Citation Nr: 1331074 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-21 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists. 2. Entitlement to service connection for a skin disorder to include dermatitis and eczema. 3. Entitlement to an effective date prior to November 13, 1995, for the grant of service connection for a psychiatric disorder including posttraumatic stress disorder (PTSD) and a mood disorder. 4. Entitlement to an effective date prior to January 21, 2010, for the grant of service connection for a right cheek scar status post injury. 5. Entitlement to an effective date prior to April 3, 2008, for the grant of a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Robert P. Walsh, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1959 to January 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Previously, in November 2010 the Board remanded the case to the RO for additional development. Also on appeal at that time was the claim for a TDIU rating, which the RO subsequently granted (and thus is no longer in appellate status). Following additional development, the case was returned to the Board. In a September 2011 decision, the Board determined that new and material evidence had not been received to reopen the Veteran's claim of service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2013 Memorandum Decision, the Court reversed the Board's decision finding that new and material evidence had not been submitted, and remanded the case to the Board for further proceedings consistent with its decision. This case also comes to the Board on appeal of other rating decisions of the RO. A February 2011 rating decision granted the Veteran service connection for a right cheek scar status post injury, effective January 21, 2010; he appealed for an earlier effective date. An April 2011 rating decision granted the Veteran's claim for a TDIU rating; he appealed for an earlier effective date. A May 2011 rating decision, denied service connection for a skin disorder to include dermatitis and eczema, and denied an effective date prior to November 13, 1995 for the grant of service connection for a psychiatric disorder including PTSD and a mood disorder; he appealed this decision, arguing for service connection for the skin disorder and for an earlier effective date for the award of service connection for a psychiatric disorder. The issues of service connection for Epstein-Barr virus (on a new and material evidence basis) and of a higher rating for basal cell carcinoma of the left eyebrow, left medial canthus, and frontalium of the nose were raised by the Veteran in statements received in February 2012. Also, the issue of service connection for an eye disorder, claimed as due to exposure to radiation, was raised by the Veteran in an April 2013 statement. As these issues have not been adjudicated by the RO, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. The following claims are being REMANDED to the RO: service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists; service connection for a skin disorder to include dermatitis and eczema; and an effective date prior to April 3, 2008, for the grant of a TDIU rating. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. In a decision in December 2008, the Board denied the claim of service connection for degeneration of the bones, or arthritis; in an April 2013 Memorandum Decision, the U.S. Court of Appeals for Veterans Claims (Court) determined that the additional evidence presented since the Board decision in December 2008, to include treatise evidence, is not cumulative of evidence previously considered and could (by triggering VA's duty to assist) reasonably substantiate the claim of service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists, warranting reopening of the claim. 2. A December 2008 Board decision denied an effective date earlier than November 13, 1995 for the grant of service connection for a psychiatric disorder; it was not appealed; the Veteran has not filed a motion alleging clear and unmistakable error (CUE) in that decision. 3. In March 2011, the Veteran filed a claim for an earlier effective date for the grant of service connection for a psychiatric disorder to include PTSD and a mood disorder. 4. On January 21, 2010, the RO received the Veteran's claim of service connection for a right cheek scar status post injury; no earlier claim seeking service connection for such disability has been received. 5. A February 2011 rating decision granted service connection for a right cheek scar status post injury, effective January 21, 2010. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2013). 2. An effective date prior to November 13, 1995 is not warranted for the grant of service connection for a psychiatric disorder to include PTSD and a mood disorder. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2013). 3. An effective date prior to January 21, 2010 for the grant of service connection for a right cheek scar status post injury is not warranted. 38 U.S.C.A. §§ 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the petition to reopen the claim of service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists is being granted, discussion of the impact of the VCAA on that matter is not needed. As to the claim for an effective date prior to November 13, 1995, for the grant of service connection for a psychiatric disorder including PTSD and a mood disorder, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). The statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence, as is the case here. Dela Cruz, 15 Vet. App. at 149 (2001). In other words, no amount of additional evidentiary development would change the result of this case; therefore no VCAA notice is necessary. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute, and not the evidence, is dispositive of the claim"). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for an earlier effective date for a right cheek scar status post injury, inasmuch as the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose and its application was no longer required. See Dingess, supra, aff'd, Hartman v. Nicholson, 483 F. 3d. 1311 (Fed. Cir. 2007). A statement of the case (SOC) properly provided notice on the "downstream" issue of entitlement to an earlier effective date for the award. The Veteran and his attorney have had ample opportunity to respond. It is not alleged that notice in this matter was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was provided an opportunity to appear at a hearing, but he declined a hearing. Notably, in a claim seeking an earlier effective date for an award, the determination is generally based on the evidence already of record (and when it was received), and no further development is necessary. There is no indication of the existence of additional evidence that would serve to substantiate the earlier effective date claim. Hence, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. New and Material Evidence In a decision in December 2008, the Board denied service connection for degeneration of the bones, or arthritis, on the basis that the disability was not manifested in service or to a compensable degree within one year following his separation from service, and was unrelated to service. The Board decision in December 2008 was not appealed to the Court, and is final by operation of law. 38 U.S.C.A. §§ 7104(b). As the Board decision in December 2008 is final based on the evidence then of record, new and material evidence is required to reopen the claim. 38 U.S.C.A. § 5108. As the Veteran's application to reopen the claim was received after the December 2008 decision, the current regulatory definition of new and material evidence applies. "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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court endorsed a low threshold standard for reopening a claim. As noted by the Court, in determining whether additional evidence is new and material, consideration should not be limited to discerning whether newly submitted evidence relates specifically to the reason why a claim was last denied but should be asking whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. The evidence of record at the time of the Board decision in December 2008 included service treatment records, a December 2006 letter from the Defense Threat Reduction Agency, VA medical records including a June 2007 letter from a VA physician and an October 2007 VA examination report, general treatise/internet information on radiation exposure and skeletal impact, and hearing testimony. The additional evidence added to the file since the December 2008 Board decision includes written communications from the Veteran and his former representative, VA and private medical records, and the results of research conducted on the internet. The statements from the Veteran essentially reiterated his claims that his degenerative joint disease resulted from radiation exposure and/or a blast injury in service and are not new. The additional medical records continued to provide objective evidence of the presence of degenerative joint disease and are not material. The internet printouts pertaining to radiation and damage to bones, however, are both new and material evidence to reopen the claim. This is because the evidence could reasonably substantiate the claim were the claim to be reopened, by triggering VA's duty to assist. Such was the finding of the Court in its April 2013 Memorandum Decision, which reversed the Board's September 2011 decision that new and material evidence had not been submitted to reopen the claim. That decision is now the "Law of the Case". The Court discussed how the standard for reopening a claim was low, and acknowledged that treatise evidence alone was rarely sufficient to establish service connection. Nevertheless, the Court stated that the Veteran in this case did not need to establish service connection at this juncture but needed only to reopen his claim with evidence sufficient to establish entitlement to a medical examination or expert opinion. In declaring that the controlling guideline was that laid out in McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination where the record contains an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service), the Court found that the generic treatise evidence submitted in the present case in regard to the damaging effects of radiation on the joints was the kind of evidence that suggested a nexus but was "too equivocal or lacking in specificity to support a decision on the merits." Accordingly, the Court directed that the Veteran's claim be reopened, to provide the Veteran with a medical examination or opinion. Earlier Effective Dates Psychiatric Disorder In one of two separate decisions promulgated in December 2008, the Board denied an effective date prior to November 13, 1995 for the grant of service connection for a psychiatric disorder to include PTSD and a mood disorder. In May 2010, the Board denied the Veteran's motion to vacate its December 2008 decision, finding that his arguments emphasized disagreement with weighing and interpretation of the evidence, and with the application of law, which did not meet the requirements for vacating a Board decision under 38 C.F.R. § 20.904. The Veteran appealed the denial of an earlier effective date for the award of service connection for a psychiatric disorder to the Court. In a December 2010 Memorandum Decision, the Court affirmed the Board's December 2008 decision. See West v. Shinseki, No. 09-1185 (Vet. App. Dec. 7, 2010). Then, the Veteran appealed the Court's decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), which in December 2011 affirmed the Court's decision. See West v. Shinseki, 439 Fed.Appx. 909 (Fed. Cir. 2011). Because the record shows that the Board's December 2008 decision, denying an effective date prior to November 13, 1995 for the grant of service connection for a psychiatric disorder to include PTSD and a mood disorder, is final based on the evidence of record at the time of issuance, it is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision). The Veteran has not filed a Motion alleging CUE in the Board decision. Therefore, the December 2008 final Board decision is a legal bar to an effective date prior to the date of that decision. The Veteran has expressed disagreement with the Board's determination, arguing that the effective date should be retroactive to 1963 when he was separated from service because his psychiatric problems had onset in service. He also claimed in an October 2011 statement that he did not file a claim of service connection before April 1994 because he was under a legal obligation not to discuss classified defense information, specifically his participation in nuclear tests known as Operation Dominic I. These allegations were also considered by the Court in its December 2010 Memorandum Decision, which indicated that it may not use the principles of equity to circumvent the applicable statutory requirements, and by the Federal Circuit in its December 2011 Opinion, which indicated that it had no authority to fashion exceptions to the statutory requirements. Likewise, the Board is also bound by applicable statutes, as well as the regulations of the Department of Veterans Affairs and precedent opinions of the General Counsel of the Department of Veterans Affairs. See 38 U.S.C.A. §§ 511(a), 7104; 38 C.F.R. § 20.101. It is also without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2001); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In sum, there is no legal authority for the Board to set aside the finality of its December 2008 decision in the absence of an allegation (and showing) of CUE in that decision. Accordingly, as a matter of law, the claim seeking an effective date prior to November 13, 1995, for the grant of service connection for a psychiatric disorder to include PTSD and a mood disorder is not a valid claim for such benefit, and the appeal in the matter must be dismissed. See Rudd, supra,; See also Sabonis v. Brown, 6 Vet. App. 426 (1994). Right Cheek Scar The Veteran contends that the effective date for the grant of service connection for a right cheek scar status post injury should be prior to January 21, 2010. He asserted in a February 2011 statement that his payments for the scar disability should be retroactive to 1963, when he was discharged from service. He stated that the scar was the result of an injury sustained in a shipboard accident in July 1961, and that this information was of record. In support of his claim, he cited to the provision of 38 C.F.R. § 3.156(c), relative the retroactive evaluation of a disability resulting from injury subsequently service connected on the basis of receipt of new evidence from the service department. In a June 2011 statement, he asserted that although the accident causing his right cheek scar had occurred on the flight deck during service, upon his discharge from service it was not even mentioned. He claimed he should have been awarded a 10 percent disability rating for the injury at that time. The law provides that the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). The Veteran was separated from active duty in January 1963. The claims file shows that his initial VA compensation claim in reference to any disability was received in April 1994, more than 30 years after his military discharge, and it referred to recurring tumors claimed as due to radiation exposure. On his claim form, VA Form 21-526, in the box that requests the nature of the sickness, disease, or injuries for which he was making a claim, the Veteran indicated radiation exposure in the spring and summer of 1962. On another page of the form, where he was requested to furnish information regarding any treatment while in service, the Veteran noted a cut on his right cheek, and on a separate sheet of paper, he in part explained the origin of his right cheek cut (blown into a crane when a jet blast reflector failed). There is no indication that the Veteran expressed an intent to file a claim for the right cheek cut, particularly as he did not note a cheek disability within the box on the application that specifically requests such information. In that box, he indicated he desired benefits for disabilities that resulted from radiation exposure. When he noted a cheek laceration in service on his application, it was made in response to a query about what treatment he had received during service. The RO did not consider the right cheek cut on its initial rating decision in January 1995, and neither then nor at present has the Veteran indicated that a right cheek disability should have been addressed at that time. In an April 1996 statement, the Veteran mentioned that his right cheek was sewn up after having injured it on a flight deck, but such a statement is not construed as an expression to file a claim for the right cheek laceration because it was made in the context of his efforts to substantiate a claim of service connection for residuals of radiation exposure including orthopedic problems he was experiencing at that time (he has asserted that the accident in service wherein he was blown into a crane on a flight deck, resulting in a laceration of his right cheek, may also have been the onset of various musculoskeletal disabilities). The Veteran's initial claim of service connection for residuals of an injury to his face from a shipboard accident in July 1961 was received by the RO on January 21, 2010. In that claim, which was filed on a VA Form 9, he stated that he had suffered trauma in service during flight operations in July 1961. He specifically noted that he had sustained a "blast injury" to the face, in additional to other enumerated injuries. In a June 2011 statement, he clarified that it was "not a blast to the face," rather he had been blown about 40 feet into the Tilly (crane) aboard ship. He stated that this event was documented in the service treatment records, and indeed an entry in the record for July 11, 1961 indicates that there was a lacerated wound of 1.5 inches on the right cheek, which was cleansed and sutured. After reviewing the claims file, the Board finds that the record contains no evidence, received between the date of the Veteran's discharge from service in January 1963 and the RO's receipt of his claim on January 21, 2010, in which the Veteran has expressed an intent to file a claim for disability benefits (compensation) for the right cheek scar status post injury. 38 U.S.C.A. § 5101; 38 C.F.R. §§ 3.151, 3.155; Crawford v. Brown, 5 Vet. App. 33 (1993). As noted earlier, statements were made in 1994 and 1996 that referred to a right cheek injury; however, such statements when read in the context of the applications he was filing at those times do not demonstrate that it was the Veteran's aim or purpose to request entitlement to a benefit (disability compensation) in relation to the right cheek injury. His claim then was for disabilities resulting from radiation exposure, and the documented right cheek injury in service was clearly not caused by radiation. In that regard, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is 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 must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. In short, the file reflects that the earliest statement in which the Veteran communicated his intent to apply for service connection for the right cheek scar was the statement received by the RO on January 21, 2010, in which he specifically claimed service connection for "blast injury to the face." Thereafter, a VA examination in December 2010 showed that the Veteran had a diagnosis of a scar of the right cheek, currently not visible unless one manipulated the skin, without current residuals (not disfiguring), which substantiated the claim. The RO in a February 2011 rating decision, granted the Veteran's claim of service connection for a right cheek scar status post injury and assigned an effective date of January 21, 2010. Thus, as noted the operative date in this case for purposes of assigning an effective date for an award of service connection is the date of VA receipt of the claim, which comes after the date entitlement arose. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). For the above-stated reasons, the RO assigned the correct effective date for the award of service connection for a right cheek scar status post injury, and an effective date earlier than January 21, 2010 is not warranted. The Board acknowledges the Veteran's contention that 38 C.F.R. § 3.156(c) supports his claim for an effective date retroactive to 1963 when he was discharged from service. Such a provision is applicable under circumstances where the Veteran is attempting to reopen a claim of service connection for a disability that had previously been denied, with new evidence from a service department that had not been considered in the previous adjudication of the claim. Here, the Veteran had not raised a claim of service connection for his right cheek disability until January 2010, and the claim was initially adjudicated in February 2011. Thus, 38 C.F.R. § 3.156(c) has no applicability in this matter. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER The appeal to reopen a claim of service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists is granted. The appeal seeking an effective date prior to November 13, 1995, for the grant of service connection for a psychiatric disorder including PTSD and a mood disorder, is dismissed. An effective date prior to January 21, 2010, for the grant of service connection for a right cheek scar status post injury, is denied. REMAND Under VA's duty to assist, proper adjudication of the claim of service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists on the merits, requires additional evidentiary development, including a VA examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). This development was specifically directed by the Court in its April 2013 Memorandum Decision. Regarding the claim of service connection for a skin disorder to include dermatitis and eczema, in a statement received in October 2011 the Veteran alleged that his skin conditions were related to his exposure to radiation during service. A March 2004 VA examination report indicates that the Veteran had a lack of hair on his legs and arms, and that the reason for this may be his exposure to radiation. The report went on to state that the Veteran had a history of eczema on his lower legs and arms, which he reportedly had had "since coming back and getting out of the service." VA and private medical records from the 1990s to the present show various skin diagnoses, to include actinic keratoses, tinea pedis, eczema versus tinea manus, and xeroderma. Under VA's duty to assist, additional evidentiary development is needed, including a VA examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claim for an effective date prior to April 3, 2008, for the grant of a TDIU rating, an April 2011 rating decision granted the Veteran TDIU effective April 3, 2008. In a May 2011 statement, he expressed his disagreement with the effective date, arguing that the award should have been granted back to 1995. The filing of a notice of disagreement signals the initiation of an appeal in a claim. See 38 C.F.R. § 20.200. When there has been adjudication by the RO and a timely notice of disagreement has been filed, a SOC addressing the issue must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). The RO has not issued the Veteran a SOC on the issue of an earlier effective date for the grant of a TDIU rating. Accordingly, the case is REMANDED for the following: 1. Schedule the Veteran for a VA orthopedic examination to determine whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists is related to his period of service from January 1959 to January 1963, to include as due to exposure to ionizing radiation during his participation in atmospheric nuclear testing at Johnston Island in 1962 (Operation Dominic I) and/or as the result of injuries allegedly sustained when he was blown into the "Tilly" when a jet blast deflector failed and he was picked up and thrown across the deck of an aircraft carrier in July 1961. In formulating the opinion, the VA examiner is asked to consider, and address as needed, the following: a December 2006 letter from the Defense Threat Reduction Agency (DTRA), showing that the total skin dose the Veteran could have received to any skin area during participation in the U.S. atmosphere nuclear testing was not more than 550 rem.; a March 2012 letter from DTRA, showing that the internal doses to ill-defined organs the Veteran could have received during his participation in Operation Dominic I were not more than 1.5 rem (alpha) or 8 rem (beta plus gamma); service treatment records, which do not show treatment for degenerative of the bones; a June 2007 letter from a VA physician, finding that X-ray studies (including those from 1992 to 1997) were compatible with age-related degenerative changes but could not exclude the possibility that earlier traumatic events may have contributed to the degenerative process; and an October 2007 VA examination report, indicating that the Veteran's joint complaints were less likely than not caused by or a result of the blast injury or radiation exposure in service. The Veteran's file must be made available to the VA examiner for review. 2. Schedule the Veteran for a VA dermatologic examination to determine whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed skin disorder to include dermatitis and eczema is related to his period of service from January 1959 to January 1963, to include as due to exposure to ionizing radiation during his participation in atmospheric nuclear testing at Johnston Island in 1962 (Operation Dominic I). The examiner need not address the Veteran's basal cell carcinoma of the left eyebrow, left medial canthus, and frontalium of the nose, which has already been related to in-service radiation exposure (and is service connected). In formulating an opinion, the VA examiner is asked to consider, and address as needed, the following: service treatment records, which do not show treatment for a skin disorder; a December 2006 letter from the Defense Threat Reduction Agency (DTRA), showing that the total skin dose the Veteran could have received to any skin area during participation in the U.S. atmosphere nuclear testing was not more than 550 rem.; post-service medical records, beginning in the 1990s, showing complaints of skin lesions and various diagnoses including actinic keratoses, tinea pedis, xeroderma, atopic dermatitis and eczema (e.g., a March 2004 VA examination report notes a history of eczema on the lower legs and arms, and a January 2012 record notes a long history of a rash on the feet and hands). The Veteran's file must be made to the VA examiner for review. 3. Furnish the Veteran and his attorney a SOC on the claim for an earlier effective date for the grant of a TDIU rating. In order to perfect an appeal to the Board, the Veteran must timely file a substantive appeal after issuance of the SOC. 4. After the development sought above is completed, adjudicate the claim of service connection for degenerative joint disease of the neck, low back, shoulders, hips, elbows, knees, ankles, and wrists, and the claim of entitlement to service connection for a skin disorder to include dermatitis and eczema. If the benefits sought are denied, furnish the Veteran and his representative a supplemental SOC and return the case to the Board. 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 that are remanded by the Board or 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs