSA records, but has been informed by that agency that such records are unavailable.  See Formal Finding of Unavailability of SSA Records dated October 26, 2010.  The Veteran has been duly apprised of that outcome and has responded by submitting the SSA records in his own possession.  He also has indicated that additional SSA documentation may exist in connection with a claim that has been pending in Federal District Court.  See Report of General Information dated September 20, 2010.  Significantly, however, the Veteran has not indicated, and the record does not otherwise suggest, that any of his SSA documentation is germane to his earlier effective date claims.  See Golz v. Shinseki, 590 F.3d. 1317, 1321 (2010) (noting that VA only has a duty to obtain SSA records that are relevant to a particular claim).  Moreover, neither the Veteran nor any other party has alleged that there are any other outstanding records relevant to his folliculitis barbae claim.  Accordingly, the Board finds that additional records development is not required with respect to those particular issues.  Furthermore, as the outcome of those issues rests on evidence that has already been associated with the Veteran's claims file, there is no need for a medical examination and or opinion.   

There also is no need to otherwise delay adjudication as the Board's latest Remand of the Veteran's earlier effective date claims has met with substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  As noted in the introduction, the Board remanded those claims, and the other issues on appeal, so as to honor the Veteran's request for an additional Board hearing.  Such a hearing was conducted in September 2012 before the undersigned, who set forth the issues on appeal at the start of the proceeding, then focused on the elements necessary to substantiate the claims and sought to identify any further development that was required.  These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board).  Significantly, the Veteran has not contended, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise committed prejudicial error, either by failing to fully explain the above-captioned issues or by neglecting to suggest the submission of evidence that may have been overlooked.  Additionally, the transcript of that proceeding reflects that the Veteran waived initial AOJ consideration of the new evidence presented therein.  He also waived AOJ consideration of the additional clinical records and argument he later submitted in support of his appeal.  As such, the Board is satisfied there has been substantial compliance with the terms of its June 2012 Remand.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet App. 97, 105 (2008) (discussing situations when it is acceptable, instead, to have "substantial" compliance, even if not "exact," "total" or "complete" compliance, per se).

As for the evidence already of record at the time of that last Remand, the claims file reflects that such evidence, comprised of lay statements, private and Federal medical records, and VA examination findings, was duly considered by the AOJ in its January 2012 Supplemental Statement of the Case (SSOC).  In that readjudication, the AOJ essentially determined that none of the evidence submitted since the previous March 2010 Remand was pertinent to the Veteran's earlier effective date claims.  With respect to that determination, the Board observes that "[t]here is a presumption of regularity that public officers perform their duties 'correctly, fairly, in good faith, and in accordance with law and governing regulations.'"  Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)).  Courts presume that, "'in the absence of clear evidence to the contrary,'" public officers have "'properly discharged their official duties,'" Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).  Therefore, absent any showing to the contrary, the Board presumes the AOJ has met its obligation to consider all evidence added to the record since the previous adjudication of the Veteran's claims on appeal.  See 38 C.F.R. § 19.31 (2012).  Significantly, neither the Veteran nor his representative has alleged or shown that this particular duty has not been met.  Thus, the presumption of regularity has not been rebutted and the Board concludes that there has been substantial compliance with its prior Remand directives, including its instruction to readjudicate the Veteran's claim in the October 2012 SSOC.  See Stegall, 11 Vet. App. at 271.  

In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied with respect to the claims on appeal.  Thus, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

Finally, as the Board is granting the Veteran's claim for service connection for a cervical spine disorder in full, reopening his claim for service connection for a lung disorder, and remanding that reopened claim and the other issues on appeal, no further discussion of the duties to notify and assist is required in this case.  

II.  Earlier Effective Dates

The Veteran seeks earlier effective dates for the awards of service connection for folliculitis barbae, PTSD, and IBS.  

The assignment of effective dates of VA disability awards is governed by 38 U.S.C.A. § 5110 and its implementing regulation, 38 C.F.R. § 3.400.  Those provisions direct that, as a general rule, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012).  For service connection claims, the effective date shall be the day after separation from service or the date entitlement arose, if a claim is received within one year of separation from service; otherwise the general rule shall apply.  38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012).  

The term "claim" in this context refers to a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief of entitlement, to a VA benefit.  38 C.F.R. § 3.1(p) (2012).  Moreover, an informal claim may encompass a communication from the claimant himself, his duly authorized representative, a member of Congress, or some person acting as next friend of a claimant who is not sui juris.  Such a claim must identify the benefit sought.  

Significantly, for purposes of this appeal, an informal claim may be inferred from a report of VA examination or treatment, but only when the report pertains to a disability for which service connection has been already established or when a claim specifying the benefit sought is received within one year of the date of such examination or treatment.  38 U.S.C.A. § 501 (2012); 38 C.F.R. § 3.157(b) (2012).  In other words, a VA examination or treatment report, standing alone, will not constitute an informal claim for an original award of service connection.  See id; see also MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical records had not previously been determined to be service-connected); Brannon v. West, 12 Vet. App. 32, 35 (1998) (noting that "the mere presence of the medical evidence does not establish an intent on the part of the [claimant] to seek . . . service connection . . . ").

Also critical in the instant case is VA's own requirement, upon receipt of an informal claim for which a formal claim has not already been filed, to forward an application for VA benefits (VA Form 21-526) to the claimant for execution.  If received within one year after the date it was sent to the claimant, that signed application will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012); Norris v. West, 12 Vet. App. 413 (1999).

Conversely, where evidence requested in connection with an original claim, whether formal or informal, is not furnished within one year of the date of request, the claim will be considered abandoned.  38 C.F.R. § 3.158(a) (2012).  Where a prior claim has been abandoned, the claimant must file a new claim, and the effective date of service connection will not be earlier than the date of the receipt of the new claim, or the date entitlement arose, whichever is later.  38 C.F.R. §§ 3.158, 3.400(b) (2012).

Here, for the reasons set forth below, the Board finds that the evidence of record is sufficient to award an earlier effective date of service connection for the Veteran's folliculitis barbae, but not for his PTSD or IBS.  

      A.  Folliculitis Barbae

By way of history, the Board notes that service connection for folliculitis barbae was established in a September 29, 1999, rating decision, which determined that a previous November 1982 rating decision erred in denying such an award of VA benefits.  In recognition of that error, the September 1999 rating decision granted service connection for folliculitis barbae, effective April 23, 1981, which purportedly corresponded to the date of receipt of the Veteran's initial claim for that disorder.  

In essence, the September 1999 rating decision relied on the findings of the November 1982 adjudication, which construed a letter, date-stamped April 23, 1981, as the Veteran's informal claim for folliculitis barbae.  Significantly, however, the November 1982 rating decision also acknowledged that the Veteran had submitted an earlier VA benefits request, which had been received at the RO on July 3, 1979.  Moreover, the November 1982 rating decision noted that the RO had responded to the Veteran's initial filing with a July 18, 1979, letter, asking him to specify the particular disabilities for which he was claiming benefits.  The November 1982 rating decision further noted that the Veteran's VA Form 21-526 had been returned to him on July 20, 1979, with a request for his signature.  However, the November 1982 rating decision determined that the Veteran had declined to respond to that request and, thus, had effectively abandoned any claims that would have otherwise remained pending.  

The Veteran disagrees with the November 1982 rating decision's interpretation, which has been accepted by the subsequent decision makers who have denied his earlier effective date claim.  Rather than failing to respond to the RO's July 1979 request for additional information, the Veteran states that he submitted an informal claim, dated-stamped in August 1979, which the RO in essence overlooked.  See Board Hearing Tr. at 32-33.  The Veteran further contends that this informal claim specified that he was seeking service connection for folliculitis barbae.  Id.

In weighing the merits of the Veteran's contentions, the Board recognizes that public officers, including RO decision makers, are presumed to have regularly discharged their official duties, which include properly accounting for all evidence and argument submitted in connection with a claim for VA benefits.  See Jennings v. Mansfield, 509 F.3d 1362, 1367 (Fed. Cir. 2007); Butler v. Principi, 244 F.3d. 1337, 1340 (2001); Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (discussing the presumption of regularity); Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992); accord United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926).  Moreover, this presumption of regularity remains intact unless a party offers clear evidence to the contrary.  See Jennings, 509 F.3d at 1367; Butler, 244 F.3d at 1340; Clarke, 21 Vet. App. at 133.  Thus, a party challenging the presumption must "produc[e] clear evidence that VA did not follow its regular . . . practices or that its practices were not regular."  See Clarke, 21 Vet. App. at 133.

While mindful of the above presumption, the Board has reason to conclude that, in the instant case, the RO did not take proper action upon receiving the Veteran's informal claim in August 1979.  

In this regard, the Board observes, first and foremost, that the Veteran's account of submitting such an informal claim is corroborated by the objective evidence of record.  Such evidence includes a copy of a VA Form 21-4138 (Statement in Support of Claim), signed by the Veteran on August 9, 1979, and date-stamped on August 13, 1979, which contains an explicit request that his service-connection "claim be amended to include [a] rash in the groin area and a facial skin condition."  See VA Form 21-4138, August 13, 1979.  

Tellingly, this informal communication from the Veteran does not appear to have been acknowledged by the RO at the time it was received.  Moreover, it does not appear have been considered in the November 1982 rating decision, or by any subsequent rating decision.  To the contrary, no one at the RO has ever responded to the Veteran's August 1979 VA Form 21-4138 by requesting that he complete a formal application (VA Form 21-526 ) in connection with his claim for a facial skin condition.  

The Board recognizes that, by the time that August 13, 1979, communication was received, the RO had already sent the Veteran a VA Form 21-526 in response to his initial July 1979 request for disability benefits.  As mentioned earlier, however, that initial request had not specified the particular benefits for which the Veteran was seeking VA compensation.  As such, it did not fully satisfy the requirements for an informal claim.  38 C.F.R. §§ 3.1(p), 3.155(a) (2012).  

In contrast, the Veteran's August 13, 1979, communication specified that he wished to obtain VA disability benefits for a facial skin condition.  The Board recognizes that the Veteran did not use the term "folliculitis barbae" in describing that condition, nor otherwise identify the particular disability for which he was seeking service connection.  Nevertheless, an informal claim need not expressly identify a precise diagnosis related to the VA benefits sought, but rather need only evidence a belief that entitlement to such benefits exists.  38 C.F.R. §§ 3.1(p), 3.155(a) (2012).  The August 13, 1979, statement clearly referenced symptoms related to the folliculitis barbae for which VA benefits were later granted.  As such, the Board finds that statement met the criteria for an informal claim for service connection for that disability.  

Having thus established that the Veteran submitted an informal application for folliculitis barbae on August 13, 1979, the Board finds that the RO had a concomitant duty to provide him with a new VA Form 21-526 for the purpose of formalizing that claim.  38 C.F.R. § 3.155(a) (2012); Norris v. West, 12 Vet. App. 413 (1999).  However, there is no evidence that the RO ever took such action.  As noted earlier, neither the November 1982 rating decision nor any other rating decision appears to have acknowledged the Veteran's August 13, 1979, informal claim. Accordingly, the Board finds that the presumption of administrative regularity has been rebutted with respect to that informal claim and, thus, the one-year period for filing a formal claim did not begin to run.  It follows that, because that one-year filing period was never triggered, the date of receipt of the Veteran's informal claim (August 13, 1979) must be accepted as the date of his application for VA benefits for purposes of determining an effective date of service connection.  See 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.1(p), 3.400(o), 3.155(a), 3.157(b)(1) (2012); Servello v. Derwinski, 3 Vet. App. 196 (1992); Quarles v. Derwinski, 3 Vet. App. 129 (1992).

The Board's inquiry does not end here, however, as it must also consider whether the Veteran was actually entitled to service connection for folliculitis barbae on the date his informal claim was filed.  In this regard, the Board is mindful that the Veteran did not support his August 13, 1979, informal claim with clinical evidence of current disability or nexus to service.  Nevertheless, he attested to the existence of a recurrent facial skin condition, which he was competent to report.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses).  Moreover, the Board considers the Veteran's assertions at that time to have been credible as they were both internally consistent and in line with other evidence then of record.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony).  Indeed, the Veteran's extant service treatment records confirmed that he had been treated for recurrent folliculitis barbae on his face and neck during his period of active duty.  Such clinical findings of a recurrent in-service disease, in tandem with the Veteran's contemporaneous account of ongoing post-service symptomatology, not only supported a finding of current disability but also suggested a link between that disability and his active service.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).    

In any event, the RO appears to have conceded that evidence of both a current disability and a causal nexus existed at the time of the Veteran's August 13, 1979, informal claim.  Otherwise, the RO would have had no cause to find error in its original November 17, 1982, rating decision, which was predicated on evidence that was already of record when that informal claim was received.
  
In light of the foregoing, the Board finds that the Veteran met the criteria for service connection for folliculitis barbae as of August 13, 1979, when his initial claim was date-stamped as having been received at the RO.  As that date is more than one year following the Veteran's release from service, the general rule governing earlier effective date claims applies.  38 U.S.C.A. § 5110(a) (West 2002); 
38 C.F.R. § 3.400 (2012).  Therefore, applying that rule, the Board finds that August 13, 1979, is the correct effective date of service connection for the Veteran's folliculitis barbae.  

Significantly, the Veteran has not argued that an effective date prior to August 1979 is warranted, and there is nothing in the record to suggest that is the case.  Indeed, as previously noted, while the Veteran submitted a July 1979 statement of general entitlement to VA disability compensation, he declined to specify the particular benefit or benefits sought at that time.  As such, that July 1979 filing did not constitute an informal claim for VA benefits.  The first such claim received was date-stamped August 13, 1979, which corresponds to the effective date of service connection assigned herein.  All reasonable doubt has been resolved in favor of the Veteran in making this decision.  38 U.S.C.A. § 5107(b) (West 2002); 
38 C.F.R. § 3.102 (2012).  

      B.  PTSD and IBS

With respect to the Veteran's remaining earlier effective date claims, the Board observes, as background, that May 2000 and November 2003 rating decisions granted service connection for PTSD and IBS, effective December 23, 1998, and May 20, 2003, respectively.  The Veteran filed Notices of Disagreement with respect to the effective dates of service connection for both disorders.  Thereafter, a January 2004 rating decision granted an earlier effective date of June 20, 2000, for service connection for IBS.  However, the Veteran indicated that he was not satisfied with that award and continued his appeal for earlier effective dates for both disorders.

As with the issue decided above, the Veteran contends that service connection for PTSD and IBS should have taken effect on the date of receipt of his initial informal claims for those disorders, which he alleges to have filed in advance of the November 1982 rating decision.  However, in contrast with his original claim for service connection for folliculitis barbae, he does not contend that his initial PTSD and IBS claims took the form of written correspondence, sent by him directly or on his behalf to the AOJ.  Rather, the Veteran maintains that such claims were raised during a July 1982 VA examination in which he complained of "stress" and "high acid volume and stomach pain."  See Board Hearing Tr. at 34, 38.  

The Board has reviewed the report of the above VA examination in which the Veteran's complaints were noted.  See Report of July 21, 1982, VA Examination.  Significantly, however, that July 1982 examination was conducted in support of the Veteran's claims for service connection for skin, musculoskeletal, and cardiovascular disabilities, none of which had any connection to PTSD or IBS.  See id.; see also November 17, 1982, Rating Decision (adjudicating claims for disabilities addressed on July 1982 VA examination).  Moreover, the Veteran does not allege that any separate service-connection claims for those disorders were received within one year of his July 1982 VA examination.  Nor does the record otherwise suggest that such claims arrived at the AOJ during this time period.  That is significant since, as previously noted, mere findings on a VA examination do not qualify as an original service connection claim unless a separate application for the same benefit is received during the initial post-examination year.  38 U.S.C.A. § 501 (2012); 38 C.F.R. § 3.157(b) (2012); MacPhee, 459 F.3d at 1327; Brannon, 12 Vet. App. at 35.  Thus, while sympathetic to the Veteran's contentions, the Board finds the July 1982 VA examination report does not meet the criteria for an original service-connection claim for PTSD or IBS.  

The Veteran has not indicated, nor has record otherwise shown, that any other formal or informal claims for PTSD and IBS were submitted prior to December 23, 1998, and June 20, 2000, respectively.  As such, the Board has no basis to assign earlier effective dates of service connection for those disorders.  

In reaching this determination, the Board is mindful of the evidence suggesting that the Veteran met the criteria for service connection for PTSD and IBS prior to seeking VA benefits for those disorders.  For example, the record contains an October 31, 2001, written statement from a private physician, "Dr. G.," indicating that the Veteran's PTSD symptoms manifested prior to December 23, 1998.  Moreover, the Veteran himself has testified that Dr. G. told him that he had a "classic case of PTSD [that went] undiagnosed for a considerable amount of time" before service connection was granted.  See Board Hearing Tr. at 33-34.  In a similar vein, he has submitted a March 2005 statement from a different private physician, asserting that the Veteran had PTSD at the time of the November 1982 rating decision and that both his psychiatric and IBS symptoms had manifested as early as 1975, during his period of active service.  See March 5, 2005, Statement from "Dr. B."  The Veteran also has reinforced that private physician's opinion by submitting an August 2012 written statement from a VA treating psychiatrist, indicating that the Veteran's PTSD began during his active service in Korea and was later exacerbated by his civilian police duties.  See August 24, 2012, Statement from VA Staff Psychiatrist.  

While the above evidence was not added to the record until after service connection for PTSD and IBS had been established, the Board recognizes that the date of the receipt of such evidence is irrelevant when an initial service-connection claim remains pending.  See McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (noting that when an original claim for benefits is pending, the date on which the evidence is submitted is irrelevant, even if it was submitted over twenty years after the time period in question).  Nevertheless, McGrath is distinguishable from the instant case since, as noted previously, there were no formal or informal claims for PTSD and IBS pending prior to the currently assigned effective dates of service connection for those disorders.  Therefore, even assuming that the Veteran had been entitled to service connection at an earlier point in time, the effective date of his awards could not have preceded the receipt of his initial claims.  See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012) (noting that the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later).  

For the foregoing reasons, the Board finds that the preponderance of the evidence is against the Veteran's claims for earlier effective dates of service connection for PTSD and IBS.  Thus, while the Board has carefully considered the benefit of the doubt rule, that rule is not for application.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012).  The benefits sought on appeal are accordingly denied.  

III.  Service Connection

At the outset of its discussion, the Board acknowledges that the Veteran previously filed a claim for service connection for a cervical spine disorder, which was denied in a May 2000 rating decision that was not appealed and therefore became final.  38 U.S.C.A. § 7105 (West 1994); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (1999).  Significantly, however, the record reflects that the Veteran's cervical spine claim has since been reopened in a May 2007 Board decision.  Accordingly, the Board need not further consider whether new and material evidence has been presented since the May 2000 rating decision but, rather, may proceed directly to the merits of that reopened service-connection claim.  

The Veteran, in Board hearing testimony and other documents of record, contends that he injured his neck and upper back in 1976, when he and other members of his unit were ambushed by North Korean soldiers along the Demilitarized Zone.  See Board Hearing Tr. at 10.  The Veteran maintains that this was the same attack in which he sustained the left shoulder and lumbar spine injuries for which he is presently service-connected.  See Board Hearing Tr. at 10-11.  He further alleges that, in the wake of that attack, he developed chronic neck and upper back problems, which progressively worsened over time and culminated in a diagnosis of degenerative cervical arthritis for which service connection is warranted.  

Service connection may be established on a direct basis for a disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  To establish service connection for a claimed disorder, there generally 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Until recently, the second and third elements of Hickson could be met through a showing of continuity of symptomatology, which could be established under certain circumstances through lay evidence.  See 38 C.F.R. § 3.303(b) (2012).  However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has now clarified that the theory of continuity of symptomatology applies only to diseases recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013).  In other words, that theory may only serve as a path to service connection for diseases that fall within the presumptive provisions outlined above.  Fortuitously for the Veteran, such diseases include degenerative arthritis of the cervical spine.  38 C.F.R. § 3.309(a) (2012).  Accordingly, the Board will consider whether to grant his claim based on continuity of symptomatology as well as the traditional Hickson elements.  See 38 C.F.R. § 3.303(b); Hickson, 12 Vet. App. at 253.  

Turning to the first Hickson element, the Board observes that the Veteran's current cervical spine disorder is not in dispute.  Indeed, the claims file is replete with complaints of chronic upper back and neck pain for which he has sought treatment with VA and private physicians and chiropractors for more than 20 years.  Moreover, the Veteran's symptoms have been found to comport with a diagnosis of degenerative arthritis, confirmed on X-ray, and have also been associated with clinical findings of C6-7 osteophytosis (bone spurs) and upper extremity median nerve entrapment.  Accordingly, the Board finds that the first Hickson element has been met.  

The Board also finds that the Veteran has met the second Hickson element.  Id.  In this regard, the Board acknowledges that the Veteran's purported 1976 cervical spine injury is not expressly substantiated in his service treatment records.  However, those records do show that, in May 1976, he was treated for left shoulder pain and limitation of motion incurred in a fall.  That clinical finding, while not specific to the cervical spine, is nonetheless consistent with his account of upper-body joint trauma.  As such, that finding lends credence to the Veteran's report of in-service injury, which falls within the realm of his personal experience and, thus, qualifies as competent lay evidence.  38 C.F.R. § 3.159(a)(2) (2012); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony).  

The Board acknowledges that, in the wake of aforementioned injury, the Veteran did not seek in-service treatment for cervical spine problems and none were documented in his March 1978 separation examination report.  Nevertheless, such a lack of contemporaneous medical evidence does not, in and of itself, render his account of in-service cervical spine pathology inherently incredible.  See Buchanan, 451 F.3d at 1336.  To the contrary, such lay evidence alone may be enough to establish the second element of service connection under Hickson.  Hickson, 12 Vet. App. at 253.  

Applying the above legal tenets to the facts presented, and affording the Veteran the benefit of the doubt, the Board finds that his lay assertions of in-service incurrence and the documented evidence of treatment for upper-body trauma in May 1976 are sufficient to satisfy the second element of Hickson.  Id.  Accordingly, the Veteran's claim now turns on the third Hickson element, which concerns whether a link exists between his active service and any current cervical spine disorder.  

In an effort to establish the required nexus, the Veteran has submitted written statements from his sister and two long-time friends, who have collectively attested to the Veteran's chronic upper back pain and related symptoms emanating from service.  See Brenda Bailey Statement, April 2, 2008; Gabriel Garcia Statement, October 14, 2010; Palecento T. Carver Statement, October 1, 2010.

In addition to the foregoing lay evidence, the record contains competing medical opinions from VA and private clinicians with respect to the remaining Hickson element.  The first such opinion was rendered by a VA physician who examined the Veteran in May 2008 and confirmed the diagnosis of degenerative cervical spine arthritis noted in his post-service treatment records.  Rather than providing a contemporaneous medical opinion, that VA examiner waited two years to address the etiology of the Veteran's cervical spine problems.  At that time, the examiner noted that no such problems were apparent in the Veteran's service treatment records or in any of the clinical evidence dated prior to 1979, when he had been injured in a motor vehicle accident.  Although the examiner did not describe the 1979 accident in detail, he referenced medical reports of ensuing treatment for cervical spine injuries, including cervical subluxation with acute perivertebral muscle spasm, cervicodorsal strain with attendant paravertebral myalgia, and accompanying "whiplash."  The examiner then concluded that these intercurrent injuries arising from the Veteran's 1979 accident were more likely accountable for his current cervical spine pathology than any incident during active service, notwithstanding the physical rigors incurred therein, particularly during basic training.  See VA Examination Report, May 7, 2010.  In rendering that opinion, the examiner omitted any mention of the Veteran's reports of in-service cervical spine injury coincident with his treatment for upper body trauma in May 1976.  Id.

Serving as a counterweight to the above VA opinion is a July 2010 letter from a private physician ("Dr. K.") who stated that she had treated the Veteran for many years for chronic neck and upper back pain.  In addition, Dr. K expressed familiarity with the Veteran's long history of treatment for degenerative arthritis of the cervical spine and related pathology, including his documented C5-7 osteophytosis, median nerve entrapment, and radicular symptoms.  Based on that personal knowledge of the Veteran and his extensive treatment history, as well as his own reported symptoms, the private physician opined that "at least 50 percent of [the Veteran's cervical spine] symptoms [had been] caused by his physical rigors while on assignment . . . in 1976 Korea."  See Statement of Dr. K., July 20, 2010.

When confronted with conflicting medical opinion evidence, the Board can favor one opinion over another as long as it adequately explains its reasoning.  See Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Here, the Board finds the private physician's July 2010 opinion, which supports the Veteran's claim, to be more probative than the countervailing May 2010 findings of the VA examiner.

In arriving at this determination, the Board considers it significant that the VA examiner omitted any mention of the Veteran's reported in-service upper body trauma or, indeed, any of the lay evidence of in-service injury and post-service continuity of symptomatology that he submitted in support of his claim.  As such, the basis for that examiner's negative nexus opinion cannot be considered factually accurate, fully articulated, and sound.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008).  This undermines the overall probative value of that VA examiner's opinion.

In contrast, the July 2010 private clinician afforded due consideration to the Veteran's lay reports of a cervical spine injury in service and residual problems thereafter.  Similarly, that private clinician addressed the Veteran's extensive post-service treatment history, thereby displaying her familiarity with other salient facts of the case.  See Nieves-Rodriguez, 22 Vet. App. at 301.  Indeed, the Board considers it significant that the private clinician had knowledge of his long-standing chronic neck pain and related symptoms, which she had personally treated for many years.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data).  Moreover, while that private clinician did not indicate that she had reviewed the claims file, such review is not a strict prerequisite for medical opinions, especially those authored by private examiners.  Id.  Further, the Board has less reason to discount the evidentiary weight of an opinion, such as that of the private clinician, which acknowledges relevant evidence that is supportive of the Veteran's claim.  

Having focused thus far on the probative aspects of the private clinician's opinion, the Board recognizes that this opinion is also deficient insofar as it declined to address pertinent medical facts.  Specifically, the opinion avoided any mention of the Veteran's 1979 civilian motor vehicle accident and the cervical spine injuries incurred therein.  Nevertheless, the Board considers that particular omission to be balanced by the private physician's attention to other key evidence, both clinical and lay.  Therefore, the Board is satisfied that the private physician's opinion, while imperfect, is more probative overall than the findings of the VA examiner.  As such, the overall medical opinion evidence of record supports a grant of the Veteran's claim.  

Even if the Board were to conclude that both physicians' competing findings were comparably problematic and, thus, of equal evidentiary weight, the resulting mixture of positive and negative medical opinions would still support an outcome favorable to the Veteran.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 

Also favorable to the Veteran's claim are his own statements, and those of his sister and long-time friends, attesting to a continuity of post-service cervical spine pain and related symptoms.  Just as the Veteran is capable of reporting a history of in-service upper back injury, he is similarly competent to attest to a continuity of relevant symptomatology since his period of service.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Davidson v. Shinseki, 581 F.3d 1313, 1318 (Fed. Cir.  2009).  Similarly, his sister and friends are competent to attest to symptoms that they have personally observed in the Veteran.  Moreover, the Board considers each of those lay witness accounts to be credible in the absence of any evidence to the contrary.  See Caluza, 7 Vet. App. at 511 (1995).  

Having thus determined that the aforementioned accounts of continuous upper back symptoms are both competent and credible, the Board finds such lay evidence to be sufficient, given the particular facts of this case, to establish a nexus between the Veteran's current  cervical spine disorder and his active service.  38 C.F.R. § 3.303(b) (2012).  In this regard, the Board is cognizant of the holding in Walker, which limited the application of continuity of symptomatology to those chronic diseases listed under 38 C.F.R. § 3.309(a).  Walker, 708 F.3d at 1337-1338.  As noted previously, however, such chronic diseases include the degenerative arthritis of the cervical spine at issue in this case.  As such, the nexus requirement for service connection for that disability can still be met through continuity of symptomatology, which can be established through probative lay evidence, as has been presented here.

Accordingly, the Board finds that, not only has the Veteran submitted a probative medical opinion, which establishes a positive nexus between his current cervical spine problems and active service, he also met this third and final element for service connection under Hickson through competent and credible lay evidence.  Hickson, 12 Vet. App. at 253; 38 C.F.R. § 3.303(b).  As such, while mindful of the existence of evidence that weighs against his cervical spine disorder claim, the Board finds that the overall record is at least in equipoise such that service connection is warranted.  Therefore, affording the Veteran the benefit of the doubt, service connection for a  cervical spine disorder, diagnosed as degenerative arthritis of the cervical spine, is granted.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).

IV.  Reopened Claim

The Board now turns to the Veteran's petition to reopen his claim of service connection for a lung disorder.  That claim was previously denied in an April 1983 rating decision, which the Board upheld in a March 1985 decision.  The Board's rationale for the denial was that the Veteran's documented in-service respiratory complaints had not been found to warrant a diagnosis of a chronic lung disorder, nor clinically attributed to his post-service calcified lung nodes.  

Thereafter, the Veteran filed an initial application to reopen his claim, which he supported with a May 1985 statement from his private treating physician ("Dr. B.").  In that statement, the clinician noted the presence of calcified lung nodes, which were suggestive of "old chronic granulamatous disease" and had persisted since service, as well as "intermittent benign pleuritic chest pains" that had arisen after service.  See May 28, 1985 Statement of Dr. B.  However, that clinician declined to state whether the Veteran currently met the diagnostic criteria for a lung disorder and, if so, whether such a disorder was related to his active service or to any disability incurred therein.  Id.  

Thereafter, the RO issued an August 1985 letter decision again denying the Veteran's claim.  Although the Veteran filed a timely Notice of Disagreement with that determination, he did not perfect an appeal.  He also did not submit any evidence that could be construed as new and material within one year of the August 1985 decision.  See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that if new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim"); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (holding that "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.")  As such, the August 1985 rating decision became final, and the Veteran's lung disorder claim may only be reopened through the submission of new and material evidence.  38 U.S.C.A. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1984).  

In reaching this preliminary determination, the Board recognizes that the Veteran has now moved away from a claim of direct service connection, alleging that VA benefits are instead warranted on a secondary basis.  However, that previously unarticulated theory of entitlement does not constitute a separate claim as the underlying disability remains unchanged.  See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008).  Accordingly, new and material evidence remains a prerequisite for de novo review of the Veteran's lung disorder claim.  In this regard, the Board acknowledges that the RO essentially conducted its own de novo review in a January 2006 rating decision.  Nevertheless, the Board must still independently consider whether new and material evidence has been received as this will determine whether it has jurisdiction to reach the merits of the Veteran's claim.  See 38 U.S.C.A. § 5108 (West 2002); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (noting that the "Board does not have jurisdiction to consider [the previously-adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find").   

"[T]he question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied."  See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006).  Moreover, where, as here, the request to reopen was filed after August 29, 2001, "new" evidence is defined as existing evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156(a) (2012).  "Material" evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  When determining whether a claim should be reopened, the credibility of the newly-submitted evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156(a) (2012); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (finding that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence).  
 
The Veteran has supported his petition to reopen his service-connection claim with an April 2005 letter from a private pulmonologist, who suggests that the Veteran's currently diagnosed bronchitis and related respiratory complaints are attributable to his GERD.  See April 13, 2005, Statement from Dr. F.  The Veteran also has submitted an October 2010 statement from his long-time private treating provider, who, after reviewing the findings of Dr. F., has concluded that the Veteran's current bronchitis may be etiologically related to both his GERD and his respiratory complaints in service.  See October 20, 2010, Statement from Dr. K.

As licensed physicians, the authors of both medical opinions are competent to address the etiology of the Veteran's current lung problems.  The pulmonologist is considered especially competent in light of his specialized training in lung disorders.  See Black, 10 Vet. App. at 284.  Furthermore, the Board presumes both clinicians' statements to be credible for the purpose of determining whether they are new and material.  Justus, 3 Vet. App. at 513.

In addition to clinical observations, the Veteran has offered his own impressions of a recurrent cough, chest pain, and other bronchial symptoms, persisting since service.  See Board Hearing Tr. at 13-14.  He is competent to report such symptoms, which are capable of lay observation.  See Layno, 6 Vet. App. at 470.  Moreover, both parties' impressions are presumed credible for the limited purpose of reopening the Veteran's claim.  Justus, 3 Vet. App. at 513.

The Board finds that the above clinical and lay evidence is new to the extent that it was not previously considered by VA decision makers.  That evidence is also material as it pertains to an unestablished facts necessary to substantiate the Veteran's claim.   

Specifically, the April 2005 and October 2010 statements from the private physicians denote a causal connection between the Veteran's current lung problems and his GERD.  As noted in the introduction, while service connection for GERD has not yet been established, it remains a pending claim.  Moreover, for the reasons outlined below, further development of that claim is warranted.  As such, the Board finds that the private clinicians' statements both raise the possibility of a nexus between the Veteran's current lung problems and a disease for which service connection may be established on remand.  Therefore, those statements collectively suggest that service connection for a lung disorder may be warranted on a secondary basis.  That theory of entitlement, as has already been noted, was not considered in any of the prior rating decisions.  In addition, the October 2010 clinician's statement constitutes evidence of direct in-service incurrence that was not previously of record.  

Accordingly, the Board finds that the new evidence detailed above relates to a specific fact (nexus) that was not established at the time of the last final adjudication.  Therefore, the Board finds that the evidence presented is not only new but also material and, thus, sufficient to reopen the Veteran's lung disorder claim.  To this extent only, the claim is allowed.


ORDER

An effective date of August 13, 1979, for the award of service connection for folliculitis barbae of the face and neck is granted.

An earlier effective date for the award of service connection for PTSD is denied.

An earlier effective date for the award of service connection for IBS is denied.

Service connection for a cervical spine disorder, diagnosed as degenerative arthritis of the cervical spine, is granted.

New and material evidence having been submitted, the claim of entitlement to service connection for a lung disorder is reopened, and to this extent only, the claim is granted.


REMAND

Although the Board regrets any additional delay, further development is needed with respect to the Veteran's reopened lung disorder claim and his claims for service connection for GERD, an increased rating for a lumbar spine disorder, initial increased ratings for a left shoulder joint disorder, a left shoulder scar, a bilateral foot disorder, and IBS; and TDIU.

I.  SSA Records 

Pursuant to the Board's March 2010 Remand, the AOJ attempted to obtain the Veteran's SSA records, but was unsuccessful.  See Formal Finding of Unavailability of SSA Records dated October 26, 2010.  Significantly, however, the Veteran later indicated that such records were under seal while his SSA claim was pending in Federal district court.  See Report of General Information dated September 20, 2010.  He has since submitted copies of SSA records in his own possession, which confirm that he has sought disability benefits from that agency for left shoulder, lumbar spine and mental health problems.  Nevertheless, it remains unclear whether a final decision on the Veteran's SSA disability claim has ever been made and whether there are additional records from that agency which have not yet been obtained.  As a copy of any SSA decision that exists, and the records upon which it was predicated, may be pertinent to the Veteran's pending claims for initial increased left shoulder and lumbar spine ratings and his earlier effective date claim for PTSD, additional efforts to obtain a complete copy of the Veteran's SSA file should be made on remand.  See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); see also Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (finding that as long as a reasonable possibility exists that SSA records may be relevant to a Veteran's claim, VA must assist him or her in obtaining the records); Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (holding that VA's duty to assist includes obtaining records from SSA and giving them appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). 

II.  Private Treatment Records

As discussed in the preceding section, the Veteran has submitted statements from a private pulmonologist and his long-time private treating physician, who have collectively attested to his treatment for episodic bronchitis and related lung complaints in association with GERD.  See April 13, 2005, Statement from Dr. F.; October 20, 2010, Statement from Dr. K.  However, while both clinicians acknowledge treating the Veteran on multiple occasions, records of such treatment do not appear to have been associated with the record.

Other pertinent private treatment records also appear to be outstanding.  The Veteran testified at his recent Board hearing that his family treating physician had referred him to a podiatric specialist ("Dr. H.") who had provided injections for metatarsophalangeal joint pain and related symptoms of the service-connected bilateral foot disorder currently on appeal.  See Board Hearing Tr. at 22-23.  Moreover, concurrent with that hearing, the Veteran submitted evidence of ongoing treatment from a private neurologist ("Dr. S.") for nerve problems associated with the service-connected lumbar spine disorder for which an initial increased rating is also claimed.  The Veteran also submitted another statement from his long-time treating physician, which referenced treatment from a private chiropractor ("Dr. C.") for upper and lower back problems.  See July 20, 2010, Statement of Dr. K.  Significantly, however, it does not appear that records from Dr. H., Dr. S., or Dr. C. have yet been requested.  

Accordingly, as the Board is now on notice that outstanding private treatment records may exist that are pertinent to the Veteran's pending lung disorder, GERD, bilateral foot, and lumbar spine claims, reasonable efforts to obtain those records should be made on remand.  See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012).  

Specifically, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of records from his longtime private treating physician ("Dr. K.") as well as from the private pulmonologist ("Dr. F."), podiatric specialist ("Dr. H."), neurologist ("Dr. S."), and chiropractor ("Dr. C.") who have treated him for disabilities at issue on appeal.  Then, if the Veteran provides the requested information, the AOJ should attempt to obtain such records.

III.  VA Treatment Records 

In addition to attesting to ongoing private treatment for his bilateral foot disorder, the Veteran informed the Board at his recent hearing that he was also seeking VA treatment for that service-connected disability.  See Board Hearing Tr. at 21.  The Veteran also submitted evidence of ongoing VA treatment for PTSD and IBS.  See August 24, 2012, Statement of Staff Physician, Portland VA Medical Center.  Significantly, however, no VA treatment records dated since November 19, 2008, have yet been associated with the record.  Accordingly, on remand, the Board should obtain a complete copy of subsequent treatment records from the Portland VA Medical Center.  38 C.F.R. § 3.159(c)(2) (2012); see Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  


IV. VA Examinations

In a claim for service connection, VA's duty to assist the Veteran includes providing a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012).  

In an increased rating claim, VA's duty to assist includes obtaining a thorough and contemporaneous evaluation where necessary to reach a decision on the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  The Court has held that, where the Veteran claims that a service-connected disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (noting that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted).  

In this case, VA examinations are warranted with respect to all of the Veteran's service-connection and initial increased rating claims that remain pending.

	A.  Service Connection for GERD

In the preceding section, the Board reopened the Veteran's claim for service connection for a lung disorder based upon new and material evidence that suggested, in pertinent part, that his currently diagnosed bronchitis and related symptoms were attributable to his GERD.  However, in order to grant the Veteran's lung disorder claim based upon that secondary theory of causation, he must first show that service connection is warranted for GERD.  The medical opinion evidence currently of record is not yet sufficient to make that determination.

In this regard, the Board notes that, while the Veteran was previously afforded a VA GERD examination in May 2008, the examining clinician noted that the etiology of his gastrointestinal symptoms could not be determined without resorting to speculation.  Such an opinion, which is inherently speculative and inconclusive in nature, cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).  

Moreover, the Board considers it significant that the May 2008 VA examination predated and, thus, did not consider the October 2010 statement from the private treating provider, who opined that the Veteran's GERD may have had its onset in service when he sought treatment for gastrointestinal complaints.  While more supportive of the Veteran's claim, however, that private opinion is also speculative and is not accompanied by any underlying rationale.  As such, it is insufficient, standing alone, to warrant a grant of service connection.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (noting that a "mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion").

Similarly insufficient are the Veteran's own contentions of ongoing GERD, which he alleges originated in service and was caused or aggravated by his service-connected PTSD.  See Board Hearing Tr. at 21.  Although the Veteran is competent to report recurrent gastrointestinal symptoms, such as bloating and heartburn, which are capable of lay observation, he has not demonstrated the clinical expertise to relate those symptoms to an incident in service or a service-connected disability.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.).  As such, whether his currently diagnosed GERD is in any way related to the gastrointestinal complaints he experienced in service, or to his service-connected PTSD, are questions that require medical expertise to resolve.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  

The Board recognizes that the Veteran's aforementioned statements are suggestive of a continuity of GERD symptomatology emanating from service.  However, such lay evidence of continuity of symptomatology, however competent and credible, is no longer sufficient to warrant service connection for a disability, such as GERD, which is not included among the chronic diseases delineated in 38 C.F.R. § 3.309(a).  See Walker, 708 F.3d at 1337-1338.  

Accordingly, as the Board is unable to grant the Veteran's GERD claim based on the lay evidence presented, and as the prior VA and private opinions obtained in support of that claim are insufficient for rating purposes, a new VA examination should be obtained on remand.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing 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 also 38 C.F.R. § 4.2 (2012) (noting that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes).  That new examination should resolve all inconsistencies in the record and fully assess whether the Veteran's GERD was incurred during his military service, or was caused or aggravated by his service-connected PTSD.  

      B.  Service Connection for a Lung Disorder

As discussed above, the Veteran has successfully reopened his lung disorder claim by presenting new and material evidence, which includes private medical opinions suggesting that his currently diagnosed bronchitis originated in service or was caused or aggravated by his GERD, as well as his own lay assertions of in-service incurrence and continuity of symptomatology.  Although sufficient to reopen the Veteran's claim, however, such evidence is not enough, standing alone, to grant the benefits sought on appeal.  

As with the prior medical opinions obtained in support of the Veteran's GERD claim, the April 2005 and the October 2010 private clinicians' opinions are speculative and lack a supporting rationale.  See Stefl, 21 Vet. App. at 123 (noting that a "mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion").  Moreover, to the extent that those clinicians attribute the Veteran's lung disorder to his GERD, their findings are premature for the purpose of establishing a secondary theory of entitlement.  Furthermore, just as with Veteran may not rely on his own assertions of in-service incurrence and continuity of symptomatology to warrant service connection for GERD, such lay evidence is also insufficient to grant his lung disorder claim.  See Clyburn, 12 Vet. App. at 301; see also Walker, 708 F.3d at 1337-1338.  

While insufficient to grant the Veteran's claim, however, the foregoing evidence has already been determined to be new and material insofar as it is sufficient to trigger the need for a VA examination.  See 38 C.F.R. § 3.303 (2012); see also Shade, 24 Vet. App. at 117.  Accordingly, such an examination should be conducted on remand.  See McLendon,  20 Vet. App. at 81.  The VA clinician who conducts that examination should resolve all inconsistencies in the record and fully assess whether the Veteran has bronchitis, or any other lung disorder, which was incurred during or caused by his military service.  Additionally, if the Veteran's GERD is found to be related to his active service, the VA examiner should address whether that disability caused or aggravated any lung disorder found to be present.

	C.  Increased Rating for a Lumbar Spine Disorder 

The Veteran's service-connected lumbar spine disorder, identified as chronic lumbar strain superimposed on degenerative disc disease and disc fragment at L3-L4 and foraminal stenosis at L4-L5, with right nerve involvement, has been rated 20 percent disabling since May 20, 2003 (the date of receipt of his claim for a higher rating).  It was previously rated 10 percent disabling.  Throughout the entire appeals period, the Veteran has claimed that higher evaluations are in order.

The record reflects that the most recent VA examination addressing the Veteran's lumbar spine claim was administered in May 2008.  Since that time, he has submitted private clinical records showing ongoing treatment for pain, limitation of motion, and related functional loss, as well as radiculopathy and related nerve impingement arising from that service-connected disability.  The Veteran also has alerted the Board to the existence of additional treatment records that are being requested on remand.  Additionally, he has attested to an overall worsening of his lumbar spine symptoms, which he contends interfere with his ability to work and perform other daily living activities.  See Board Hearing Tr. at 28-30.  The Veteran has further maintained that his current lumbar pain is so severe as to necessitate epidural steroid injections and prescribed bed rest.  Id.    

The Veteran is competent to offer the foregoing impressions of worsening lumbar pain, limitation of motion, and related symptoms, which are capable of lay observation.  See Layno, 6 Vet. App. at 469-70 (1994) (holding that competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted).  Similarly, he is competent to attest to the perceived occupational impairment and other functional effects associated with those symptoms.  Id.  

Here, the Veteran's testimony, and the evidence of ongoing treatment, raises the possibility that his lumbar spine disorder has increased in severity since the most recent VA examination.  As such, a new examination is required on remand.

      D.  Initial Increased Ratings for Left Shoulder Joint Disorder and Scarring

The Veteran's service-connected left shoulder joint disorder, identified as chronic synovitis of the left (non dominant) acromioclavicular joint with rotator cuff impingement, tendonitis of the glenohumeral joint, status post Mumford procedure, and degenerative joint disease, has been evaluated as 10 percent disabling from December 13, 1996 to March 1, 1999, and as 20 percent disabling thereafter.  During this period, the Veteran also has been in receipt of service connection for a scar arising from his 1999 left shoulder joint surgery.  That residual scar has been evaluated as noncompensably disabling from June 14, 1999, to May 19, 2003 and as 10 percent disabling thereafter.

The record reflects that, since the Veteran's most recent VA joints examination, performed in May 2008, he has submitted clinical records of ongoing treatment for left shoulder joint pathology and scarring.  He also has informed the Board of additional outstanding treatment records, which are being requested on remand.  

In addition, the Veteran has testified that his left shoulder joint symptoms and tender scar, which arose from his 1999 surgery, have increased in severity.  He has further testified that the "burning pain," limitation of motion, and related functional impairment associated with those disabilities interfere with his ability to work and perform other daily living activities.  See Board Hearing Tr. at 16-19.

As with the symptoms associated with the Veteran's lumbar spine disorder, the pain and functional loss arising from his service-connected left shoulder disabilities are capable of lay observation.  See Layno, 6 Vet. App. at 469-70 (1994).  Accordingly, in light of the Veteran's competent testimony of worsening symptoms, and the corroborating medical evidence, a new examination is also required to assess the current nature and severity of his left shoulder joint disorder and scarring.

      E.  Initial Increased Rating for a Bilateral Foot Disorder

Similarly, a new VA examination is required to assess the current nature and severity of the Veteran's bilateral foot disorder (muscular strain of both feet superimposed on chronic pes planus with intermittent muscle cramps), which has been rated as 10 percent disabling from December 13, 1996 to February 19, 2004 and as 30 percent disabling since that time. 

As he has with his lumbar spine and left shoulder disorders, the Veteran has submitted evidence of ongoing private and VA treatment for his foot problems since his previous May 2008 VA examination.  He likewise has attested to progressively worsening pain, limitation of motion, and related symptoms, which he contends require orthotic inserts, preclude him from walking more than three blocks at a time, and interfere with his ability to work.  See Board Hearing Tr. at 21-23.

The pain, limitation of motion, and related symptoms associated with the Veteran's bilateral foot disorder, like the symptoms associated with his lumbar spine and left shoulder disorders, are capable of lay observation.  See Layno, 6 Vet. App. at 469-70 (1994).  Accordingly, as the Veteran has reported a worsening of such symptoms since his last VA examination, and submitted medical evidence of their progression, a new examination is in order.  

      F.  Initial Increased Rating for IBS 

A new VA examination is also in order with respect to the Veteran's IBS, which has been rated as 10 percent disabling since June 20, 2000, the effective date of service connection.  

The Veteran was last examined in connection with his IBS in May 2008.  At that time, the VA clinician who assessed the Veteran's GERD commented that, by his own admission, his IBS symptoms were "getting slightly worse" and that such symptoms currently incapacitated him approximately a few times each year, but did not warrant prescribed bed rest.  Since undergoing that examination, the Veteran has attested to a continued worsening of his IBS, which now includes flare-ups of diarrhea and constipation that incapacitate him 3-4 times per year for several days at a time.  See Board Hearing Tr. at 24-26.  The Veteran's sister also has noted the claimed functional impairment posed by his IBS.  See Statement from B.B., April 2, 2008.  Significantly, her statement, while rendered ahead of the previous VA examination, was not considered at that time.

As the above lay and clinical evidence collectively suggests that the Veteran's IBS symptoms may have worsened in severity since his last examination, a new examination should be administered on remand.

V.  TDIU

As noted in the introduction, the Veteran has presented evidence of unemployability due to the service-connected lumbar spine, left shoulder, and bilateral foot disorders for which he is seeking initial increased ratings.  Therefore, the claim for TDIU, for the period on appeal in which a total rating has not already been established, is part and parcel of his initial increased rating claims.  See Rice, supra.  

The assignment of TDIU does not moot the need for consideration of increased ratings for individual service-connected disabilities.  See Colayong v. West, 12 Vet. App. 524, 536-37 (1999).  Indeed, that is why the Veteran's lumbar spine, left shoulder, bilateral foot, and IBS claims have remained pending even during those periods in which TDIU has been assigned.  Nevertheless, the development requested with respect to those individual disability rating claims could have bearing on whether the assignment of additional TDIU benefits is proper.  The same is true with respect to the Board's grant of the VA benefits outlined above and its Remand of the Veteran's pending service-connection claims.  Accordingly, the Board finds that the issue of TDIU is inextricably intertwined with the other claims presented in this appeal.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have a significant impact on the outcome of the other).  As such, a final decision by the Board on the TDIU issue would at this point be premature and action on that issue is therefore deferred.  See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris, 1 Vet. App. at 183. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain a copy of the Veteran's complete SSA file, including any final decision regarding his claim for disability benefits and the medical records and other evidentiary materials upon which that decision was predicated.  In this regard, the AOJ's attention is directed to the evidence of record, which indicates that the Veteran's SSA file was temporarily under seal pending the resolution of his case in Federal district court.

2.  Obtain the Veteran's treatment records from the Portland VA Medical Center for the period from November 19, 2008, to the present.  

3.  Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of records from his longtime private treating physician ("Dr. K.") as well as from the private pulmonologist ("Dr. F."), podiatric specialist ("Dr. H."), neurologist ("Dr. S."), and chiropractor ("Dr. C.") who have treated him for disabilities at issue on appeal.   

If the Veteran provides the requested information, make two attempts to obtain the relevant private treatment records or make a formal finding as to why such records cannot be obtained.  See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012); 38 U.S.C.A. § 5103A(2)(B) (West 2002).   

4.  If any of the records requested in items 1 through 3 are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).

5.  After the development requested in items 1 through 4 is complete, schedule the Veteran for an examination to determine the nature and etiology of his gastroesophageal reflux disorder (GERD).  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. 

After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner is asked to provide opinions as to the following:

(a)  State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD had its clinical onset during active service or is related to any in-service disease, event, or injury.  

(b)  State whether it is at least as likely as not (50 percent or greater) that the Veteran's GERD is causally related to his service-connected PTSD.

(c)  State whether it is at least as likely as not (50 percent or greater) that the Veteran's GERD was aggravated beyond the normal course of the condition by his service-connected PTSD.  

In offering these opinions, the VA examiner's attention is directed to the October 2010 statement from the private treating physician regarding the possible onset of the Veteran's GERD symptoms during active service.

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

6.  After the development requested in item 5 is complete, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current lung disorder.  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. 

After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should offer opinions as to the following:

(a)  Diagnose all current lung disorders.

(b)  State whether it is at least as likely as not (50 percent or greater probability) that any current lung disorder had its clinical onset during active service or is related to any in-service disease, event, or injury.  

(c)  If, pursuant to item 5, the Veteran's GERD is found to be service-related, state whether it is at least as likely as not (50 percent or greater) that any current lung disorder is causally related to his GERD.

(d)  If, pursuant to item 5, the Veteran's GERD is found to be service-related, state whether it is at least as likely as not (50 percent or greater) that any current lung disorder was aggravated beyond the normal course of the condition by his GERD.

In offering these opinions, the VA examiner's attention is directed to the April 2005 and October 2010 statements from the private pulmonologist and treating physician suggesting an etiological relationship between the Veteran's GERD and his current lung problems.    

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

7.  After the development requested in items 1-4 is complete, schedule the Veteran for a VA examination to assess the current nature, extent, and severity of his service-connected lumbar spine disorder (chronic lumbar strain superimposed on degenerative disc disease and disc fragment at L3-L4 and foraminal stenosis at L4-L5, with right nerve involvement).  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. 

The examiner should conduct all clinically-indicated tests and studies. 

In addition, the examiner should discuss the degree of occupational impairment attributable to the Veteran's lumbar spine disorder.  In particular, the examiner should describe what types of employment activities would be limited because of that service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent.  In making these determinations, the examiner should take into account the Veteran's own assertions regarding the impact of his lumbar spine pain and limitation of motion on ability to work and perform daily living activities.

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

8.  After the development requested in items 1-4 is complete, schedule the Veteran for an examination to assess the current nature, extent, and severity of his service-connected left shoulder joint disorder (chronic synovitis of the left (non dominant) acromioclavicular joint with rotator cuff impingement, tendonitis of the glenohumeral joint, status post Mumford procedure, and degenerative joint disease) and residual scarring.  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. 

The examiner should conduct all clinically-indicated tests and studies.  

In addition, the examiner should discuss the degree of occupational impairment attributable to the Veteran's left shoulder joint disorder.  In particular, the examiner should describe what types of employment activities would be limited because of that service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent.  In making these determinations, the examiner should take into account the Veteran's own assertions regarding the impact of his left shoulder joint disorder and limitation of motion on ability to work and perform daily living activities.

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

9.  After the development requested in items 1-4 is complete, schedule the Veteran for an examination to assess the current nature, extent, and severity of his service-connected bilateral foot disorder (muscular strain of both feet superimposed on chronic pes planus with intermittent muscle cramps).  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. 

The examiner should conduct all clinically-indicated tests and studies. 

In addition, the examiner should discuss the degree of occupational impairment attributable to the Veteran's bilateral foot disorder.  In particular, the examiner should describe what types of employment activities would be limited because of that service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent.  In making these determinations, the examiner should take into account the Veteran's own assertions regarding the impact of his bilateral foot disorder on his ability to work and perform daily living activities.

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a 
supporting rationale as to why an opinion cannot be made without resorting to speculation.  

10.  After the development requested in items 1-4 is complete, schedule the Veteran for a VA examination to assess the current nature, extent, and severity of his service-connected irritable bowel syndrome (IBS).  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. 

The examiner should conduct all indicated tests and studies.

In addition, the examiner should discuss the degree of occupational impairment attributable to the Veteran's IBS.  In particular, the examiner should describe what types of employment activities would be limited because of that service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent.  In this regard, the examiner should take into account the Veteran's own assertions regarding the impact of his IBS on his ability to work and perform daily living activities.

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

11.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal, to include entitlement to TDIU for the period prior to May 20, 2003.  If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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).  

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



______________________________________________
DONNIE R. HACHEY
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs