Citation Nr: 1343260	
Decision Date: 12/30/13    Archive Date: 01/07/14

DOCKET NO.  99-13 625A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for 9th cranial nerve damage, claimed as a residual of frenulectomy.

2.  Entitlement to service connection for 7th cranial nerve damage, claimed as a residual of frenulectomy.

3.  Entitlement to service connection for loss of sense of smell, claimed as secondary to service-connected residuals of frenulectomy.

4.  Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder ("PTSD"), to include a psychogenic reaction, including as secondary to service-connected disabilities.

5.  Entitlement to service connection for a dental disorder, to include bone damage and loss of teeth.

6.  Entitlement to service connection for residuals of oral surgery not previously service connected.
7.  Entitlement to service connection for dizziness, to include as secondary to frenulectomy and/or as secondary to service-connected residuals of perforated tympanic membrane.

8.  Entitlement to an initial compensable disability rating for partial loss of sense of taste, claimed as a residual of frenulectomy.

9.  Entitlement to an initial compensable disability rating for damage to 12th cranial nerve, claimed as a residual of frenulectomy.

10.  Entitlement to an initial disability rating in excess of 50 percent for PTSD from April 7, 1999 to March 27, 2001, and in excess of 70 percent from March 28, 2001.

11.  Entitlement to an initial compensable disability rating for residuals of ruptured tympanic membrane.

12.  Entitlement to an initial compensable disability rating for residuals of burns to both forearms.

13.  Entitlement to a disability rating in excess of 10 percent for residuals of burns, right 4th finger (to include orthopedic hyperextension and instability).

14.  Entitlement to a disability rating in excess of 10 percent for residuals of burns, right 3rd finger (to include orthopedic hyperextension and instability).

15.  Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for permanent hemiparalysis of the diaphragm due to surgery at the Omaha VA Medical Center ("VAMC").

16.  Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for right lower extremity neuropathy as a result of VA hospitalization.

17.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a back disorder.
18.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left knee disorder.

19.  Entitlement to an initial compensable disability evaluation and effective date prior to March 3, 1998 for loss of sublingual salivary gland, to include dry mouth.

20.  Entitlement to an effective date prior to August 14, 2002 for an award of a total disability rating for compensation based on individual unemployability ("TDIU").

21.  Entitlement to earlier effective dates for grants of service connection based on clear and unmistakable error (CUE) in a June 1992 rating decision.

22.  Entitlement to earlier effective dates for grants of service connection based on CUE/non-finality in an October 1992 deferred rating decision.


ATTORNEY FOR THE BOARD

T. Y. Hawkins, Counsel


INTRODUCTION

The Veteran served on active duty from September 1965 to July 1966.

These issues stem from multiple rating decisions beginning in January 1999.  For the sake of brevity, the Board will not enumerate each individual rating decision.

Regarding the claim of entitlement to an increased initial rating for PTSD, the RO assigned increased ratings of 50 and 70 percent during the course of the appeal. Although each increase represents a separate grant of benefits, the United States Court of Appeals for Veterans Claims ("Court") has held that a decision awarding a higher rating, but less that the maximum available benefit, does not abrogate the pending appeal.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Thus, this matter remains on appeal.

The Board has previously considered these claims.  The Veteran appealed a Board decision, dated March 2006, to the Court .  This decision entailed 17 issues.  Although one issue, not currently on appeal, was denied, the remaining issues were remanded to the VA regional office ("RO"), via the Appeals Management Center (AMC) in Washington, DC, for further development.  Pursuant to the Board's instructions, the RO issued a Supplemental Statement of the Case ("SSOC"), which it erroneously referred to as a Statement of the Case ("SOC").

In January 2010, the Board, in pertinent part, remanded the issues on appeal for further development, specifically, to afford the Veteran VA examinations and obtain medical opinions concerning his appealed claims.  The Board also denied five claims: (1) entitlement to an effective date earlier than February 18, 1999 for service connection for residuals of burns to the hands, bilateral forearms and left ankle based on CUE; (2) entitlement to an effective date earlier than February 18, 1999 for service connection for burn scars to the bilateral hands, bilateral forearms and left ankle on a non-CUE basis; (3) entitlement to an effective date earlier than March 3, 1998 for service connection for residuals of a frenulectomy, to include partial loss of the sense of taste and nerve damage to the 12th cranial nerve; (4) entitlement to an effective date earlier than April 7, 1999 for service connection for PTSD; and (5) entitlement to an effective date earlier than August 14, 2002 for TDIU.  (Service connection was granted by the Board for loss of sublingual salivary gland, to include dry mouth.)  In a January 2012 SSOC, the AMC denied the claims remanded by the Board in January 2010.  The claims folder was then returned to the Board for further appellate consideration.

In December 2010, the appellant appealed the Board's January 2010 decision to the Court.  In a May 2012 single-judge Memorandum Decision, the Court set aside that part of the Board's decision that denied entitlement to an effective date prior to August 14, 2002 for a grant of TDIU and remanded the claim to the Board for further development and adjudication.  The claims folder has now been returned to the Board for further appellate consideration.
During the pendency of this appeal, the AMC implemented the Board's January 2010 grant of service connection for loss of sublingual salivary gland, to include dry mouth, and established service connection, evaluated as noncompensably disabling, effective March 3, 1998.  Following the January 2012 letter notifying the Veteran of the decision, VA received a timely February 2012 notice of disagreement from the Veteran concerning the assigned disability rating and the effective date.  The Veteran is therefore entitled to an SOC addressing his disagreement with the disability rating and effective date elements of the claim.  Manlincon v. West, 12 Vet. App. 238 (1999).  This matter is addressed in the remand portion of this decision.

The issues of entitlement to earlier effective dates based on: CUE in a June 1992 rating decision and CUE/non-finality in an October 1992 deferred rating decision have been raised by the record (see Veteran's letters dated in January 2000 and September 2012 and the Court's May 2012 Memorandum Decision), but have not been adjudicated by the Agency of Original Jurisdiction ("AOJ").  The Board does not have jurisdiction over these matters, but they are inextricably intertwined with the matter of entitlement to an earlier effective date for TDIU.  Similarly, the claims for service connection and higher ratings for the disabilities claimed as relating to CUE/non-finality are inextricably intertwined with the CUE/non-finality matters.  Accordingly, they are addressed in the remand portion of this decision.

The issues of entitlement to service connection for loss of sense of smell, claimed as secondary to service-connected residuals of frenulectomy; service connection for an acquired psychiatric disorder other than PTSD, to include a psychogenic reaction, including as secondary to service-connected disabilities; service connection for a dental disorder, to include bone damage and loss of teeth; service connection for residuals of oral surgery not previously service connected; service connection for dizziness, to include as secondary to frenulectomy and/or as secondary to service-connected residuals of perforated tympanic membrane; an initial compensable disability rating for partial loss of sense of taste, claimed as a residual of frenulectomy; a compensable initial disability rating for damage to12th cranial nerve, claimed as residuals of frenulectomy; an initial disability rating in excess of 50 per cent for PTSD from April 7, 1999, to March 27, 2001 and in excess of 70 percent from March 28, 2001; an initial disability rating for residuals of burns to both forearms; a disability rating in excess of 10 percent for residuals of burns, right 4th finger (to include orthopedic hyperextension and instability); a rating in excess of 10 percent for residuals of burns, right 3rd finger (to include orthopedic hyperextension and instability); compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for permanent hemiparalysis of the diaphragm as a result of VA medical treatment; compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for right lower extremity neuropathy as a result of VA hospitalization; entitlement to an initial compensable disability evaluation and effective date prior to March 3, 1998 for loss of sublingual salivary gland, to include dry mouth; an effective date prior to August 14, 2002 for an award of TDIU; and earlier effective dates based on CUE in a June 1992 rating decision and CUE/non-finality in an October 1992 deferred rating are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC.  The Veteran will be notified if additional action is required on his part.


FINDINGS OF FACT

1.  The Veteran is not shown by the probative evidence of record to have a current diagnosis of 9th cranial nerve damage.

2.  The Veteran is not shown by the probative evidence of record to have a current diagnosis of 7th cranial nerve damage.

3.  Throughout the course of this appeal, the Veteran's left tympanic membrane has been manifested by normal findings and the right tympanic membrane has been manifested by scarring consistent with prior perforation.

4.  An unappealed May 1992 rating decision denied the Veteran's claim of entitlement to service connection for a back disorder based on a finding that there was no probative evidence that a back disorder was caused or aggravated by service.  

5.  The evidence received since the May 1992 rating decision is either cumulative or redundant, and which, by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to decide fairly the merits of the back disorder service connection claim.  

6.  An unappealed May 1992 rating decision denied the Veteran's claim of entitlement to service connection for a left knee disorder based on a finding that there was no probative evidence that a left knee disorder was caused or aggravated by service.  

7.  The evidence received since the May 1992 rating decision is either cumulative or redundant, and which, by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to decide fairly the merits of the left knee disorder service connection claim.


CONCLUSIONS OF LAW

1.  Damage to the 9th cranial nerve was neither incurred in, nor aggravated by, active duty service and may not be presumed to have been, and is not proximately due to, the result of, or aggravated by any service-connected disability.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a), 3.310(a) (2012).

2.  Damage to the 7th cranial nerve was neither incurred in, nor aggravated by, active duty service and may not be presumed to have been, and is not proximately due to, or the result of, or aggravated by any service-connected disability.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a), 3.310(a) (2012).

3.  Throughout the period on appeal, the criteria for an initial compensable disability rating for residuals of ruptured tympanic membrane have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.87, Diagnostic Code 6211 (2012).

4.  The May 1992 rating decision that denied service connection for a back disorder is final.  38 U.S.C.A. § 7104(b) (West 2000); 38 C.F.R. § 20.1100 (2001).  

5.  New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a back disorder has not been received.  
38 U.S.C.A. § 5108 (West 2000); 38 C.F.R. § 3.156(a) (2001).

6.  The May 1992 rating decision that denied service connection for a left knee disorder is final.  38 U.S.C.A. § 7104(b) (West 2000); 38 C.F.R. § 20.1100 (2001).

7.  New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a left knee disorder has not been received.  38 U.S.C.A. § 5108 (West 2000); 38 C.F.R. § 3.156(a) (2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 

      A.) Duty to Notify

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the Court held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim.  Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded.

Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant.  The duty to notify requires, in the context of a claim to reopen, that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.  

In this case, because the VCAA was not in effect when the Veteran filed his initial claims of entitlement to service connection, post-adjudication letters in March 2003, October 2003, September 2004, August 2005, November 2007 and January 2010 provided him with information concerning how to substantiate a claim of entitlement to service connection, what he should do and what VA would do to assist him in obtaining evidence, including the specific types of evidence, both lay and medical, that could be submitted in support of a service connection claim.  With regard to his claims to reopen previous claims, he was also informed of the types of evidence needed in order to substantiate the underlying service connection claims, the division of responsibility between himself and VA for obtaining the required evidence, and advised to provide any information or evidence in his possession that pertained to such claims.  38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b).  The November 2007 and January 2010 letters also satisfied the requirements of Dingess/Hartman by advising the Veteran how VA assigns the disability rating and effective date elements of a claim.  Moreover, following receipt of the Veteran's notices of disagreement with the assigned initial ratings, the Veteran was provided with SOCs, which provided him with the specific rating criteria for each of his service-connected disabilities.  As such, the Board finds that the notification requirements of the VCAA have been satisfied.  
      
      B.) Duty to Assist

The Board concludes that the duty to assist has been satisfied.  The claims file contains the Veteran's service and post-service treatment records, as well as pertinent VA examination reports.  Additionally, the claims file contains the Veteran's statements in support of his claims.  The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record.

As noted above, in January 2010, the Board remanded the Veteran's claims in order to afford him VA examinations to assess the current severity of service-connected disabilities and to obtain opinions concerning various claimed disorders that are not yet service connected.  The examination reports demonstrate that the VA examiners reviewed the Veteran's pertinent reports of record, performed comprehensive examinations, elicited from the Veteran his history of related symptomatology, and provided clinical findings detailing the examination results.  For these reasons, the Board concludes that the examination reports are adequate upon which to base a decision in this case on the issues decided herein.

The Board recognizes that the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).  However, VA's duty to provide a medical examination or opinion is not triggered unless the record contains competent evidence or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service, or a disease manifested during an applicable presumptive period; and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability.  38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In this case, for the Veteran's claims to reopen his previously denied claims of entitlement to service connection for back and left knee disorders based on the receipt of new and material evidence, the Board has determined that examinations or medical opinions are not warranted.  There is a duty to provide medical examinations or obtain medical opinions in claims to reopen finally adjudicated claims only if new and material evidence is presented or secured.  38 C.F.R. §3.159(c)(4)(iii).  In the present case, the Board has determined herein that new and material evidence has not been presented or secured.
 
In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claims decided herein has been consistent with the provisions of the VCAA. The appellant has been provided every opportunity to submit evidence and argument in support of his claims and to respond to the VCAA notice.  The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims.  Accordingly, the Board will proceed to a decision on the merits.

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted).  However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed."  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).

In order to establish a right to compensation for a present disability, a veteran must show:  "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition identified in 38 C.F.R. § 3.309(a) when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition.  Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011).  For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). 

Additionally, service connection for certain chronic diseases, such as organic diseases of the nervous system, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307(a)(3),   3.309(a) (2012).

A.)  Entitlement to service connection for 7th and 9th cranial nerve damage, claimed as a residual of frenulectomy.

By way of background, the Board observes that in 1965, during service, the Veteran underwent a frenulectomy for speech problems.  As a result of that surgery, he developed an inclusion cyst, which was surgically removed in 1966.  He claims that, since that time, he has experienced motor or sensory disturbance of the tongue.

As an initial matter, the Veteran's service treatment records are negative for any findings of damage to either the 7th (facial) or 9th (glossopharyngeal) cranial nerves.  During a November 1998 VA neurology examination, pin prick was perceived as painful on both sides of the face and the face was symmetrical at rest and upon movement, both voluntary and emotional.  In addition, the Veteran was noted to have slight damage to the 12th (hypoglossal) cranial nerve.  There was a slight decrease in articulation, but none in fluency or latency of speech.  There was a very minimal amount of fasciculations of the tongue.  

The Board notes, however, that during a November 1998 VA mouth, lips and tongue examination, the examiner found the Veteran's cranial nerves 2 through 12 to be intact without evidence of deficit.

In August 1999, the physician who had performed the November 1998 examination wrote an addendum to his earlier report, in which he noted that the Veteran's loss of sensitivity on the left side of his face, including the angle of the jaw, and the loss of sensitivity to pin prick in the maxillary and mandibular regions on the left side of the face, were typically psychogenic and did not have a neuro-anatomical basis.  He therefore opined that the Veteran's loss of sensitivity on the left side of the face was not related to his frenulectomy.  With regard to the 9th cranial nerve, the examiner found no relative loss of ordinary sensation in the mucous membrane of the pharynx, fauces or tonsils. 

The Veteran did not undergo another examination for his claimed 7th and 9th cranial nerve damage until February 2010, when he was afforded a VA neurocranial examination; at that time, the examiner also evaluated the severity of his service-connected 12th cranial nerve damage.  During the evaluation, facial sensation was intact to light touch bilateral in V1, V2 and V3 distribution.  Facial expression was symmetric.  The Veteran reported no taste sensation over the entire tongue and posterior pharynx, and no light touch sensation over the entire tongue.  The palate elevated symmetrically and sternocleidomastoid and trapezius muscles were intact bilaterally.  The examiner observed that the Veteran's tongue initially deviated to the left, but noted that this was inconsistent during the examination.  Moreover, she found that the Veteran appeared to have some limitations of tongue mobility, but added that this could be volitional.  There was no apparent tongue atrophy.  The examiner ruled out the possibility of 7th cranial nerve deficits with loss of taste sensation, as this diagnosis could not be established.  However, she noted that there appeared to be an element of embellishment by the Veteran, as she opined that it would be anatomically difficult to perceive how this distribution of cranial nerve deficits would result from frenulectomy surgery.  Accordingly, due to unclear neuroanatomic and physiologic correlate, she concluded that 7th and 9th cranial nerve deficit could not be established.  With regard to the 12th cranial nerve deficit, the examiner again concluded that the examination findings were inconsistent.  She opined that, due to the volitional component to assessing the 12th cranial nerve, a 12th cranial nerve deficit could not be established.

Based on a review of the pertinent evidence of record, the Board concludes that the probative evidence of record is against granting the Veteran's claims of entitlement to service connection for 7th and 9th cranial damage, to include as residuals of service-connected frenulectomy.  In this respect, the Board notes that whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).

In this case, during the February 2010 examination, the VA examiner provided clear reasons and bases for her conclusion that, due to her belief that the Veteran's limitations of tongue mobility were volitional, as well as her explanation that there appeared to be an element of embellishment on the part of the Veteran, as she noted that it would be anatomically difficult to perceive how the distribution of 7th and 9th cranial nerve deficits would result from frenulectomy surgery.  The Board further notes that, although the examiner who performed the VA mouth, lips and tongue examination found the Veteran's 2nd through 12th cranial nerves to be without deficit, review of the examination report reveals that he did not perform a thorough neurological evaluation, as was performed by the 1998 and 2010 examiners.  

Accordingly, for the aforementioned reasons, the Board concludes that service connection for 7th and 9th cranial nerve damage, claimed as residuals of frenulectomy, is not warranted.

B.)  Entitlement to an initial compensable disability rating for residuals of ruptured tympanic membrane.

The Veteran's service-connected residuals of ruptured tympanic membrane have been rated under 38 C.F.R. § 4.87, DC 6211, perforation of tympanic membrane.  Under this diagnostic code, the only schedular rating available is a zero percent or noncompensable rating; a compensable evaluation is not available. 

In February 2001, the Veteran was afforded a VA ear diseases examination, at which time, he reported a constant feeling of fullness in the right ear with tinnitus.  He also reported experiencing occasional vertigo with nausea.  Tympanometry results indicated normal middle ear pressure and high compliance bilaterally.  Contralateral acoustic reflexes were present from 500-4000 hertz with stimulus in the left ear, and from 2000-4000 hertz with stimulus in the right ear.  The examiner noted that the reliability of the test results were considered fair to poor due to the Veteran's inconsistent responses.  The examiner recommended that the Veteran see an ear, nose and throat ("ENT") specialist regarding the complaints of pain and fullness in the right ear.

In December 2003, the Veteran underwent a second VA ear diseases examination, at which time, he was seen by an ENT physician.  Upon examination, the clinician noted that the right tympanic membrane had a small amount of myringosclerosis, but no pathologic abnormalities. The eardrum was freely mobile to pneumatic otoscopy.  There was no dizziness or vertigo elicited with pneumatic otoscopy.  The left tympanic membrane was clear to examination and the eardrum also appeared fairly well.  

In February 2010, the Veteran was afforded a third VA ear diseases examination, at which time, the examiner noted normal pressure with a hypercompliant tympanic membrane in the right ear and normal compliance in the left ear.  The external auditory canals were clear bilaterally.  The tympanic membrane of the left ear was found to be normal, without perforation or other abnormality.  The right tympanic membrane also showed no evidence of perforation.  The only abnormality was scarring consistent with prior perforation.  There was no evidence of complication of an ear disease or secondary condition, no evidence of a middle or inner ear infection, and no vertigo/nystagmus with positional maneuvers.  

Based on a review of the evidence of record, the Board concludes that an initial compensable disability rating for residuals of ruptured tympanic membrane under DC 6211 is not warranted.  As discussed above, the highest schedular rating available under this diagnostic code is the current noncompensable evaluation.  

The Board has also considered whether other diagnostic codes are applicable to the disorder.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case.").  However, in the absence of otosclerosis, peripheral vestibular disorders, Meniere's syndrome, loss of auricle, malignant neoplasm of the ear, benign neoplasms of the ear, or chronic otitis externa, a compensable rating is not warranted under DCs 6202 through 6210.  In addition, the Veteran is already service connected for tinnitus.  At no point during the period on appeal has the symptomatology of the Veteran's service-connected residuals of ruptured tympanic membrane more nearly approximated the level of disability contemplated in a compensable disability rating under any of the aforementioned diagnostic codes.  

The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath, supra.  Again, however, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule.  Thun, supra.  In this case, there has been no evidence presented for the period on appeal to show that the Veteran's residuals of ruptured tympanic membrane were so unusual or exceptional in nature as to render the assigned schedular rating inadequate.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  Accordingly, as the Board finds that any functional impairment due to the Veteran's  disability is considered in the current schedular rating criteria and referral for assignment of an extra-schedular evaluation in this case is not in order.

As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) is not applicable.  See Gilbert v. Derwinski, supra; Ortiz v. Principi, supra.  Staged ratings are not for application.  See Hart v. Mansfield, supra.

C.  Whether new and material evidence has been received sufficient to reopen claim of entitlement to service connection for a back disorder.

By an unappealed rating decision dated May 1992, the RO denied the Veteran's  service connection claim based on a finding that there was no probative evidence that a back disorder was caused or aggravated by service.  The evidence shows that, following the issuance of the May 1992 rating decision, the Veteran was notified of the decision, including his right to appeal, by means of a June 1992 notice letter.  However, a timely notice of disagreement was not received within one year of the notice.  Therefore, that decision became final.  See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1992).  As such, the decision is not subject to revision except on the receipt of new and material evidence.  38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012).

Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim that has been disallowed.  38 U.S.C.A. § 5108; 38 C.F.R. 
§ 3.156(a).

For claims submitted prior to August 29, 2001, as is the case here, the definition of new and material evidence is as follows:  New and material evidence means evidence not previously submitted to agency decision-makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative, nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156(a) (2001).

According to the Court, the pertinent VA law requires that, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  See Evans v. Browns, 9 Vet. App. 273 (1996).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510 (1992).

The evidence of record at the time of the last prior denial included the Veteran's service treatment records, which were negative for a back disorder at any time during service.  Post-service treatment records, including VAMC outpatient treatment reports, also failed to document arthritis of the back within one year of separation from service.  

The evidence of record since the May 1992 rating decision consists of VAMC outpatient treatment records and the Veteran's continuing assertions and deck logs/evidence of combat in support of his claim.  While these records are new, in that they were not of record at the time of the last final denial, they are not material because they fail to demonstrate that he sustained a back disorder during service or arthritis of the back within one year of service discharge, and they similarly fail to provide a medical nexus between the Veteran's back disorder and active service.  

Similarly, the Board concludes that the Veteran's statements and deck logs/evidence of combat do not constitute new and material evidence, as his statements are merely a restatement of his previous contentions made at the time of the May 1992 rating decision and, thus, do not raise a reasonable possibility of substantiating the claim or relate to an unestablished fact necessary to substantiate the claim.  Here, the Board recognizes that the Veteran has argued that he should be afforded the benefit of the combat presumption under 38 U.S.C.A. § 1154(b) (West 2002) (i.e., although his service treatment records are silent for complaints of a back injury, such should not be necessary and it should be assumed that he sustained a back injury in combat).  In this regard, although the Board recognizes that the Veteran has submitted deck logs from the USS Taylor and other evidence of his participation in combat, such evidence, while it may establish inservice occurrence, it does not, in and of itself, provide a medical nexus between the Veteran's back disorder and active service.  

Finally, the Board notes that the Veteran has argued that the May 1992 rating decision should not be considered as final because he was never provided with a copy of the rating decision or a notice letter informing him of the decision.

In this regard, the Court has held that "[t]here is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties in good faith and in accordance with law and governing regulations.'"  Kyhn v. Shinseki, 24 Vet. App. 228, 232 (2011) (citing Marsh v. Nicholson, 19 Vet. App. 381, 385  (2005); Sthele v. Principi, 19 Vet. App. 11, 17 (2004); Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992).   To rebut the presumption, the appellant, in addition to asserting nonreceipt, bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.  See Ashley, 2 Vet. App. at 309.  Absent the production of such clear evidence, delivery is proven.   If, on the other hand, clear evidence is presented to rebut the presumption of regularity, the burden then shifts to the Secretary to establish proper mailing of notice in accordance with the applicable case law.  See Baxter v. Principi, 17 Vet. App. 407, 410 (2004).  In this case, the Veteran has presented no clear evidence to rebut the presumption; the May 1992 notice letter was mailed to the Veteran's last known mailing address.  As such, the presumption of regularity applies and the May 1992 rating decision is final.

Accordingly, the Board finds that, while the additional clinical evidence received since the May 1992 rating decision is new, because it does not bear directly and substantially upon the specific matter under consideration and is not so significant that it must be considered in order to fairly decide the merits of the claim and it does not constitute material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a back disorder.

D.  Whether new and material evidence has been received sufficient to reopen claim of entitlement to service connection for a left knee disorder.

By an unappealed rating decision dated May 1992, the RO denied the Veteran's  service connection claim based on a finding that there was no probative evidence that a left knee disorder was caused or aggravated by service.  The evidence shows that, following the issuance of the May 1992 rating decision, the Veteran was notified of the decision, including his right to appeal, by means of a June 1992 notice letter.  However, a timely notice of disagreement was not received within one year of the rating decision.  Therefore, that decision became final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103.  As such, the decision is not subject to revision except on the receipt of new and material evidence.  38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012).

The evidence of record at the time of the last prior denial included the Veteran's service treatment records, which were negative for a left knee disorder at any time during service.  Post-service treatment records, including VAMC outpatient treatment reports, also failed to document left knee arthritis within one year of separation from service.  

The evidence of record since the May 1992 rating decision consists of VAMC outpatient treatment records and the Veteran's continuing assertions and deck logs/evidence of combat in support of his claim.  While the VA treatment records are new, in that they were not of record at the time of the last final denial, they are not material because they fail to demonstrate that he sustained a left knee disorder during service or arthritis of the knee within one year of service discharge, and they similarly fail to provide a medical nexus between the Veteran's knee disorder and active service.  

Similarly, the Board concludes that the Veteran's statements and deck logs/evidence of combat do not constitute new and material evidence, as his statements are merely a restatement of his previous contentions made at the time of the May 1992 rating decision and, thus, does not bear directly and substantially upon the specific matter under consideration.  Further, while deck logs/other evidence of combat  may be sufficient to establish inservice occurrence, they are not sufficient to establish a nexus between inservice disease or injury and current disability.

Finally, as discussed above, the Board notes that the Veteran has claimed that the May 1992 rating decision is not final, as he was not provided with a copy of the rating decision or a letter notifying him of the decision.  However, as previously discussed, because the Veteran has presented no clear evidence to rebut the presumption of regularity, the presumption applies and the May 1992 rating decision is final.

Accordingly, the Board finds that, while the additional clinical evidence received since the May 1992 rating decision is new, because it does not bear directly and substantially upon the specific matter under consideration and is not so significant that it must be considered in order to fairly decide the merits of the claim, it does not constitute material evidence sufficient to reopen his claim of entitlement to service connection for a left knee disorder.


ORDER

Entitlement to service connection for 9th cranial nerve damage, claimed as a residual of frenulectomy, is denied.

Entitlement to service connection for 7th cranial nerve damage, claimed as a residual of frenulectomy, is denied.

Entitlement to an initial compensable disability rating for residuals of ruptured tympanic membrane is denied.
Entitlement to an initial 10 percent disability rating for residuals of burns to the left forearm is granted, subject to controlling regulations applicable to the payment of monetary benefits.

New and material evidence not having been received, the claim of entitlement to service connection for a back disorder is denied.

New and material evidence not having been received, the claim of entitlement to service connection for a left knee disorder is denied.


REMAND

Entitlement to service connection for loss of sense of smell, claimed as secondary to service-connected residuals of frenulectomy.

During the February 2010 VA examination to ascertain the residuals of the Veteran's frenulectomy, although, as discussed above, the examiner tested his sense of taste, she did not test the Veteran's sense of smell.  

In this regard, the Court has held that, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must be adequate, or, at a minimum, VA must notify the claimant as to why one will not or cannot be provided.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (when the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board may supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises that clearly support its ultimate conclusions); 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (2012) (VA has an affirmative duty to obtain an examination of the claimant if the evidence of record does not contain adequate evidence to decide a claim).  

In this case, because the Board does not have the required information to make an informed decision in this case, it concludes that a remand is warranted so that the Veteran may undergo another examination to test his sense of smell.

Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include a psychogenic reaction, including as secondary to service-connected disabilities.

The Veteran has been service connected for PTSD.  While there is also evidence of record showing that the Veteran has been diagnosed with other psychiatric conditions, including generalized anxiety disorder and major depressive disorder, the Veteran contends he is entitled to service connection for another acquired psychiatric disorder, including psychogenic reaction.  

In February 2010, the Veteran was afforded a VA PTSD examination to assess the current severity of his service-connected PTSD.  As will be discussed in greater detail below, the VA examiner found that the Veteran's Axis I (clinical) diagnoses were PTSD (by history) and depressive disorder NOS, as well as polysubstance dependence in sustained full remission (according to the Veteran's self report).  On Axis II (personality disorders), she diagnosed personality disorder NOS.  The examiner concluded that the Veteran's Axis I disorders were secondary to his characterological disorder.  However, she also opined that the Veteran's military service and service-related experiences had contributed to, but not caused, his psychiatric disorders.

As noted above, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must be adequate or, at a minimum, VA must notify the claimant as to why one will not or cannot be provided.  See Barr, supra; see also Colvin, supra.

Because the VA examiner's opinion that the Veteran's military service contributed to his psychiatric disorders appears to be contradictory to her previous statement in the same report that his Axis I disorders (including depressive disorder NOS) are secondary to his characterological disorder, the Board concludes that a remand is necessary to obtain clarification from the examiner as to whether the Veteran's acquired psychiatric disorder(s) (other than PTSD) are of service onset or otherwise related thereto or to service-connected disability.

Entitlement to service connection for a dental disorder, to include bone damage and loss of teeth.

The Board notes that although the Veteran was afforded a dental examination in August 1999, because it was deemed an inadequate examination, another examination was scheduled for March 2004.  However, the Veteran subsequently cancelled the examination.  In this case, because the Veteran previously cooperated with VA and appeared for his first VA dental examination and has appeared for other, unrelated examinations since then, the Board believes that he should be provided with an additional opportunity to appear for an examination for his appealed claim.  

Nevertheless, the Board cautions the Veteran concerning his own responsibility to cooperate with VA in this matter.  The Court has held that "[t]he duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Under VA regulations, it is incumbent upon a veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits.  See Dusek v. Derwinski, 2 Vet. App. 519 (1992).  He must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination.  See Olson v. Principi, 3 Vet. App. 480 (1992).  Moreover, individuals for whom examinations have been authorized and scheduled are required to report for such examinations.  38 C.F.R. § 3.326(a) (2012).  

Entitlement to service connection for residuals of oral surgery not previously service connected.

The Court has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, compliance with the terms of a remand is necessary prior to further appellate review.

As discussed above, the Board previously remanded the Veteran's claims relating to his service-connected frenulectomy to ascertain the existence and/or severity of related residuals.  Unfortunately, review of the February 2010 neurocranial examination reveals that the VA examiner specifically noted that the examination was limited only to the Veteran's 7th, 9th and 12th cranial nerves.  Accordingly, she did not evaluate the Veteran to determine whether there were other residuals of his oral surgery.  Accordingly, the Board finds a remand is necessary to afford the Veteran another examination for this purpose.

Entitlement to service connection for dizziness, to include as secondary to frenulectomy and/or as secondary to service-connected residuals of perforated tympanic membrane.

The Veteran contends that he has experienced dizzy spells ever since service as a result of his service-connected frenulectomy and/or service-connected residuals of perforated tympanic membrane.

Review of the February 2010 VA ear disease examination reveals that the examiner diagnosed the Veteran with psychogenic dizziness with at least one documented syncopal episode, which most likely was of mixed etiology with possible dehydration playing a role.   She concluded that there was no evidence of any vertigo-dizziness syndrome related to the Veteran's perforated tympanic membrane.

In this regard, the Board observes that, although the examiner opined that the Veteran did not have dizziness as a result of his service-connected perforated tympanic member, it is unclear whether her use of the term "psychogenic" in this instance meant that the Veteran suffered from dizziness as a result of PTSD or another psychiatric disorder.

Because the Board may not rely on its own unsubstantiated medical conclusions, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), it must rely on an informed medical opinion in order to adjudicate a claim.  Moreover, as noted above, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must be adequate, or, at a minimum, VA must notify the claimant as to why one will not or cannot be provided.  See Barr v. Nicholson, supra.  As such, an addendum to the VA ear disease examination is needed to obtain an opinion as to whether the Veteran has dizziness as a result of a service-connected psychiatric disorder, including his service-connected PTSD.  

Additionally, because the Board finds this claim to be inextricably intertwined with the aforementioned claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include a psychogenic reaction, including as secondary to service-connected disabilities, the Board finds that it cannot be adjudicated at this time.  See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991) (all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review).  As such, the Board cannot fairly proceed in adjudicating this claim until the aforementioned issue involving an acquired psychiatric disorder is resolved.

Entitlement to an initial compensable disability rating for partial loss of sense of taste, claimed as a residual of frenulectomy.

In February 2010, the Veteran was afforded a VA examination to ascertain the current severity of his service-connected partial loss of sense of taste.  Review of the examination report reveals that, although the examiner discussed the manifestations of the Veteran's disability, she failed to comment on the effect that the Veteran's partial loss of sense of taste has on his occupation and activities of daily living, as was requested in the Board's remand instructions.

For this reason, the Board finds that a remand is necessary to obtain an addendum to the 2010 examination.  Cf. Savage v. Shinseki, 24 Vet. App. 259, 269 (2012) ("VA has a duty to either (1) ask the private examiner to clarify the report, (2) request the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed.").  

Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for permanent hemiparalysis of the diaphragm due to surgery at the Omaha VAMC. 

As noted above, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must be adequate, or, at a minimum, VA must notify the claimant as to why one will not or cannot be provided.  See Barr, supra; see also Colvin, supra.

In this case, the Board remanded the Veteran's claim in order to obtain an addendum to the March 2006 opinion with regard to the issue of whether the Veteran's permanent hemiparalysis of the diaphragm was due to surgery at the Omaha VAMC.  Review of the addendum report, however, reveals that the clinician noted that he was unable to locate the Veteran's inpatient treatment records related to his August 2004 treatment for paraesophageal hernia and stated that, without the detailed operative reports, he would be unable to add much to the analysis of the previous examiner.  While it appears that the clinician conducted a search of VA's electronic records, there is no evidence that any attempt was made on the part of the RO/AMC to actually locate these records and provide them to the clinician.  For these reasons, the Board concludes that a remand is necessary in order that the Veteran's August 2004 operative reports can be located and provided to the clinician.

Moreover, the Board notes that in his response to the January 2012 SSOC, the Veteran contends that the conclusion of the VA examiner that "[o]ther than the failure of the attempted laparoscopic, there is no indication of any untoward developments," proves that the attempted procedure was an untoward development and that his permanent hemiparalysis disability is the result of carelessness, negligence, etc. on the part of VA.  Accordingly, if the claims folder is returned to the same clinician who prepared the December 2012 addendum and he arrives at the same conclusion, he is asked to clarify the meaning of his statement.  See Colvin v. Derwinski, supra.

The Court has held that where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by the claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record").  As the most recent VA treatment reports of record are dated October 2005, an attempt to obtain updated treatment records must be made.

Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for right lower extremity neuropathy as a result of VA hospitalization. 

As noted, the Court has held that where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by the claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record").  

The Veteran has contended that his right lower extremity neuropathy resulted from his June 2003 heart catheterization and that he was never advised that right leg nerve injury was a foreseeable consequence of his heart surgery.  A February 2010 VA examination report noted that, the June 27, 2002, cardiac catheterization procedure note indicated "[o]btained consent after explaining risks, benefits, indications, outcomes, alternatives and methods."  The examiner concluded that femoral nerve damage was an uncommon, but ordinary, risk of a cardiac catheterization and more likely than not would have been disclosed by a reasonable health care provider in connection with informed consent procedures.  The Board notes that a signed consent form from this surgery is not in the record available for review.  Review of this form would aid the Board in its determination as to the scope of consent.  Action should be taken to obtain this document, as well as any other records of this hospitalization and surgery which have not previously been obtained.  Thereafter, further examination should be obtained.

Entitlement to an initial compensable disability evaluation and effective date prior to March 3, 1998 for loss of sublingual salivary gland, to include dry mouth.

As noted above, during the pendency of this appeal, a January 2012 rating decision granted service connection for loss of sublingual salivary gland, to include dry mouth.  In February 2012, VA received a timely notice from the Veteran, expressing his disagreement with the noncompensable disability rating and the effective date.  The Veteran is therefore entitled to an SOC addressing his disagreement with the disability rating and effective date elements of the claim.  Manlincon v. West, 12 Vet. App. 238 (1999).  The Veteran should be advised that he has not perfected appeal of that claim, and he should be advised of the time period in which he may perfect an appeal if he wishes to do so.   

Entitlement to an effective date prior to August 14, 2002 for an award of a total disability rating for TDIU.

In the May 2012 memorandum decision, the Court noted that the claims folder contains no evidence concerning the Veteran's work history prior to 2001.  As the Veteran is requesting an effective date earlier than August 14, 2002 for TDIU, a remand is necessary to allow the Veteran to submit evidence concerning his work history before 2001.  

Entitlement to earlier effective dates for grants of service connection based on clear and unmistakable error (CUE) in a June 1992 rating decision and entitlement to earlier effective dates for grants of service connection based on CUE/non-finality in an October 1992 deferred rating decision and the claims for increased ratings for damage to the 12th cranial nerve, PTSD, and residuals of burns to both forearms, right 4th finger, and right 3rd finger.

As to the claims that the Veteran is entitled to earlier effective dates for the grants of service connection based on CUE in the June 1992 rating decision and CUE/non-finality in the October deferred rating, the Board finds that as these matters have been raised by the Veteran, but not adjudicated by the originating agency, further action must be taken.  Further, these matters are inextricably intertwined with the TDIU earlier effective date issue on appeal as a decision in the former may affect the decision in the latter.  Also, the rating issues claimed as relating to the CUE/non-finality claims are inextricably intertwined with the CUE/non-finality claims.  Accordingly, these matters must be remanded.

Accordingly, the case is REMANDED for the following action:

1.  Please do not remove any tabs from the claims folder.

2.  Obtain all records of the Veteran's June 2002 left heart catheterization, coronary angiography, left ventriculography and selective right femoral angiography, to specifically include the signed consent form obtained prior to the above procedures.  Any negative reply should be included in the claims folder.

3.  Obtain all available VAMC treatment records pertaining to the Veteran since October 2005, and all inpatient treatment records associated with his August 2004 treatment for paraesophageal hernia, and associate with the claims folder.  Any negative reply should also be included in the claims folder.

4.  Send the Veteran a letter requesting that he provide any records in his possession concerning his work history prior to 2001.  

5.  Following completion of the aforementioned, schedule the Veteran for an appropriate VA examination for an opinion as to whether the Veteran has partial or total loss of sense of smell as a residual of his service-connected frenulectomy.  The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the claims folder has been reviewed.  The clinician should perform a complete examination.  Any tests deemed necessary should be conducted.  The examiner should elicit and record a complete history of the Veteran's symptomatology associated with the condition and note that in addition to the medical evidence, the Veteran's statements have been taken into account in arriving at his/her opinion.

The examiner should specifically state whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that the Veteran has a loss of sense of smell (partial or total) as a residual of frenulectomy.   All opinions must be accompanied by a complete rationale.

6.  Following completion of paragraphs 1-4, above, the claims folder should be returned to the examiner who performed the February 2010 PTSD examination (if feasible) for an opinion as to whether the Veteran has an acquired psychiatric disorder other than PTSD, to include a psychogenic reaction, including as secondary to service-connected disabilities.  The examiner is asked to opine whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that an acquired psychiatric disorder (other than PTSD) was caused or permanently aggravated by (permanent worsening as opposed to temporary flare-ups or increase in symptoms) military service or a service-connected disability.  In addition, she is asked to explain her comment in the examination report that the Veteran's military service contributed to his psychiatric disorders in relation to the earlier comment in the same report that his Axis I disorders (including depressive disorder NOS) are secondary to his characterological disorder.  All opinions must be accompanied by a complete rationale.

7.  Following completion of paragraphs 1-4, above, schedule the Veteran for an appropriate VA examination to determine whether the Veteran has a dental disorder, to include bone damage and loss of teeth, as a result of military service. The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the claims folder has been reviewed.  The clinician should perform a complete examination.  Any tests deemed necessary should be conducted.  The examiner should elicit and record a complete history of the Veteran's symptomatology associated with the condition and note that in addition to the medical evidence, the Veteran's statements have been taken into account in arriving at his/her opinion.

The examiner should specifically state whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that the Veteran has a dental disorder, to include bone damage and loss of teeth, that was incurred in military service or was proximately due to, the result of, or aggravated by a service-connected disability.   All opinions must be accompanied by a complete rationale.

8.  Following completion of paragraphs 1-4, above, the claims folder should be returned to the examiner who performed the February 2010 neurocranial examination (if feasible) for an examination and opinion as to whether the Veteran has additional residuals of oral surgery (service-connected frenulectomy) not already service connected.  In this respect, the Board observes that the February 2010 VA examiner specifically noted that the examination was limited to the 7th, 9th and 12th cranial nerves.  The current examination should not be so limited.  The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the claims folder has been reviewed.  The clinician should perform a complete examination.  Any tests deemed necessary should be conducted.  The examiner should elicit and record a complete history of the Veteran's symptomatology associated with the condition and note that in addition to the medical evidence, the Veteran's statements have been taken into account in arriving at his/her opinion.  If the examiner who performed the previous examination is unavailable, the Veteran should be scheduled for a new examination.

The examiner should specifically state whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that the Veteran has residuals related to his frenulectomy other than to the 7th, 9th and 12th cranial nerves.  All opinions must be accompanied by a complete rationale.

9.  Following completion of paragraphs 1-4, above, the claims folder should be returned to the examiner who performed the February 2010 ear diseases examination (if feasible) for an addendum to her opinion regarding whether the Veteran experiences dizziness, to include as secondary to frenulectomy or residuals of perforated tympanic membrane.  The examiner is asked to specifically explain the meaning of her diagnosis of "psychogenic dizziness," (i.e., whether this means that the Veteran suffers from dizziness related to his service-connected PTSD or whether there is no clinical evidence of the existence of dizziness).  All opinions must be accompanied by a complete rationale. 

If the examiner who performed the previous examination is unavailable, the Veteran should be scheduled for a new examination to determine whether the Veteran experiences dizziness, to include as secondary to frenulectomy or residuals of perforated tympanic membrane.  The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the claims folder has been reviewed.  The clinician should perform a complete examination.  Any tests deemed necessary should be conducted.  The examiner should elicit and record a complete history of the Veteran's symptomatology associated with the condition and note that in addition to the medical evidence, the Veteran's statements have been taken into account in arriving at his/her opinion.

10.  Following completion of paragraphs 1-4, above, the claims folder should be returned to the examiner who performed the February 2010 sense of taste examination (if at all feasible) for an addendum discussing the effects the Veteran's service-connected partial loss of sense of taste has on his occupation and activities of daily living, if any.  All opinions must be accompanied by a complete rationale. 

If the examiner who performed the February 2010 examination is unavailable, schedule the Veteran for an examination with a qualified examiner to determine the current severity of the Veteran's service-connected partial loss of sense of taste.  The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the claims folder has been reviewed.  The clinician should perform a complete examination.  Any tests deemed necessary should be conducted.  The examiner should elicit and record a complete history of the Veteran's symptomatology associated with the condition and note that in addition to the medical evidence, the Veteran's statements have been taken into account in arriving at his/her opinion.  The examiner should also opine as to the effect, if any, the Veteran's partial loss of sense of taste has on his occupational and activities of daily living.  All opinions must be accompanied by a complete rationale.

11.  Following completion of paragraphs 1-4, above, return the claims folder to the examiner who provided the December  2012 opinion (if feasible) concerning whether the Veteran has a permanent disability, to include permanent hemiparalysis of the diaphragm, as a result of surgical treatment at the VAMC in Omaha in August 2004 for paraesophageal hernia.  The examiner should elicit and record a complete history of the Veteran's symptomatology associated with his condition and note that, in addition to the medical evidence, the Veteran's personal statements have been considered in his or her opinion.  In particularly, the RO/AMC should make sure that the examiner is provided with all treatment records and surgical reports associated with the Veteran's hospital stay.  The examiner is asked to review such records and determine whether, as a result of the August 2004 surgical procedure, the Veteran sustained additional disability due to the negligence of VA hospital services under 38 U.S.C.A. § 1151.  

The examiner should specifically state whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that:  a) the Veteran sustained a permanent disability, to include permanent hemiparalysis of the diaphragm, as a result of August 2004 VA hospitalization for treatment for paraesophageal hernia and b) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or c) VA furnished the hospital care or medical or surgical treatment without he Veteran's informed consent.  All opinions must be accompanied by a complete rationale.

12.  Following completion of paragraphs 1-4, above, return the claims folder to the examiner who provided the February 2010 opinion (if feasible) for an opinion as to whether, in connection with the June 2002 VA cardiac catheterization, it is at least as likely as not (meaning likelihood of at least 50 percent) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; whether VA furnished the surgical treatment without the Veteran's informed consent; and whether additional disability, to specifically include right lower extremity neuropathy, would have been foreseen by a reasonable health care provider, would not have been considered to be an ordinary risk of the treatment, and/or would have been disclosed by a reasonable health care provider in connection with informed consent procedures.  If the February 2010 examiner is not available, another examination should be scheduled with an appropriate specialist.  All opinions must be accompanied by a complete rationale.

13.  The clinicians are advised that the term "at least as likely as not" does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation.  "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim.

14.  If, for any reason, any clinician is unable to offer an opinion without resorting to speculation, it should be so stated.  In that case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history, and addresses such matters as whether a) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); b) the question falls outside of the limits of current medical knowledge or scientific development; c) the condition manifested in an unusual way, such that its cause or origin is unknowable; or d) there are other risk factors for developing the condition.

15.  Issue a SOC addressing the Veteran's notice of disagreement with the disability rating and effective date elements of the grant of service connection for loss of sublingual salivary gland, to include dry mouth.  Advise the Veteran of the time allowed for perfecting an appeal on this issue.  If the Veteran perfects his appeal by submitting a timely and adequate substantive appeal, the RO/AMC should return the claim to the Board for the purpose of appellate disposition, if the claim remains denied.

16.  Develop and adjudicate the issues of entitlement to earlier effective dates for grants of service connection based on CUE in the June 1992 rating decision or CUE/non-finality in the October 1992 deferred rating.  The Veteran and his representative should be properly notified of the decision and provided appellate rights.  Only if the claim or claims are appealed, and then the appeal or appeals perfected, should these claims be returned to the Board.

17.  Thereafter, review the claims folder to ensure that the foregoing requested development has been completed.   The remaining claims on appeal should be readjudicated.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto.  The matter should then be returned to the Board, if in order, for further appellate process.

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The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
BARBARA B. COPELAND 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs