Citation Nr: 1325237 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 07-03 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for polycythemia vera (also claimed as myelofibrosis). 2. Entitlement to an effective date earlier than January 23, 2008, for a 10 percent rating for left middle neuropathy due to trauma from shrapnel. 3. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. 4. Whether new and material evidence has been received to reopen a claim for service connection for non-alcoholic steatohepatitis. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from March 1966 to February 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A March 2006 rating decision denied the claims for service connection for myelofibrosis (now diagnosed and claimed as polycythemia vera) and steatohepatitis. A June 2008 rating decision granted service connection for diabetes mellitus, type II, and assigned an evaluation of 20 percent for this disability effective from June 3, 2008; the Veteran seeks a higher evaluation. An August 2009 rating decision granted a 10 percent evaluation of left middle neuropathy due to trauma from shrapnel, effective from January 23, 2008; the Veteran seeks an earlier effective date for the 10 percent evaluation. The Virtual VA paperless claims processing system contains an electronic copy of records of treatment at the Ellis Fischel Cancer Center, from October 2009 to July 2011. The Veteran's claim for service connection for polycythemia vera was initially one for service connection for myelofibrosis. A diagnosis of polycythemia vera for the claimed condition was rendered at the Mayo Clinic in August 2006, during the course of this appeal, and the Veteran revised the characterization of the disorder for which he was seeking service connection from myelofibrosis to polycythemia vera. A January 2013 VHA medical specialist has explained that polycythemia vera is a condition that is part of a group of blood disorders collectively referred to as myeloproliferative disorders. In light of these developments, the claim for service connection for myelofibrosis is now characterized as one for polycythemia vera (also claimed as myelofibrosis). See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claimant seeking service connection for disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as claimant's description of history and symptoms; VA should construe claim for service connection based on reasonable expectations of non-expert claimant). The Veteran provided testimony at an August 2012 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. At his August 2012 Board hearing, the Veteran indicated that he had made a deliberate decision to proceed in his claims before VA without representation. The undersigned recommended to the Veteran that he obtain representation in this matter but he declined to do so. At his August 2012 Board hearing, and in correspondence received in September 2012, the Veteran waived initial consideration by the RO of newly received evidence submitted in support of his claims. Thus, the Board will consider the additional evidence in conjunction with this appeal. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. Polycythemia vera (also claimed as myelofibrosis) is not related to his exposure to Agent Orange and benzene during his period of service in Vietnam. 2. Polycythemia vera (also claimed as myelofibrosis) was not manifest during service and is unrelated to service. 3. The Veteran's claim for an increased rating for left middle neuropathy due to trauma from shrapnel (previously characterized as shell fragment wound, with decreased sensation, left cheek and lower lip) was received on January 23, 2008; there is no evidence of worsening of the condition within one year prior to the claim for increase. 4. The Veteran does not require insulin for control of his diabetes mellitus, type II. The Veteran does not require regulation of activities. 5. At an August 2012 Board hearing, the Veteran expressed his desire to withdraw his appeal to reopen his claim for service connection for steatohepatitis. CONCLUSIONS OF LAW 1. Polycythemia vera (also claimed as myelofibrosis) was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2012). 2. The criteria for an effective date earlier than January 23, 2008, for a 10 percent rating for left middle neuropathy due to trauma from shrapnel are not met. 38 U.S.C.A. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400 (2012). 3. The criteria for a disability evaluation in excess of 20 percent for diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.119, Diagnostic Code 7913 (2012). 4. The appeal for service connection for steatohepatitis is withdrawn and dismissed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.101(d) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Appeal to Reopen Claim for Service Connection for Steatohepatitis Withdrawn At his August 2012 Board hearing, the Veteran expressed his desire to withdraw his appeal to reopen his claim for service connection steatohepatitis. See August 2012 Board hearing transcript, pages 3-4. By regulation, his notice of disagreement and substantive appeal as to these issues are therefore deemed withdrawn. See 38 C.F.R. § 20.204. As a result, the Board lacks jurisdiction over this issue, and the appeal as to this is dismissed. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.101(d). Duty 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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); 38 C.F.R. § 3.159(b); 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). A December 2005 VCAA notice letter explained the evidence necessary to substantiate the claim for service connection for myelofibrosis. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This letter was provided prior to initial adjudication of the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In March 2006 the Veteran was provided a notice letter (a copy of which is associated with the Virtual VA claims file) explaining how effective dates and disability evaluations are determined in awards for Veterans' compensation benefits, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim for a higher initial rating for diabetes mellitus, type II, is an initial rating claim, since it arises from a notice of disagreement with the initial award of a rating of 20 percent in a June 2008 RO rating decision. With the grant of service connection the Veteran's claim was not only substantiated, it was proven, so that the purpose of VCAA notice had been fulfilled. Thus no further VCAA notice was required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). A December 2008 VCAA notice letter explained the evidence necessary to substantiate the claim for service connection for what was first characterized as a claim for myelofibrosis, a condition which in May and August 2006 was more definitively diagnosed as polycythemia vera. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This letter also explained how effective dates and disability evaluations are determined in awards for Veterans' compensation benefits, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In August 2009, the RO issued to the Veteran a letter describing what was required to substantiate a claims for higher disability ratings, how disability ratings are assigned, and his and VA's roles in obtaining evidence to substantiate his claims. In May 2010, the Veteran was again provided VCAA notice with respect to his claim for service connection for polycythemia vera, and the prior VCAA notice was supplemented in light of his contentions that the condition was due to Agent Orange and benzene exposure. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This letter additionally explained how effective dates and disability evaluations are determined in awards for Veterans' compensation benefits, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In September 2011, the RO provided VCAA notice as to six claims, including what it somewhat inaccurately characterized as a claim for increase for left middle neuropathy due to trauma from shrapnel; in that letter, however, the Veteran was again informed as to his and VA's role in obtaining evidence, and the manner in which effective dates and disability ratings are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim for an effective date earlier than January 23, 2008, for a for a 10 percent rating for left middle neuropathy due to trauma from shrapnel, the Board notes that the Veteran received on several occasions notice as to how effective dates are assigned in claims for compensation benefits. In letters to VA, the Veteran has indicated that he sought an effective date for a 10 percent rating for this disability dating back to December 1966, when the in-service shrapnel injury occurred. The Veteran specifically acknowledges that "[t]he VA has increased my percentage rating by 10% and paid back to the date of that claim-2008." See August 5, 2010, letter from Veteran to U.S. Congressman; letter from Veteran dated October 13, 2010; letter from Veteran dated December 28, 2010. The determination with respect to the Veteran's earlier effective date claim turns on when the Veteran filed his claim for an increased rating and on the earliest effective date allowed by law. There is no indication or suggestion from the Veteran of any claim he believes was filed but is not associated with the claims file. The undersigned explained to the Veteran at the August 2012 Board hearing that his basis for seeking an earlier effective date was not clear, and that in order to establish an earlier effective date for the increase to 10 percent for left middle neuropathy due to trauma from shrapnel he would generally have to show an earlier date of claim for increase than the currently assigned effective date, though the undersigned did acknowledge that certain exceptions existed. The Veteran indicated that he had no knowledge of having submitted such an earlier claim. As will be discussed below, the Board can find no legal basis to award an earlier effective date for the increased rating. As a result, with no basis in the record or legally sufficient contention provided by the Veteran, any further notice or development as to this matter would not give rise to a reasonable possibility of substantiating the claim, and further notice and development as to the matter is not warranted. The VCAA recognizes certain circumstances where VA will refrain from or discontinue providing assistance. VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R § 3.159(d). See also VAOPGCPREC 5-2004 (holding that under 38 U.S.C.A. § 5103(a), the Department of Veterans Affairs (VA) is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, and that under 38 U.S.C. § 5103A, VA is not required to assist a claimant in developing evidence to substantiate a claim where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The Board notes that the Veteran has proceeded before the Board unrepresented in this appeal. At his August 2012 Board hearing the undersigned discussed with the Veteran the benefits and advantages of representation and avenues through which he might obtain representation; the Veteran indicated clearly that he nevertheless wished to proceed unrepresented before the Board. As noted, the Veteran was afforded an opportunity to present testimony at an August 2012 hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issues on appeal, explained the concepts of service connection, increased ratings and earlier effective dates, identified evidentiary deficits, and suggested the submission of additional evidence to support the Veteran's appeal. The VLJ also left the record open for a 60-day period following the hearing to allow for the submission of such additional evidence. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, the Veteran's Social Administration (SSA) disability records, reports of VA examinations, and a report of a VHA expert medical opinion. See 38 U.S.C.A. § 5103A(a)- (d). When VA undertakes to provide a VA examination or obtain a VA opinion, it should ensure that the examination or opinion is adequate. There is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. The April 2012 VA examination report pertaining to the Veteran's diabetes mellitus, type II, contains all findings necessary for application of the pertinent rating criteria and sufficient explanations for the pertinent findings. See 38 U.S.C.A. § 5103A(d). Accordingly, the April 2012 VA examination fulfills VA's duty to provide an examination and is of a high probative value. Additionally, a January 2013 VHA medical opinion report was prepared by a physician expert in hematology/oncology, includes a detailed and accurate recitation of the relevant medical history, and contains fully reasoned explanations for the opinions provided, with citations to selected references. Accordingly, the VHA medical opinion fulfills VA's duty to obtain a medical opinion on the issue of service connection for polycythemia vera (also claimed as myelofibrosis) and is of a very high probative value. Because the determinative factor on the issue of entitlement to an effective date prior to January 23, 2008, for a 10 percent rating for left middle neuropathy due to trauma from shrapnel is the date of receipt of the Veteran's claim for increase, a VA examination and opinion would have no bearing on resolution of the appeal as to this matter and is not required. There is no reasonable possibility that such an examination would substantiate the Veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the claimant in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate each claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Merits of the Claims The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Polycythemia Vera (also claimed as myelofibrosis) Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Polycythemia vera and myelofibrosis are not among the chronic diseases listed at 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Accordingly, a presumption of service connection for these conditions is not warranted pursuant to the provisions of 38 C.F.R. §§ 3.307 and 3.309(a), and the provisions of 38 C.F.R. § 3.303(b) are not applicable. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the merits on the issue of service connection, there must be competent evidence of current disability; competent evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report the existence of the diagnosis as related to him by health-care professionals. However, he does not have expertise as to the causes of the disability, so that the medical opinions of physicians practicing in an appropriate filed of medicine carry a higher probative weight in this case. In this case, the appellant's lay evidence is accorded no greater value than the supporting evidence that he has submitted. Here, the supporting evidence is either lacking in substantive reasoning or is general in nature. As such, the lay evidence is accorded some, but relatively little probative value. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). Thus, the Veteran, having served in Vietnam during the applicable time frame, is presumed to have been exposed to Agent Orange during active service. Additionally, the diseases listed at 38 C.F.R. § 3.309(e) shall be presumed to be due to exposure to such herbicide agents if they have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). The diseases listed at 38 C.F.R. § 3.309(e) are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Because polycythemia and myelofibrosis are not among the diseases listed at 38 C.F.R. § 3.309(e), the Veteran's claimed disability is not presumed to be a result of in-service exposure to certain herbicide agents, to include Agent Orange. In addition, the United States Court of Appeals for the Federal Circuit has held that a veteran is not precluded by presumptive laws and regulations from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As noted, the Veteran had active service from March 1966 to February 1967. The Veteran arrived in Vietnam in September 1966, where he remained until December 1966, when he sustained multiple injuries from an explosion while on patrol. He claims that he has developed myelofibrosis and/or polycythemia vera as a result of exposure to Agent Orange while he was in Vietnam. He also contends that he was exposed to benzene. He believes that the Agent Orange contained benzene, and also states that cleaning fluids, which were used to clean weapons, contained benzene. He states that the weapons had to be constantly cleaned. A March 2006 VA examination report indicates that a bone marrow biopsy and aspirate in September 2005 had revealed myelofibrosis (see claims file, Volume 4). The March 2006 VA examiner found that there was no evidence of leukemia. In May 2006, the Veteran was referred to the Mayo Clinic, and after extensive work-up, in August 2006, he was diagnosed as having polycythemia vera. Subsequent records of the Veteran's treatment at the University of Missouri Health Care Ellis Fischel Cancer Center show his follow-up treatment and evaluation for JAK2-positive myeloproliferative disorder manifesting as polycythemia vera and essential thrombocytosis (claims file volume 5). In a letter dated in August 2012, a VA physician practicing in the areas of hematology/oncology wrote that he was providing care for the Veteran for his myeloproliferative disorder with myelofibrosis, essential thrombocythemia and polycythemia vera. He noted that the Veteran was a Vietnam veteran and was exposed to carcinogenic Agent Orange. He opined that the Veteran's myeloproliferative disorder was more likely than not cause by exposure to Agent Orange. However, because the August 2012 VA physician's opinion is very brief, and does not provide an explanation for the opinion provided, it is afforded a very limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (neither a VA examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions; most of the probative value of a medical opinion comes from its reasoning). In January 2013, a VHA medical expert practicing in the area of hematology/oncology provided a very accurate and detailed recitation of the relevant medical history, with expert analysis as to the significance of certain aspects of the record and fully reasoned explanations for his opinions. The opinion was obtained pursuant to the Board's authority to do so as set forth at 38 C.F.R. § 20.901. The Veteran was afforded the opportunity to provide evidence and argument in response to the opinion. The Veteran provided additional evidence and argument in March 2013, waived consideration of the new evidence, and requested that the Board immediately proceed with the adjudication of his appeal. The VHA medical expert's January 2103 written medical opinion, set forth in full directly below, provided as follows: I was asked to provide a medical opinion to answer the specific question as to whether the appellant's myeloproliferative disorder is related to Agent Orange and/or benzene exposure during his months of Vietnam service. I have reviewed the medical records that were made available to me in formulating this opinion. The appellant [Veteran's initials omitted] was in Vietnam from September of 1966 to December of 1966. During this time he reports that he had significant exposure to Agent Orange and benzene. He was first diagnosed with a hematological disorder in approximately 2004 or 2005 when he had a bone marrow biopsy to evaluate an elevation in platelet count at a VA hospital in St. Louis. He subsequently underwent a very extensive evaluation by a Dr. Hogan at the Mayo Clinic in the summer of 2006 to further evaluate the blood abnormalities and had second bone marrow biopsy as part of this evaluation. The findings on the bone marrow biopsy were consistent with a diagnosis of polycythemia vera and this diagnosis was further supported/confirmed by the presence of JAK-2 mutation, which is a hallmark of the disease. Dr. Hogan's consultation report notes that the platelets were thought to be elevated as far back as 2001 or 2002. (I am able to find reports going back to at least 2003 in the available records.) This would suggest that the condition was present as early as 2001 even if it had not been yet diagnosed. Following this diagnosis from approximately 2007 to 2011, he was under the care of a Dr. Doll and a Dr. Hopkins and their associates at the Ellis Fischel Cancer Center at the University of Missouri. During this time he was treated with the chemotherapy agents hydroxyurea and anagrelide. He now appears to be under the care of a VA hematologist [name of hematologist omitted for purposes of Board decision]. Polycythemia vera, is a condition that is part of a group of blood disorder[s] collectively referred to as myeloproliferative disorders. These are hematological neoplasms. Some patients require only phlebotomy and aspirin as treatment. Others require forms of chemotherapy such as hydroxyurea and anagrelide. The course can be variable but left untreated the disease can be lethal in a matter of months to a few years. With treatment individuals may live significantly longer, often for years. Some patients who do not respond to treatment ultimately require consideration of a bone marrow transplant. Some patient[s] will also progress on to develop acute leukemia which is extremely difficult to treat when it has arisen from a pre-existing myeloproliferative disorder. With respect to the appellant's exposure to Agent Orange, while some hematological malignancies have been linked to Agent Orange exposure, polycythemia vera is not recognized as a "presumptive disease." I am not aware of an established causal connection with polycythemia vera and could not find strong evidence in the medical literature to support or refute a connection between Agent Orange and polycythemia vera. With respect to the appellant's exposure to benzene, benzene has been causally linked most strongly to the hematological conditions of acute myelogenous leukemia and to myelodysplastic syndromes. These are distinct entities from polycythemia vera. I am not aware of nor could find strong evidence in the medical literature to support or refute a connection between benzene exposure and polycythemia vera. There are conflicting reports, with authors concluding that more study is needed before conclusions can be drawn. There has been some suggestion of familial clustering of myeloproliferative neoplasms, but this is not clearly established and I do not feel the lack of a family history of hematological disorders implicates his chemical exposures. Another aspect that sometimes would suggest a chemical exposure contribution would be development of a condition outside of the normal age parameters. Based on the reported presence of elevated platelet counts as far back as 2001, the appellant would have been in his early to mid-fifties at the time of developing this condition. The reported median age at the time of diagnosis of polycythemia vera has varied and the incidence increases with age. Diagnosis before age 50 is uncommon but reported. Therefore, in my opinion the appellant does not fall outside of what I would expect as a typical age range at diagnosis. Overall, given a lack of strong medical evidence to the contrary, it is my opinion that the appellant's myeloproliferative disease is less likely than not related to Agent Orange and/or benzene during his months of Vietnam service. In support of his opinion, the VHA medical expert cited to five selected medical references pertaining to myeloproliferative neoplasm, polycythemia vera, and benzene as a carcinogen. Because the January 2013 VHA medical expert opinion was provided by a physician expert in a relevant field of medicine, is based on a very accurate and detailed recitation of the relevant medical history, and included expert analysis as to the significance of salient aspects of the record and fully reasoned explanations for the opinions provided, with selected references, it is of a very high probative value. The August 2012 medical opinion in support of the Veteran's claim from a treating VA hematologist/oncologist is of a lower probative value because it does not cite to the relevant medical history or to relevant studies and does not provide an explanation for the medical opinion provided. The Board notes that the Veteran has submitted medical articles relevant to the possible long-term effects of exposure to Agent Orange and benzene; however, the January 2013 VHA expert opinion acknowledges the possible effects of Agent Orange and benzene but finds that under the specific facts of this case, including factors such as the date of onset of the Veteran's vera polycythemia and the inconclusive nature and conflicting conclusions of the relevant medical studies, that it was less likely than not that the Veteran's myeloproliferative disorder was related to Agent Orange and/or benzene exposure during his months of Vietnam service. As a result, the Board finds the VHA medical expert opinion, reasoned under and addressing the specific facts of this case, to be of much greater probative value than the much more general medical articles submitted by the Veteran in support of his claim. The Board further notes that the Veteran has submitted prior VA decisions in which it was found that polycythemia vera was related to exposure to benzene during active service. The Board notes, however, that the medical opinion received from the January 2013 VHA medical expert takes into account the specific facts and medical history of this case, and therefore is of far greater probative value in adjudicating the matter at hand. Regardless, the prior decisions of the Board are not controlling as to the facts in a different case. In sum, the Board finds that the evidence of greatest probative weight is the January 2013 VHA medical expert opinion and that this opinion outweighs all other evidence of record on the matter of whether the Veteran's myeloproliferative disorder, diagnosed as polycythemia vera, is related to Agent Orange and/or benzene exposure during his months of Vietnam service. Accordingly, service connection for polycythemia vera (also claimed as myelofibrosis) is not warranted. As the preponderance of the evidence is against the claim service connection for polycythemia vera (also claimed as myelofibrosis), the benefit of the doubt doctrine is not for application in resolution of this aspect of the Veteran's appeal. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Effective date earlier than January 23, 2008, for a 10 percent rating for left middle neuropathy due to trauma from shrapnel The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an award of increased compensation to a Veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year of such date. Otherwise, the effective date is the date of receipt of claim. 38 U.S.C.A. § 5110(b)(2); 3.400(o)(2). Under 38 U.S.C.A. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). A claim is defined as "'a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a). In a rating decision dated in November 2000, the RO granted service connection for a cranial nerve disorder, specifically characterized by the RO at that time as a shell fragment wound, with decreased sensation of the left cheek and lower lip, and assigned a noncompensable rating, effective from May 3, 1996. The Veteran did not submit a notice of disagreement within one year of December 2000 notice of the rating assigned and the decision became final. See 38 U.S.C.A. § 7105. On January 23, 2008, the RO received from the Veteran a claim for increased ratings for his service-connected disabilities. At a July 2009 VA dental examination, the Veteran was diagnosed as having left middle nerve neuropathy secondary to trauma from shrapnel. The Veteran was noted to complain of numbness of the left lower lip, resulting in drooling from the corners of the mouth on that side and sometimes biting the lip on that side. He also complained of discomfort in that area when out in cold weather and sometimes when the lip is touched. On examination in July 2009, X-rays showed a 2 x 6 mm piece of shrapnel over the area of the middle foramen. On clinical examination, the areas of altered sensation were found to be consistent with the distribution of the middle nerve. As a result, in a rating decision dated in August 2009, the RO granted a higher evaluation of 10 percent for left middle neuropathy from shrapnel, indicated by the RO to have been previously rated as shell fragment wound, with decreased sensation, left cheek and lower lip. The higher evaluation was granted effective from January 23, 2008, the date of claim for increase. See 38 U.S.C.A.§ 5110(b); 38 C.F.R. § 3.400(o)(2). The rating of 10 percent was assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8207, based on incomplete, moderate paralysis of the nerve. In letters to VA, the Veteran has indicated that he seeks an effective date for a 10 percent rating for this disability dating back to December 1966, when the in-service shrapnel injury occurred. The Veteran specifically acknowledges that "[t]he VA has increased my percentage rating by 10% and paid back to the date of claim-2008." See August 5, 2010, letter from Veteran to U.S. Congressman; see also letter from Veteran dated October 13, 2010; letter from Veteran dated December 28, 2010. The determination with respect to the Veteran's earlier effective date claim turns on when the Veteran filed his claim for an increased rating. There is no indication or suggestion from the Veteran of any claim he believes was filed but is not associated with the claims file. As noted, the undersigned explained to the Veteran at the August 2012 Board hearing that his basis for seeking an earlier effective date for a rating of 10 percent was not clear, and that in order to establish an earlier effective date for the increase to 10 percent for left middle neuropathy due to trauma from shrapnel he would generally have to show an earlier date of claim for increase than the currently assigned effective date, though the undersigned did acknowledge that certain exceptions existed. The Veteran indicated that he had no knowledge of having submitted such an earlier claim. The Board can find no legal basis to award an earlier effective date for the increased rating. Subsequent to the award of service connection and a noncompensable rating in November 2000, the Board can find no date of claim for an increased rating for this disorder earlier than the currently assigned effective date of January 23, 2008. Additionally, there is no indication or contention of a worsening of the Veteran's condition within one year prior to the January 23, 2008, date of claim for increase. Accordingly, an effective date earlier than January 23, 2008, for a 10 percent rating for left middle neuropathy from shrapnel is not warranted. As the preponderance of the evidence is against the claim for an effective date earlier than January 23, 2008, for a 10 percent rating for left middle neuropathy from shrapnel, the benefit of the doubt doctrine is not for application in resolution of this aspect of the Veteran's appeal. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Evaluation in Excess of 20 Percent for Diabetes Mellitus The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In this case, worsening of the Veteran's diabetes mellitus, type II, to a degree warranting a rating in excess of 20 percent is not shown at any time during the relevant rating period. Accordingly, staged ratings are not warranted. A 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 40 percent disability evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent disability evaluation is warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Id. A 100 percent evaluation is contemplated for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus progressive loss of weight and strength or complications that would be compensable if separately evaluated. Id. A June 2008 VA treatment record indicates that the Veteran was diagnosed as having diabetes mellitus, type II, and that he was receiving metformin for his diabetes. As noted, in a June 2008 rating decision the RO granted service connection for diabetes mellitus, type II, and assigned an evaluation of 20 percent for this disability, effective from June 3, 2008. A VA record of treatment in November 2009 indicates that the Veteran was being treated for diabetes mellitus, type II, with an onset two years prior, and that he did not require insulin. It was found by a VA optometrist that the Veteran did not have diabetic retinopathy. At a VA examination in April 2012, the Veteran was diagnosed as having diabetes mellitus, type II. It was noted that the Veteran's disorder was managed by restricted diet and that the Veteran was prescribed oral hypoglycemic agents. It was indicated that the Veteran was not prescribed insulin and that the Veteran did not require regulation of activities as part of medical management of his diabetes mellitus. He was noted to visit his diabetic care provider for episodes of ketoacidosis less than two times per month. He was noted to have experienced no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. The Veteran was noted not to have experienced progressive loss of strength attributable to diabetes mellitus. He was noted to experience peripheral neuropathy of the upper and lower extremities and erectile dysfunction as a consequence of his diabetes mellitus, type II. He was noted not to experience any cardiac condition, hypertension, renal disease, peripheral vascular disease, eye condition other than diabetic retinopathy or other permanently aggravated condition was a result of his diabetes mellitus, type II. The Veteran's diabetes mellitus, type II, was noted not to impact his ability to work. In May 2012, subsequent to the currently appealed June 2008 RO rating decision, the RO granted service connection for disorders as secondary to diabetes mellitus, type II, including erectile dysfunction, rated as noncompensably disabling, though he was granted special monthly compensation for this disability based on loss of use of a creative organ; and peripheral neuropathy of the right upper, left upper, right lower, and left lower extremities, rated as 10 percent disabling for each extremity. The Veteran has not appealed the effective dates or ratings assigned with respect to these determinations. As noted, apart from separately rated conditions of peripheral neuropathy and erectile dysfunction, the Veteran is currently evaluated at 20 percent for his diabetes mellitus, type II. The next higher rating of 40 is not warranted unless the condition requires insulin, restricted diet, and regulation of activities. The evidence shows without contradiction that treatment of the Veteran's diabetes mellitus has not required insulin at any time from June 2008 forward. There is no evidence or contention to the contrary. Treatment records and competent histories as related by the Veteran indicate that he does not use insulin. Consequently, a rating in excess of 20 percent for diabetes mellitus, type II, is not warranted. 38 C.F.R. § 4.119, Diagnostic Code 7913. Equally important, there is no proof or the need for regulation of activities. As the preponderance of the evidence is against the claim for an evaluation of 20 percent for diabetes mellitus, type II, the benefit of the doubt doctrine is not for application in resolution of this aspect of the Veteran's appeal. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board has considered whether this matter should be referred to the Director, Compensation and Pension Service, for extraschedular consideration for rating of the Veteran's service-connected diabetes mellitus, type II. The governing norm in such exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the rating criteria directly address the symptoms of the Veteran's diabetes mellitus, type II, such as the need for oral hypoglycemic agent and restricted diet. Accordingly, referral to the Director, Compensation and Pension, for extraschedular consideration is not warranted. ORDER Entitlement to service connection for polycythemia vera (also claimed as myelofibrosis) is denied. An evaluation in excess of 20 percent for diabetes mellitus, type II, is denied. An effective date earlier than January 23, 2008, for a 10 percent rating for left middle neuropathy due to trauma from shrapnel is denied. The appeal for service connection for steatohepatitis is withdrawn and dismissed. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs