Citation Nr: 1335301 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-16 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for chronic fatigue syndrome. 2. Entitlement to a disability evaluation higher than 30 percent for hiatal hernia. 3. Entitlement to a compensable disability rating for scars due to lipoma removal, on the right forearm, right chest, right lumbar back, right flank, and left flank. 4. Entitlement to a disability rating higher than 10 percent for a scar from lipoma removal, on the abdomen. 5. Entitlement to a disability rating higher than 10 percent for a scar from lipoma removal, on the lower back. 6. Entitlement to a disability rating higher than 10 percent for scars from lipoma removal, on the right shoulder, thigh, left forearm, and scrotum. 7. Entitlement to an earlier effective date for service connection for a lower back disorder. 8. Entitlement to an earlier effective date for service connection for a bilateral knee disorder. 9. Entitlement to an earlier effective date for a 30 percent rating for service-connected hiatal hernia. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has reviewed the Veteran's entire claims file, to include documents of record in his virtual VA folder. No new and relevant evidence has been included in the claims file since the most recent Supplemental Statement of the Case (SSOC) dated in December 2012. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). In the decision below, the Board will deny the Veteran's claim to reopen service connection for chronic fatigue syndrome (CFS) and will deny his claim for increased rating for a hiatal hernia. The claims for higher ratings for scars, and the claims for earlier effective dates, will be addressed in the REMAND portion of the decision below and will be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Although the Board will deny the Veteran's claim to reopen service connection for CFS, the Board nevertheless refers to the Agency of Original Jurisdiction (AOJ) an issue that relates to the claim to service connection for CFS. Medical evidence of record indicates that a sleep apnea disorder, which may contribute the Veteran's fatigue, may be related to one or more service-connected disorders. The Board does not have jurisdiction over a service connection claim for sleep apnea because it has not been adjudicated by the AOJ. The issue is therefore referred to the AOJ for appropriate action. The Board also refers to the AOJ a claim for an earlier effective date for the grant of Dependents' Educational Assistance (noted in an August 2009 RO memorandum of record). As with the claim regarding sleep apnea, the Board has no jurisdiction of this claim because it has not been adjudicated by the AOJ. In statements of record, the Veteran has indicated a belief that a claim for increased rating for a bilateral foot disorder is on appeal. The Board disagrees. The Veteran did appeal such a claim to the Board in a July 2000 substantive appeal, arguing that a 30 percent rating was warranted, rather than the 10 percent rating assigned in the appealed April 2000 rating decision. However, in a subsequent March 2003 rating decision, the RO granted the full benefits sought on appeal by assigning a 50 percent rating effective the date of claim in December 1999 (thereby surpassing the 30 percent rating the Veteran requested). As such, an increased rating claim for the service-connected bilateral foot disorder is not on appeal. The Board notes that this particular claim has been addressed in subsequent rating decisions dated in April 2004, December 2005, and March 2007. However, the Veteran did not file a timely appeal against either of these decisions. FINDINGS OF FACT 1. In an unappealed October 1994 rating decision, the RO denied the Veteran's claim of service connection for a fatigue disorder. 2. New evidence that tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for a chronic fatigue disorder has not been received since the October 1994 rating decision. 3. The evidence of record does not indicate that the Veteran has experienced during the appeal period, as the result of his service-connected hiatal hernia, anemia due to hematemesis or melena, or severe impairment of health due to the hiatal hernia. CONCLUSIONS OF LAW 1. An October 1994 rating decision by the RO that denied the Veteran's claim to service connection for a chronic fatigue disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012). 2. New and material evidence has not been received to reopen the claim of service connection for a chronic fatigue disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for a rating in excess of 30 percent, for the Veteran's service-connected hiatal hernia, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to these claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 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). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). If a claimant seeks to reopen a claim that was previously denied, VA must notify the claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information necessary to establish the underlying claim for the benefit sought. The notification letter must describe what evidence would be sufficient to substantiate the element or elements required to establish service connection that were found insufficient in the prior denial. Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). However, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In this matter, the RO provided the Veteran with several notification letters during the appeal period which addressed claims to reopen service connection and claims for increased rating. Regarding the claim to reopen service connection, the RO provided the Veteran with a May 2005 letter which notified the Veteran that his claim for CFS had been previously denied, and that to reopen that claim, new and material evidence had to be submitted. Regarding the Veteran's claim for increased rating for hiatal hernia, the RO provided notification to the Veteran in several letters dated between July 2004 and June 2011. These letters notified the Veteran regarding what information and evidence is needed to substantiate a claim for increased rating, how disability ratings and effective dates are determined, and what information and evidence must be submitted by the Veteran and what evidence VA would obtain. Though full notification was not provided prior to the rating decisions on appeal, the claim to reopen service connection and the claim for increased rating have been readjudicated in the Veteran's Statement of the Case (SOC), and in subsequent SSOCs. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification, followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file, as are voluminous private and VA medical records pertaining to his disorders. The Veteran has been provided with VA compensation examinations into his claims during the appeal period. The Board recognizes that the Veteran declined VA examination scheduled for November 2012. Nevertheless, he did appear and cooperate during the appeal period for other scheduled VA examinations in September 2004 and October 2006, for which reports are of record. Further, in deciding the Veteran's claims, the Board will rely on the extensive VA treatment records in the claims file dated until as recent as September 2012. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the claim for increased rating for hiatal hernia, and the claim to reopen service connection for CFS. II. The Claim for an Increased Rating The Veteran seeks a higher disability rating for his service-connected gastroesophageal disorder - hiatal hernia. He has been service connected for this disorder since March 1994. Since April 12, 2002, the disorder has been rated as 30 percent disabling. On June 30, 2004, VA received the Veteran's claim for increased rating for hiatal hernia. In the December 2004 rating decision on appeal, the RO denied his claim. In this decision, the Board will consider whether a higher rating has been warranted from June 30, 2003 (one year prior to the date of the Veteran's claim for increased rating) at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings); see also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. The RO has rated the service-connected hiatal hernia under Diagnostic Code (DC) 7346. Under DC 7346, ratings of 10, 30, and 60 percent are authorized. As noted, the Veteran has been rated as 30 percent disabled for the entire rating period. As such, the issue before the Board is whether, at any time since June 30, 2003, a 60 percent rating has been authorized. Such a rating should be assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. Terms such as "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. After a review of all the evidence, the Board finds that a 60 percent rating is unwarranted at any time during the appeal period. The evidence shows that the Veteran has experienced pain, nausea, and vomiting related to his hernia, but does not show that hematemesis or melena has caused anemia, does not show that documented weight loss during the appeal period is the result of the hiatal hernia, and does not show that the Veteran has experienced a combination of symptoms related to the hernia that has caused him severe impairment of health. 38 C.F.R. §§ 4.113, 4.114. The relevant evidence relied on in the Board's assessment is found in private and VA treatment records dated between June 2003 and September 2012, in lay statements from the Veteran and his spouse, and in VA examination reports dated in July 2003, September 2004, and October 2006. The July 2003 examiner noted the Veteran's complaints of nausea, stomach pain and discomfort, diarrhea and constipation, reflux, arm and shoulder pain, bowel spasms, and "passing of black-tarry stools." The Veteran described a history of constant symptoms. On examination, the examiner noted the Veteran in no acute distress, described him as well developed and well nourished at 247 pounds and 68.5 inches, and found no abdominal tenderness or organomegaly. The examiner diagnosed the Veteran with hiatal hernia without significant anemia or malnutrition. The report did not note melena or hematemesis, despite the Veteran's complaints of "black tarry stools." In October 2003, the Veteran submitted into evidence testing conducted at a military hospital prior to the appeal period. The test reports indicate that the Veteran experienced in December 2001 melena as the result of hemorrhoids. Reports of laboratory results associated with that treatment, dated in February and June 2003, does not indicate a diagnosis of anemia. Moreover, a February 2003 EGD report, which noted the Veteran's complaints of dyspepsia, indicated normal results for the hypopharynx, esophagus, gastroesophageal junction, stomach, pylorus, and duodenum. A July 2004 EGD report from the same military hospital contained similar normal results, moreover. The September 2004 VA examiner noted the Veteran's complaints, including mild dysphagia, once-weekly pyrosis and epigastric distress and reflux. The examiner noted the hiatal hernia as symptomatic but also noted the Veteran's state of health as "relatively good" and found the Veteran without melena or hematemesis. The examiner noted that the Veteran's weight at 209 pounds, which indicates about a 40 pound weight loss since the July 2003 examination. The Veteran attributed his weight loss to "vomiting and being on a bland diet." VA treatment records dated in November 2005 indicate significant weight loss during the appeal period with the Veteran weighing 251 pounds in May 2002, and weighing 198 pounds in September 2005. An August 2004 statement from the Veteran's spouse describes nausea, vomiting, and stomach pain after eating. An October 2006 VA examination of the abdomen (in response to a claim for service connection for hepatitis) found no evidence of pain or organomegaly, no evidence of malnutrition, and no muscle wasting. In the October 2006 VA examination report specifically addressing the hiatal hernia, the examiner noted the Veteran's complaints of dysphagia, pain, reflux, nausea, and vomiting. The Veteran also stated that he was on a liquid diet and eating "mushy type foods" for easier swallowing. The Veteran indicated to the examiner that he missed one day per month from work due to his symptoms. The examiner stated that the general state of the Veteran's health was "not good because of the severity of his back pain and other discomfort." The examiner also noted the Veteran's significant loss of weight of, reportedly, 70 pounds. But the Veteran indicated no hematemesis or melena. Moreover, VA treatment records dated in September 2012 indicate a weight of 276 pounds, and note the Veteran's reported belief that his previous loss in weight was due to anti-depressant medication which made him more energetic and active. VA treatment records dated until December 2012 continue to note the Veteran's complaints of pain, reflux, nausea, vomiting, and dysphagia. Moreover, beginning in a "problem list" dated in March 2010, it is noted that the Veteran was diagnosed with "anemia, unspecified" in November 2008. However, the treatment records dated until September 2012 continue to be negative for melena and hematemesis. In sum, the evidence of record indicates that the Veteran has experienced symptoms related to his hiatal hernia such as pain, reflux, vomiting, and nausea. However, no evidence, dated over the course of the nearly 10-year appeal period, approximates the criteria for a 60 percent evaluation under DC 7346 - i.e., though evidence has established that the Veteran experiences pain and vomiting, and has experienced weight loss during a portion of the appeal period, no medical evidence establishes the objective criteria noted under DC 7346, that the Veteran has anemia as the result of hematemesis or melena, or that this disorder alone had caused "severe impairment of health." 38 C.F.R. § 4.114. Rather, the volumes of medical and lay evidence in the claims file attesting to the Veteran's physical and psychiatric difficulties indicate that his severe health impairment is the result not of gastroesophageal difficulties, but of many nonservice-connected and service-connected disorders. For example, during the appeal period, the Veteran has been rated as 100 percent disabled for posttraumatic stress disorder (PTSD), 50 percent disabled for foot problems, 50 percent disabled for headaches, 30 percent disabled for sinusitis, and compensably disabled for lower spine and knee disorders. The record clearly establishes that symptoms associated with his hiatal hernia do not cause his "severe" impairment of health. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's hiatal hernia are appropriately contemplated by the rating schedule, particularly the criteria for a 30 percent evaluation under DC 7346, which compensates the types of pain and reflux of which the Veteran has complained. His symptoms are directly contemplated by the schedular criteria. Therefore, referral for consideration of an extraschedular evaluation is not warranted here. Thun. III. The Claim to Reopen the Claim for Service Connection The Veteran claims that he incurred a chronic fatigue disorder during service. In particular, he maintains that he has CFS as the result of an undiagnosed illness incurred pursuant to his service in Southwest Asia during the Persian Gulf War. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome). See 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2012). The Veteran was discharged from active duty in February 1994. Soon thereafter, in March 1994, he claimed service connection for a chronic fatigue disorder. The RO denied the claim in an unappealed October 1994 rating decision. The Veteran filed a timely notice of disagreement (NOD) against the decision in response to which the RO issued an August 1995 SOC. The Veteran did not file a timely substantive appeal of the October 1994 decision, however. As such, that decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. Where a service connection claim has been finally decided, VA, before addressing that claim anew, must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). If new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. 38 U.S.C.A. § 5108. The requirement of submitting new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal regardless of the RO's determination. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). VA regulations define "new" evidence as existing evidence not previously submitted to agency decision makers. "Material" evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or redundant and must raise a reasonable possibility of substantiating the claim. Id. If new and material evidence is received prior to the expiration of the appeal period following a particular rating decision, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In April 2002, the Veteran filed a claim to reopen service connection for chronic fatigue. In April 2004, the RO denied the Veteran's claim, finding that the claim would not be reopened because the record lacked new and material evidence. The Veteran did not appeal the decision to the Board. However, the decision is not final. That is because, in June 2004, within one year of the April 2004 rating decision, the Veteran submitted into the record relevant and material information which the RO did not address until December 2005 - in a rating decision the Veteran did appeal to the Board. As such, the April 2002 claim to reopen has remained pending in appellate status. See 38 C.F.R. § 3.156(b) (2012) (new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period). Hence, the only final rating decision of record is the October 1994 rating decision which denied the Veteran's original claim to service connection. 38 C.F.R. § 20.200. In October 1994, the relevant evidence of record considered by the RO in the final rating decision consisted of the Veteran's STRs, which are negative for a chronic fatigue disorder, and a May 1994 VA examination report, which noted the Veteran's complaints of in-service fatigue, and noted a diagnosis of "history of chronic fatigue, cause unknown." Based on this evidence, the RO found service connection unwarranted for a chronic fatigue disorder. 38 C.F.R. § 3.303. Again, the October 1994 decision became final. It is therefore not subject to revision upon the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. The evidence that must be considered in determining whether there is a basis for reopening the Veteran's claim is relevant evidence that has been added to the record in conjunction with the Veteran's April 2002 claim to reopen service connection. The relevant evidence that has been added to the record consists of: private, VA, and military hospital treatment records dated since March 1995 (and received by the RO in April 1996) which document the Veteran's complaints of fatigue and insomnia, and which document the diagnosis and treatment of the disorder of sleep apnea; multiple lay statements from the Veteran in which he asserts a connection between his fatigue and undiagnosed illness related to service in Southwest Asia during Operation Desert Storm; a November 2001 VA compensation examination report which notes a diagnosis of sleep apnea; a September 2002 examination report from QTC Services, Inc., which notes a diagnosis of sleep apnea and hyposomnia; a September 2002 private psychological report which notes the Veteran's "anergia;" a January 2004 statement from the Veteran's spouse who described the Veteran's lack of energy since service; a June 2004 statement from the Veteran's private treating physician noting the Veteran's chronic fatigue; an October 2006 VA examination report, and March 2007 addendum report, which found the Veteran without CFS, but which reiterated the diagnosis of sleep apnea, and which attributed "fatigue symptoms" to sleep apnea that may relate to "multiple medical problems" to include service-connected disorders. This evidence is certainly new evidence in the claims file. It has been included in the claims file since the October 1994 final rating decision. None of the new evidence is material evidence, however. The crux of the Veteran's claim is that he has CFS due to undiagnosed illness resulting from service in Southwest Asia. As was the case in October 1994, the current record contains no medical evidence showing he has CFS, and no medical evidence he has an undiagnosed illness which causes the CFS - despite the inclusion in the record of volumes of additional evidence. Rather, the current record indicates that a diagnosed illness - obstructive sleep apnea - causes his fatigue. This is clearly indicated in the October 2006 VA report and its March 2007 addendum report. Thus, the new evidence does not tend to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for CFS. The new evidence does not raise a reasonable possibility of substantiating the Veteran's claim. As with the evidence of record in October 1994, the new evidence merely shows that the Veteran experiences fatigue without any indication that it is due to an undiagnosed illness incurred in Southwest Asia. Accordingly, the claim to reopen service connection for CFS is denied. (Continued on the next page) ORDER Entitlement to an increased rating for a service-connected hiatal hernia is denied. The Board having determined that new and material evidence has not been presented, reopening of the claim for entitlement to service connection for a chronic fatigue disorder is denied. REMAND The Board finds remand warranted for additional medical inquiry into the Veteran's claim for increased ratings for scars. He has been service connected for multiple scars throughout his body. He is not service connected for scars on his head face or neck. Under the applicable rating criteria, the Board must determine the size of each service-connected scar, whether the scar is deep or superficial, whether any scar causes limitation of motion or function, and whether any scar is unstable or painful on examination. 38 C.F.R. § 4.118, Diagnostic Codes 7801-05 (2005). The report of the most recent VA compensation examination - in September 2005 - does not contain sufficient information to accurately assess the Veteran's claim during the appeal period, particularly in light of the lay evidence of record indicating worsening scar tissue. Green v. Derwinski, 1 Vet. App. 121 (1991). The Board notes that VA provided the Veteran with a VA examination in November 2012, and that the Veteran refused to undergo evaluation. 38 C.F.R. § 3.655. Nevertheless, based on the Veteran's cooperation during most of the appeal period, and the lack of clarity regarding his current condition, a new examination should be scheduled. The Board further notes that, in April 2013, the Veteran's representative indicated that the Veteran would report for a new examination. A remand is also warranted for issuance of a SOC regarding the Veteran's claims for earlier effective dates for service connection for a lower back disorder and a bilateral knee disorder, and for an earlier effective date for the assignment of a 30 percent rating for the service-connected hiatal hernia. The Veteran filed a NOD with regard to these issues in May 2007, in response to a March 2007 rating decision. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Include in the claims file any currently outstanding treatment records that pertain to the claims on appeal. 2. After including in the claims file any additional relevant evidence, schedule the Veteran for a VA compensation examination of his service-connected scars. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. In a report, the examiner should describe the current nature of the Veteran's service-connected scars. The examiner should comment on the lay statements of record indicating significant disability. The examiner should also comment on the following: a) in square inches and square centimeters, what is the size of each scar? b) are the scars superficial or deep? c) are any of the scars painful on examination? d) are any of the scars unstable? e) do any of the scars cause limitation of motion or limitation of function? 3. Review the medical report obtained above to ensure that the remand directives have been accomplished. If the questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. After all the above medical inquiry has been completed, readjudicate the claims for increased ratings for scars in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If an issue remains denied, the Veteran should be provided with a SSOC as to the issue, and afforded a reasonable period of time within which to respond thereto. 5. Issue a SOC regarding the claims for earlier effective dates (for service connection for back and knee disorders, and for a higher rating for hiatal hernia) based on the Veteran's May 2007 NOD. The Veteran must be provided with information about his rights and responsibilities in perfecting an appeal on this matter and be given an opportunity to respond. 6. Only if the Veteran responds by submitting a timely substantive appeal, return the issues regarding earlier effective dates (for service connection for back and knee disorders, and for a higher rating for hiatal hernia) to the Board for further review. 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 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs