Citation Nr: 1324927 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 02-13 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss, and if so, whether service connection is warranted. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for carpal tunnel syndrome, and if so, whether service connection is warranted. 3. Entitlement to service connection for hemachromatosis compound heterozygote and cirrhosis of the liver (claimed as a liver condition), to include as secondary to a chronic lumbar strain. 4. Entitlement to service connection for degenerative arthritis. 5. Entitlement to service connection for a skin rash, to include as due to exposure to herbicides. 6. Entitlement to service connection for fibromyalgia. 7. Entitlement to an increased disability evaluation for a chronic lumbar strain, to include an evaluation in excess of 10 percent prior to July 11, 2000, and an evaluation in excess of 40 percent as of July 11, 2000. 8. Entitlement to an effective date prior to July 11, 2000, for the grant of a 40 percent evaluation for a chronic lumbar strain. 9. Entitlement to an increased disability evaluation for history of cervical strain with compression of C5-6, degenerative joint disease, to include an evaluation in excess of 10 percent disabling prior to December 11, 2008, and an evaluation in excess of 30 percent as of December 11, 2008. 10. Entitlement to a compensable disability evaluation for gastroesophageal reflux esophagitis (GERD). 11. Entitlement to an effective date for the grant of service connection for myofascial and vascular cephalgia. 12. Entitlement to an effective date earlier than October14, 2008, for the grant of service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Robert Walsh, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from February 1970 to December 1972 and from March 1978 to November 1991, with unverified service as of September 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issues of entitlement to an increased disability evaluation for a cervical strain, entitlement to service connection for posttraumatic stress disorder (PTSD) and entitlement to Dependent's Educational Assistance (DEA) benefits were previously remanded by the Board in July 2005 and September 2007 for further evidentiary development. The issues of entitlement to an effective date prior to July 11, 2000, for the grant of a 40 percent evaluation for a chronic lumbar strain and entitlement to service connection for diabetes mellitus, type II were previously denied by the Board in July 2005. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in February 2007, the Court granted a joint motion to remand these issues back to the Board. The Board subsequently remanded these issues in September 2007. Per the Court's February 2007 instructions, the Veteran's claim for an increased rating for his chronic lumbar strain disability has been recharacterized as entitlement to a rating in excess of 10 percent, prior to July 11, 2000, and entitlement to a rating in excess of 40 percent thereafter. During the pendency of this claim, the issues of service connection for PTSD and diabetes mellitus, and, entitlement to DEA Benefits under Chapter 35, were granted in an April 2010 rating decision. Since these grants constituted a full grant of the benefits sought on appeal, these claims are no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Detroit, Michigan in August 2004. A written transcript of this hearing has been prepared and incorporated into the evidence of record. On July 11, 2000, the Veteran submitted a claim for numerous disabilities, including "vision changes" and "heat injury." The record does not reflect that any action has ever been taken on these claims. As they have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. In April 2010, the RO granted service connection for diabetes mellitus, effective from October 14, 2008. In June 2011, the Veteran submitted a statement expressing disagreement with the effective date assigned for his grant of service connection for diabetes mellitus. A review of the claims file reveals that the Veteran was not sent notice of the April 2010 rating decision until he was issued a letter on July 8, 2011. In March 2012, the RO sent the Veteran a letter stating that they could not accept the correspondence received on June 9, 2011 as a notice of disagreement. The RO related that the Veteran was notified on July 8, 2011 regarding the April 9, 2010 rating decision (granting service connection for diabetes mellitus, and assigning a 20 percent rating, effective October 2008). The RO stated that the notice of disagreement was received prematurely, approximately a month before the notification was mailed. In the instant case, the Board finds that the Veteran's notice of disagreement is in fact timely. The Veteran should not be penalized because the RO sent him noticed over a year after the decision was made. It is clear that despite the notice being sent out well over a year following the rating decision that the Veteran was made aware of the award of service connection for diabetes mellitus, as well as the effective date assigned for such grant. It is found that he has submitted his notice of disagreement within a year of being notified of the RO's April 2010 decision. Since he has submitted a notice of disagreement with the assigned effective date for diabetes mellitus within one year of being notified of the RO's decision, the Veteran needs to be issued a statement of the case. This will be addressed in the remand section. Previously, in July 2005, the Board reopened and denied the claim of entitlement to service connection for bilateral hearing loss. The Veteran did not appeal this decision, instead informing the Court in February 2007 that he did not wish to pursue the claim of entitlement to service connection for hearing loss. The Board's previous denial was, therefore, affirmed. However, in February 2009, the Veteran filed a claim seeking to reopen his previously denied claim of service connection for hearing loss. In a February 2012 Decision Review Officer (DRO) decision, the claims of entitlement to service connection for tinnitus and left ear hearing loss were granted. While the rating decision did not specifically address the claim of right ear hearing loss, when an RO decision "discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not 'specifically' deny that claim." Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007). The implicit denial rule applies where a VA decision provides an appellant with reasonable notice that his claim for benefits was denied. Adams v. Shinseki, 568 F.3d 956, 964 (Fed. Cir. 2009). In the present case, by specifically limiting the grant to left ear hearing loss, the Veteran was put on reasonable notice that right ear hearing loss was denied (this was also listed as a nonservice-connected disability in the rating decision itself). Right ear hearing loss was denied in a February 2012 statement of the case, which the Veteran appealed to the Board in March 2012. The Veteran indicated in his appeal to the Board that he did not desire a hearing on this issue. Although the RO reopened the claim of entitlement to service connection for right ear hearing loss, the Board is required to consider whether new and material evidence has been presented. If so, the merits of the claim can then be considered. Irrespective of the RO's actions, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claims. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues of entitlement to service connection for degenerative arthritis, a skin rash, fibromyalgia, and hemachromatosis; the issue of entitlement to an increased disability evaluation for GERD; the issue of entitlement to an earlier effective date for the grant of service connection for myofascial and vascular cephalgia and whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for carpal tunnel syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO. These issues were addressed in a February 2008 rating decision and have not previously been before the Board. The issues of entitlement to increased disability evaluations for a chronic lumbar strain and cervical degenerative joint disease, as well as entitlement to an effective date prior to July 11, 2000, for the assignment of a 40 percent disability evaluation for a lumbar strain, which have previously been remanded by the Board, are again REMANDED to the RO for development. FINDINGS OF FACT 1. The July 2005 Board decision denying service connection for hearing loss is final. 2. Evidence received since the July 2005 Board decision is new and relates to an unestablished fact necessary to substantiate the Veteran's claim, and as such, the claim of entitlement to service connection for right ear hearing loss is reopened. 3. The Veteran does not meet the schedular criteria for a right ear hearing loss disability, for VA purposes, under 38 C.F.R. § 3.385. CONCLUSIONS OF LAW 1. The July 2005 Board decision denying service connection for right ear hearing loss was not appealed and is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. New and material evidence has been received and the claim of entitlement to service connection for right ear hearing loss is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for establishing entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans 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 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the veteran with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. The Veteran was provided notice letters in September 2009 and February 2010. These letters addressed all notice elements listed under 3.159(b)(1), informed the Veteran of what evidence was required to reopen a previously denied claim and informed him of why his claim of service connection for hearing loss was previously denied. These letters were provided to the Veteran prior to the initial adjudication of this claim. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA audiometric examination in August 2011. VA has obtained a copy of this report as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records and medical treatises have also been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Relevant Laws and Regulations Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. Analysis for Right Ear Hearing Loss The Veteran's claim of entitlement to service connection was previously denied by the Board in July 2005 because there was no competent evidence of a nexus between a current diagnosis and service. As such, for the evidence to be material in this case, it must address this unestablished fact, or, at least trigger the Board's duty to assist when considered in conjunction with the other evidence of record. With that having been said, the Board finds that evidence that is both new and material has been provided to VA since the July 2005 denial of this claim. According to an August 2011 VA audiometric examination, a diagnosis of sensorineural hearing loss of the right ear was assigned. The examiner opined that the Veteran's hearing loss was at least as likely as not caused by or a result of military service (although it was subsequently conceded that the Veteran's right hearing sensitivity was within normal limits). Nonetheless, the positive diagnosis and positive etiological opinion are sufficient to reopen this claim. Service Connection for Right Ear Hearing Loss Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as sensorineural hearing loss (organic disease of the nervous system), becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Facts and Analysis The Veteran contends that he suffers from hearing loss of the right ear as a result of noise exposure during his military service. However, as discussed below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from hearing loss of the right ear, for VA rating purposes. In formulating its decision, the Board has taken into consideration the Court's holding in Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). However, in the present case, the RO reopened the claim of entitlement to service connection for hearing loss. As such, appellate review may proceed as the Board is not addressing a question that has not already been addressed by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Veteran's service treatment records reflect that he was not suffering from hearing loss of the right ear, for VA purposes, at the time of his separation from active duty. According to the Veteran's June 1991 retirement examination, pure tone thresholds, in decibels (dB), were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 5 10 15 The Veteran also denied having, or ever having had, suffered from hearing loss in his report of medical history associated with this examination. For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2012). Therefore, the evidence demonstrates that the Veteran was not suffering from right ear hearing loss at the time of his separation from active duty. The first evidence of reported hearing loss of record is the Veteran's claim of December 1991. A December 1991 neurological evaluation note also reflects a complaint of a "hearing problem" and "high tone hearing loss." However, no specific diagnosis was assigned in relation to these complaints. The next evidence of impaired hearing is the Veteran's claim to reopen received in May 2002. The Veteran merely asserted "hearing loss" at this time. According to a June 2002 letter from a private physician with the initials W.B., the Veteran had been complaining of hearing loss for the last several years that had been getting progressively worse. Examination revealed excessive wax in both ears that was removed, revealing scarred tympanic membranes. A hearing test was also performed, revealing a bilateral high frequency speech reception threshold of 10 decibels (dB) with 100 percent discrimination. It is not clear from the report whether Maryland CNC testing was performed. The Veteran was diagnosed with mild sensorineural hearing loss with wax impaction. This diagnosis is not sufficient to demonstrate whether the Veteran suffers from bilateral hearing loss for VA rating purposes, as this requires auditory thresholds or Maryland CNC testing results that conform with 38 C.F.R. § 3.385. Finally, a VA audiometric examination performed in August 2011 reflects that the Veteran does not have a current diagnosis of right ear hearing loss. The authorized audiological evaluation revealed pure tone thresholds, in dB, to be: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 10 30 Speech audiometry revealed a speech recognition ability of 98 percent in the right ear. Therefore, the Veteran was not suffering from right ear hearing loss as of this time. See id. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for hearing loss of the right ear. There is no evidence of right ear hearing loss during military service and no evidence of a current disability manifested by right ear hearing loss, for VA rating purposes. The Board recognizes that the record contains a private medical report from October 2010 that notes bilateral sensorineural hearing loss as one of the Veteran's current problems. However, a review of the referenced audiogram reveals pure tone thresholds, in dB, to have been: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 15 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. However, it is again unclear from the audiometric report whether Maryland CNC testing was used to obtain these results. Nonetheless, the audiometric results themselves are not suggestive of hearing loss for VA rating purposes, and this finding was subsequently confirmed upon examination in August 2011. As such, despite the diagnosis of bilateral hearing loss, the preponderance of the evidence of record demonstrates that the Veteran's auditory thresholds do not meet the criteria for a finding of right ear hearing loss, for VA rating purposes. See 38 C.F.R. § 3.385. The Board recognizes that the Veteran has reported witnessing combat and that the evidentiary requirements for determining what happened in service are relaxed for combat veterans. See 38 U.S.C.A. § 1154(b). However, in the present case, the Veteran's claim is being denied for lack of a current diagnosis. Competent evidence of a current disability is still required. See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). In summary, the Board is not disputing that the Veteran was exposed to high levels of noise during active military service. Furthermore, the Board does not question the Veteran's belief that he suffers from right ear hearing loss. Objective testing, however, has routinely confirmed that the Veteran does not meet VA's statutory requirements for a recognized hearing loss disability. See 38 C.F.R. § 3.385. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for right ear hearing loss must be denied. ORDER New and material evidence having been received, the claim of entitlement to service connection for right ear hearing loss is reopened. Service connection for right ear hearing loss is denied. REMAND In April 2010, VA received an appeal to the Board (VA Form 9) from the Veteran following a February 2008 rating decision and February 2010 statement of the case that denied the following claims: (1) Entitlement to a compensable disability evaluation for GERD; (2) Entitlement to service connection for hemochromatosis compound heterozygote and cirrhosis of the liver; (3) Entitlement to service connection for a skin rash; (4) Entitlement to service connection for degenerative arthritis; (5) Entitlement to service connection for fibromyalgia; (6) Whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for carpal tunnel syndrome; and (7) Entitlement to an earlier effective date for the grant of service connection for myofascial and vascular cephalgia; (8) Entitlement to DEA benefits under 38 U.S.C. Chapter 35. As already noted, the claim of entitlement to DEA benefits under Chapter 35 was subsequently granted in an April 2010 rating decision. The Veteran indicated in his April 2010 VA Form 9 that he did not desire a Board hearing at this time. However, in May 2010, VA received an additional VA Form 9 from the Veteran for the same issues indicating that he did in fact desire a Board hearing at his local RO. The Veteran's attorney clarified in a May 2013 letter that he did in fact desire a Travel Board hearing regarding these issues. Since the Veteran has not yet been afforded a hearing for the above benefits, the Board finds that he should be scheduled for a hearing on these matters before appellate review proceeds (with the exception of his claim for DEA benefits, as this has since been granted). The Veteran also suggested in his May 2010 VA Form 9 that he desired a hearing for the claims of entitlement to an earlier effective date for a lumbar spine disability (rated at 40 percent), entitlement to an increased disability evaluation for a lumbar spine disability, to include a rating in excess of 10 percent prior to July 11, 2000, and a rating in excess of 40 percent as of July 11, 2000, and entitlement to a disability evaluation in excess of 30 percent for a cervical strain. However, the Veteran should not be scheduled for an additional hearing regarding these issues, as he already provided testimony on these matters in August 2004. The Veteran has not provided VA with any reasons or bases as to why he believes a second hearing on these matters is necessary. Thus, his request for a second hearing on the issues of entitlement to an earlier effective date for a lumbar spine disability (rated at 40 percent), entitlement to an increased disability evaluation for a lumbar spine disability, to include a rating in excess of 10 percent prior to July 11, 2000, and a rating in excess of 40 percent as of July 11, 2000, entitlement to a disability evaluation in excess of 30 percent for a cervical strain is denied. Regarding the Veteran's claims of entitlement to increased disability evaluations for his service-connected cervical spine disability and his service-connected lumbar spine disability, the record reflects that the Veteran was last afforded a VA examination for these disabilities in December 2008. In a May 2010 statement, the Veteran asserted that the signs and symptoms of these disabilities, along with the limitations on his daily personal and professional activities, were not properly reflected by the currently assigned disability evaluations. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Since it has been more than 4 years since the last examination, and since the Veteran has continued to express that his disabilities are worse than the currently assigned disability evaluations, he should be provided the opportunity to appear for more recent examinations. This issue was also remanded by the Board in September 2007 so that an opinion could be provided as to whether the Veteran suffered from intervertebral disc syndrome due to his service-connected lumbar spine disability. According to the December 2008 VA examiner, the Veteran indeed suffered from intervertebral disc syndrome. However, the examiner concluded that this was not related to the Veteran's service-connected lumbar strain. No rationale or discussion was offered in support of this opinion. The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Therefore, the examiner assigned to undertake the new examination should include a full discussion when offering an opinion as to whether intervertebral disc syndrome is related to the service-connected lumbar spine strain. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, the Veteran contends that he is entitled to an effective date prior to July 11, 2000, for the assignment of a 40 percent disability evaluation for his service-connected lumbar spine strain. This issue is inextricably intertwined with the issue of entitlement to an increased disability evaluation for a chronic lumbar strain prior to July 11, 2000. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As such, the Board defers ruling on this matter until after the mandates of the Remand have been completed. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a Travel Board hearing at the RO in Detroit, Michigan at the first opportunity for the following issues only: (a) Entitlement to a compensable disability evaluation for GERD; (b) Entitlement to service connection for hemochromatosis compound heterozygote and cirrhosis of the liver; (c) Entitlement to service connection for a skin rash; (d) Entitlement to service connection for degenerative arthritis; (e) Entitlement to service connection for fibromyalgia; (f) Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for carpal tunnel syndrome; and (g) Entitlement to an earlier effective date for the grant of service connection for myofascial and vascular cephalgia; The Veteran should be notified of the time and place of this hearing and a copy of this notice should be incorporated into the claims file. 2. The Veteran should be asked to identify any current treatment providers for his cervical and lumbar spine disabilities. If the Veteran identifies any current treatment, VA should take all reasonable steps necessary to obtain these records. If any records cannot be obtained, then the Veteran should be notified of this fact in writing. The Veteran should also be asked to provide VA with any additional evidence he has regarding his claim of entitlement to an increased disability evaluation for his lumbar spine disability prior to July 11, 2000. 3. The Veteran should then be scheduled for a VA orthopedic examination of the thoracolumbar spine and the cervical spine to determine the current severity of his service-connected spine disabilities. The Veteran's claims file and a copy of this remand must be made available for review by the examiner and the examination report should reflect review of these items. All indicated tests and studies should be performed, and the examiner should describe in detail all symptomatology, both orthopedic and neurologic, associated with the Veteran's service-connected lumbar spine disability and his cervical spine disability. The examiner should also address pain on use, flare-ups, weakened movement, excess fatigability, or incoordination and discuss whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms during flare-ups or with repeated use. Specifically, the examiner should indicate the range of motion of both the cervical and the thoracolumbar spine in degrees, as well as whether there is evidence of favorable or unfavorable ankylosis of either spinal segment. The examiner should identify in degrees any additional range of motion loss due to pain on use, flare-ups, weakened movement, repetitive use, excess fatigability, or incoordination. The examiner should also address whether the Veteran suffers from intervertebral disc syndrome in either spinal segment, and if so, whether it is related to a service-connected spine disability(s). A full rationale should be offered in support of all opinions. If the Veteran is found to suffer from intervertebral disc disease related to a service-connected spinal disability, the examiner should address the following: (i) Specifically list all orthopedic and neurologic signs and symptoms which are due to the Veteran's disc disease. (ii) State whether each neurological and orthopedic sign and/or symptom found is constant or near constant. (iii) Describe the severity of each neurological and orthopedic sign and symptom due to the Veteran's service-connected chronic lumbar strain. (iv) State whether the medical evidence shows that the Veteran has incapacitating episodes (i.e., a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician). If so, what is the total duration of such incapacitating episodes in the past 12 months? A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 4. Issue the Veteran a statement of the case on the issue of entitlement to an effective date earlier than October 14, 2008, for the grant of service connection for diabetes mellitus. 5. The RO/AMC should then review the claims file and all additional development to ensure that the mandates of this remand have been satisfied. If additional development is deemed necessary, these steps should be taken prior to returning this case to the Board. 6. After completion of the above, the claims should be reviewed in light of any new evidence. If the claims are not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs