Citation Nr: 1338224 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-20 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for impetigo, and, if so, whether service connection is warranted. 2. Entitlement to service connection for a skin disorder of the feet, including athlete's feet and tinea pedis. 3. Entitlement to service connection for hepatitis C. 4. Entitlement to service connection for an acquired psychiatric disorder (other than posttraumatic stress disorder (PTSD)), including schizophrenia, to include as secondary to hepatitis C. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from January 1973 to October 1974. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an August 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a July 2008 decision, the Board denied service connection for PTSD. In October 2008, the Board denied the Veteran's Motion for Reconsideration of the July 2008 decision. Accordingly, the July 2008 Board decision is final. 38 U.S.C.A. § 7104 (West 2002). The Board notes that in Boggs v. Peake, 520 F.3d 1330, 1334 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Essentially, claims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims. As the current claim for a psychiatric disorder is based on a completely different diagnosis, it will be considered a separate and distinct claim. Moreover, the U. S. Court of Appeals for Veterans Claims (Court) has found that the use of 'condition(s)' in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, in contrast, in the instant case, during the course of the current appeal, the Veteran has only asserted that he is seeking service connection for paranoid schizophrenia. While treatment records show a current diagnosis of schizophrenia, they do not show a diagnosis of PTSD or any other psychiatric disorder. Accordingly, for purposes of clarity, the current appeal has been described as entitlement to service connection for an acquired psychiatric disorder other than PTSD, including schizophrenia. In September 2012, the Board received an August 2012 Skin Disability Benefits Questionnaire (DBQ) that had been completed by a correctional facility physician. In a November 2013 statement, the Veteran's representative waived RO consideration of this record. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Veteran's Virtual VA electronic claims folder reveals that the documents are either duplicative of records already associated with the paper claims file or are not relevant to the issues on appeal. The issues of entitlement to service connection for skin disorder of the feet, hepatitis C, and an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In an October 1995 rating decision, the RO denied service connection for impetigo; the Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. 2. The additional evidence received since the October 1995 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for impetigo. 3. For the entire appeal period, the competent and credible evidence fails to show that the Veteran has a current diagnosis of impetigo. CONCLUSIONS OF LAW 1. The October 1995 rating decision denying service connection for impetigo, is final. 38 U.S.C.A. § 7105(c) (West 1991) [(West 2002)]; 38. C.F.R. §§ 3.104, 20.302, 20.1103 (1995) [(2012)]. 2. The additional evidence presented since the October 1995 rating decision is new and material, and the claim for service connection for impetigo, is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for impetigo have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). As the Board's decision to reopen the Veteran's claim of entitlement to service connection for impetigo is completely favorable, no further action is required to comply with the VCAA and implementing regulations. As relevant to the Veteran's underlying service connection for impetigo, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2008 letter, sent prior to the initial unfavorable decision issued in August 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service treatment records. The AOJ has requested all records identified by the Veteran and has either received such records or negative responses. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Board recognizes that the Veteran has reported receiving treatment at the Bay Pines, Florida, VA Medical Center (VAMC) from 1976 to 1981 and the Board is requesting that the AOJ attempt to obtain these records in the Remand below. Nevertheless, as discussed further below, there has been no finding of a current disability of impetigo throughout the course of the current appeal from the date the Veteran filed his current claim for service connection in October 2008 as well as for many years prior. Thus, these records are not relevant to the current appeal as they cannot show a current disability during the applicable time period. As such, given that these records are not pertinent to the issue being decided here, there is no prejudice to the Veteran in the issuance of this decision. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Veteran has not been afforded a VA examination or opinion in connection with his impetigo claim. Although the claims file indicates that given the Veteran's incarceration, VA is unable to afford him a VA examination, the Board finds that an examination or opinion is not necessary in the instant case. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, as discussed further below, although there is evidence of treatment of impetigo in service, there is simply no competent or credible evidence of a current disability. Importantly, a correctional facility physician completed a DBQ for skin disease in August 2012. After examining the Veteran, the physician clearly found no evidence of impetigo. As discussed further below, there is simply no competent or credible evidence of a current disability or persistent or recurrent symptoms of a current disability. In this regard, the Board finds the Veteran's statements of a current disability to not be credible and, in turn, outweighed by the remaining medical evidence. Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. New and Material Evidence to Reopen Claim for Impetigo The Veteran is seeking to reopen his claim for service connection for impetigo. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, 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). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." The RO initially denied service connection for impetigo in an April 1995 rating decision. However, as the Veteran submitted additional evidence, the RO reconsidered the claim in an October 1995 rating decision, but again denied it because, while the Veteran was treated for impetigo in service, there was no showing of a permanent residual or chronic disability subject to service connection. The Veteran did not initiate an appeal from this decision and new and material evidence was not received within one year. Under these circumstances, the Board must find that the October 1995 rating decision became final. 38 U.S.C.A. § 7105(c) (West 1991) [(West 2002)]; 38. C.F.R. §§ 3.104, 20.302, 20.1103 (1995) [(2012)]. Prior to the October 1995 rating decision, service treatment and personnel records and post-service correctional facility treatment records were of record. Service treatment records showed that the Veteran was diagnosed with impetigo in August 1974 and he was prescribed bacitracin ointment. Post-service treatment records from the Union Correctional Institution showed that the Veteran was again prescribed bacitracin ointment in December 1994, but are otherwise silent with respect to any findings of impetigo. In a statement, the Veteran reported having a permanent abrasion or scar from the impetigo. Since the October 1995 rating decision, additional evidence has been associated with the claims file, including additional statements from the Veteran, additional correctional facility treatment records and the August 2012 DBQ. The additional treatment records and DBQ are silent with respect to any findings of impetigo. However, in his additional statements of record, the Veteran has reported that he currently has impetigo, which has continued since being treated for it in service, and for which he is currently being treated. Thus, given the Veteran's competent lay statements, which are presumed credible for the purposes of meeting the criteria for new and material evidence, see Justus, supra, the evidence submitted since the October 1995 rating decision is new and material as it is not redundant of evidence already in the record in October 1995, and relates to the unestablished fact of whether the Veteran had a current disability of impetigo that may be related to service. See 38 C.F.R. § 3.156(a). Accordingly, the issue of entitlement to service connection for impetigo is reopened. 38 U.S.C.A. § 5108. III. Service Connection for Impetigo In light of reopening the Veteran's claim for service connection for impetigo, the Board now turns to whether service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, impetigo is not one of the diseases enumerated under at 38 C.F.R. § 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, service treatment records showed an assessment of impetigo in August 1974. It was noted that the Veteran had a funicle on the right cheek and was prescribed bacitracin ointment. Remaining service treatment records are silent with respect to any complaints or findings of impetigo. A prescription dated in December 1994 again indicated that the Veteran had been prescribed bacitracin ointment. However, there is no indication on the prescription for what it had been prescribed. Post-service treatment records are silent with respect to any findings of impetigo. Importantly, the August 2012 DBQ specifically found that the Veteran did not have any skin conditions that caused scarring or disfigurement of the head, face or neck. The only skin disability diagnosed was tinea pedis, which is addressed in the Remand section below. Therefore, based on the evidence of record, the Board finds that a preponderance of the competent medical evidence is against a finding that the Veteran currently has impetigo for VA purposes. Correctional facility treatment records are silent with respect to any findings of impetigo. Significantly, the August 2012 DBQ also found no current findings of impetigo and specifically noted no skin conditions that caused scarring or disfigurement of the head, face and neck. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Nevertheless, the Court has also held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Court recently issued a decision in Romanowsky v. Shinseki, 2013 WL 3455655 (July 10, 2013), that found that the Board erred when it did not consider whether the appellant's adjustment disorder, diagnosed prior to the claim period, was extant at the time he filed his claim but had resolved by the time of the later examination. Therefore, the Board will also look to the evidence prior to the claim period. See McClain, 21 Vet. App. at 321 (noting that the "current disability" required for service connection includes a disability at the time of filing or during the pendency of a claim); but see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "simply because [the Veteran] had a disease or injury while on active service" was insufficient to obtain benefits "[i]n the absence of proof of a present disability"). The Board further observes that that lay assertions 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 subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When applying the case law discussed above, here, the Veteran is competent to describe current symptoms and to report a continuity of symptoms since service. Nevertheless, the Board finds the Veteran's current assertions of a current chronic disability to not be credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, there is simply no competent medical evidence showing that the Veteran has suffered impetigo at any point since he filed his claim or for many years prior. In fact, while he has sought treatment for other disorders, no complaints, treatment, or diagnoses of impetigo were noted. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). The Board recognizes that there is a prescription dated in December 1994 for the same medication prescribed while in service; however, nothing in this prescription indicates that it was prescribed for impetigo on the cheek. Moreover, this prescription was over approximately 14 years prior to the Veteran's current claim in 2008. As such, it cannot be considered competent evidence of a current disability at the time of filing, or close in time to filing. Moreover, the Veteran has asserted that he has received continuing treatment for this disability at the correctional facility where he has been incarcerated. However, again, a review of all the treatment records shows no complaints of or finding of any impetigo. Importantly, the August 2012 DBQ prepared by a correctional facility physician found no skin disabilities, except tinea pedis. The examiner clearly found no skin abnormalities of the head, face or neck, which was where the impetigo was located in service. The Board is cognizant that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Nevertheless, these inconsistencies weigh against the Veteran's credibility. As such, the Veteran's statements asserting that he has had impetigo are outweighed by the medical evidence of record. In sum, the Veteran has not suffered from a current disability at any point during the course of the appeal or, for that matter, for many years prior to the appeal period. In conclusion, the preponderance of the evidence is against service connection for impetigo. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been received, the claim of entitlement to service connection for impetigo is reopened Service connection for impetigo is denied. REMAND Unfortunately, although the Board regrets the additional delay, a remand is necessary with respect to the remaining issues on appeal to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Initially, the Board observes that additional evidence was associated with the claims file that has not been considered by the AOJ with respect to the remaining issues on appeal. In this regard, the AOJ issued a supplemental statement of the case in May 2012 considering this evidence, but such only pertained to the issue of impetigo and did not address the issues of service connection for skin disability of feet, hepatitis C or schizophrenia. Rather, the AOJ last adjudicated these issues in a March 2010 statement of the case. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board a supplemental statement of the case must be furnished to the Veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c). Accordingly, the remaining issues on appeal must be returned to the AOJ for review of the additional medical evidence. Moreover, service treatment records showed that the Veteran had an assessment of athlete's feet in July 1974. Another July 1974 clinical record showed a provisional diagnosis of hepatitis with urinary tract infection. Further, the Veteran's July 1974 report of medical history showed that he reported a history of foot trouble as well as depression and excessive worry. The examiner's notations showed that the Veteran had spots on bottom of his right foot and that he was worried about his mother. Post service treatment records showed that in September 1981, the Veteran was committed for psychiatric evaluation to determine competency to stand trial. A February 1982 report showed that the Veteran was diagnosed with schizophrenia, paranoid type, chronic. It was observed that the Veteran's first psychiatric treatment was in 1978 at Bay Pines VA Medical Center. Follow up evaluations continued to show treatment for schizophrenia. Post-service correctional facility treatment records beginning in 2008 also document treatment for athlete's feet on numerous occasions as well as show that the Veteran has been diagnosed with hepatitis C. Further, the August 2012 DBQ showed an assessment of tinea pedis. In statements of record, the Veteran has asserted that all of these disabilities began in service and has continued since that time. He has alleged that he was infected with hepatitis C from the vaccination gun used in service. The Veteran has also asserted that his schizophrenia is proximately due to, or aggravated, by his hepatitis C. The Veteran has not been afforded any VA examinations with etiological opinions with respect to the issues on appeal. Reports from the Gainesville, Florida VA Medical Center indicate that due to the fact that restraints must remain in place, VA examinations could not be conducted at the prison on incarcerated Veterans and that the Florida State Prison would only transport inmates when a court order by a county judge is presented. However, given the documented incidents in service, the current treatment records showing diagnoses of current disabilities and the Veteran's lay statements of pertinent symptomatology, the Board finds that there is sufficient evidence to obtain VA medical opinions instead of requiring a physical examination. 38 C.F.R. § 3.156; see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, the Veteran has reported receiving treatment for his disabilities from the Bay Pines VA Medical Center from February 1976 to February 1981. It does not appear that these records have been requested. As VA medical records are constructively of record, the AOJ should attempt to obtain these records. Further, the most recent treatment records received from the Florida Department of Corrections are dated from February 2011. The Veteran has indicated that he has received continuous treatment for these disabilities. As such, in light of the need to remand for other matters, the AOJ should request that the Veteran provide an additional authorization so that any additional treatment records dated from February 2011 to the present from the Florida Department of Corrections can be obtained. Accordingly, the case is REMANDED for the following action: 1. Request all records of VA medical care provided at the Bay Pines, Florida VAMC from the date of the Veteran's discharge in October 1974 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Appropriate action should be taken, including contacting the Veteran and obtaining any necessary authorization, to obtain any additional treatment records from the Florida Department of Corrections from February 2011 to the present. If the Veteran responds, all reasonable attempts should be made to obtain such records. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After obtaining all outstanding records, forward the claims file to appropriate VA examiners to offer etiological opinions on the issues of service connection for skin disability of the feet, hepatitis C and an acquired psychiatric disability, including schizophrenia. The claims file should be reviewed and opinions regarding the following inquiries should be offered: a) With respect to skin disorder of the feet, after reviewing the claims file, the appropriate examiner should opine whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's skin disorder of the feet, including tinea pedis and athlete's feet, is directly related to service. In proffering the opinion, the examiner should specifically address the documentation of athlete's feet in service, the current treatment records showing athlete's feet and tinea pedis, the August 2012 DBQ, and the Veteran's lay statements. b) With respect hepatitis C, the appropriate examiner should opine whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's hepatitis C is directly related to service, to include vaccinations guns used in service. In proffering the opinion, the examiner should address the hepatitis documentation in service as well as the Veteran's assertions of risk factors. c) With respect to an acquired psychiatric disorder, including schizophrenia, the appropriate examiner should opine whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's acquired psychiatric disorder is directly related to service. In proffering the opinion, the examiner should address the report of medical history in service documenting depression and excessive worry as well as the post-service records indicating psychiatric treatment beginning 1978, and the Veteran's lay statements. Further, if hepatitis C is found to be directly related to service, an appropriate psychiatric examiner should also opine as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's acquired psychiatric disorder is proximately due to, or caused by, his hepatitis C; and whether it is at least as likely as not (a 50% or higher degree of probability) that an acquired psychiatric disability, including schizophrenia, has been aggravated by the Veteran's hepatitis C. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to specifically include all evidence associated with the Veteran's record since the statement of the case issued in March 2010. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. T he purpose of this REMAND is to ensure compliance with due process considerations. 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs