Citation Nr: 1314984	
Decision Date: 05/07/13    Archive Date: 05/15/13

DOCKET NO.  10-26 486	)	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 to reopen a claim for service connection for pharyngitis. 

2. Whether new and material evidence has been received to reopen a claim for service connection for eczema of the lower extremities.  

3. Whether new and material evidence has been received to reopen a claim for service connection for a duodenal ulcer. 

4. Whether new and material evidence has been received to reopen a claim for service connection for bilateral Achilles tendonitis.  

5. Whether new and material evidence has been received to reopen a claim for service connection for sinusitis. 

6. Whether new and material evidence has been received to reopen a claim for service connection for conjunctivitis. 

7. Whether new and material evidence has been received to reopen a claim for service connection for headaches. 

8. Whether new and material evidence has been received to reopen a claim for service connection for bronchitis.  

9. Whether new and material evidence has been received to reopen a claim for service connection for peripheral vascular disease (PVD).  

10. Whether new and material evidence has been received to reopen a claim for service connection for a back disability.  

11. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability.  

12. Entitlement to service connection for hepatitis C.  

13. Whether the reduction from 10 percent to a noncompensable rating for a forehead scar, beginning October 29, 2008, was proper. 

14. Entitlement to a disability evaluation in excess of 10 percent for a right knee disability.  

15. Entitlement to a compensable disability evaluation for gastroesophageal reflux disease (GERD).  

16. Entitlement to a compensable disability evaluation for a scar of the upper lip.  

17. Entitlement to a disability evaluation in excess of 30 percent for depression. 


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from September 1983 to July 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and a March 2010 rating decision of the VA RO in San Juan, the Commonwealth of Puerto Rico.  The March 2009 rating decision denied the Veteran's petitions to reopen claims for service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, sinusitis, conjunctivitis, headaches, bronchitis, PVD, a back disability, and a left knee disability.  It also denied his claims for increased evaluations for a right knee disability and an upper lip scar, and increased the Veteran's disability evaluation for an acquired psychiatric disorder from 10 percent to 30 percent effective on May 30, 2008, the date of his claim.  Lastly, it reduced the disability evaluation for his forehead scar from 10 percent to 0 percent, effective October 29, 2008.  The March 2010 rating decision continued the Veteran's 30 percent evaluation for an acquired psychiatric disorder and denied service connection for hepatitis C.  

The Veteran frequently moved between St. Petersburg and San Juan.  The St. Petersburg RO currently has jurisdiction over his claims file.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issues of entitlement to service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, sinusitis, and entitlement to restoration of a compensable rating for a forehead scar, and increased ratings for right knee disability, GERD, and depression are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. The Veteran's claims for service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, sinusitis, conjunctivitis, headaches, bronchitis, PVD, a back disability, and a left knee disability were denied in a November 2006 rating decision.  He did not file a Notice of Disagreement to that decision.  

2.  Evidence associated with the claims file since November 2006 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for pharyngitis. 

3. Evidence associated with the claims file since November 2006 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for eczema of the lower extremities.

4. Evidence associated with the claims file since November 2006 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a duodenal ulcer.

5. Evidence associated with the claims file since November 2006 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral Achilles tendonitis.

6. Evidence associated with the claims file since November 2006 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for sinusitis.

7. Evidence received since the November 2006 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for conjunctivitis.  

8. Evidence received since the November 2006 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for headaches. 

9. Evidence received since the November 2006 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bronchitis. 

10. Evidence received since the November 2006 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PVD.  

11. Evidence received since the November 2006 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back disability.  

12. Evidence received since the November 2006 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee disability.  

13. The preponderance of the evidence reflects that the Veteran does not have hepatitis C due to any incident of his active duty service. 

14.  The Veteran's upper lip scar is approximately 1 centimeter long, flat, freely mobile, nontender, and does not cause functional limitation.  


CONCLUSIONS OF LAW

1. The November 2006 decision denying service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, sinusitis, conjunctivitis, headaches, bronchitis, PVD, a back disability, and a left knee disability is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012).   

2. Evidence received since the November 2006 rating decision that denied service connection for pharyngitis, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 

3. Evidence received since the November 2006 rating decision that denied service connection for eczema of the lower extremities, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).

4. Evidence received since the November 2006 rating decision that denied service connection for a duodenal ulcer, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).

5. Evidence received since the November 2006 rating decision that denied service connection for bilateral Achilles tendonitis, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).

6. Evidence received since the November 2006 rating decision that denied service connection for sinusitis, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 

7. New and material evidence has not been received since the November 2006 rating decision sufficient to reopen a claim for service connection for conjunctivitis.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

8. New and material evidence has not been received since the November 2006 rating decision sufficient to reopen a claim for service connection for headaches.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

9. New and material evidence has not been received since the November 2006 rating decision sufficient to reopen a claim for service connection for bronchitis.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

10. New and material evidence has not been received since the November 2006 rating decision sufficient to reopen a claim for service connection for PVD.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

11. New and material evidence has not been received since the November 2006 rating decision sufficient to reopen a claim for service connection for a back disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

12. New and material evidence has not been received since the November 2006 rating decision sufficient to reopen a claim for service connection for a left knee disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

13. The Veteran's hepatitis C was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 

14. The criteria for a compensable disability evaluation for an upper lip scar have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7800-7805 (2008 and 2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

With regard to the Veteran's petitions to reopen claims for service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, and sinusitis, VA has substantially satisfied its duties to notify and assist in this case, as required by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision.  See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. 

With regard to the remaining claims, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

VA has satisfied its duty to notify by issuing pre-adjudication notice letters in October 2008 and January 2009 for the March 2009 rating decision and in June 2009 for the March 2010 rating decision .  The letters advised the Veteran of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence.  The letters provided notice regarding the disability evaluation and effective date elements of a service connection claim.  Dingess, 19 Vet. App. at 473.  The January 2009 letter informed the Veteran that new evidence must be evidence that was submitted to VA for the first time, that was not cumulative or tended to reinforce a previously established point.  He was informed that material evidence must pertain to the reason the claim was previously denied.  The January 2009 letter also explained that his claims were previously denied because there was no nexus between the claimed conditions and his period of active military service.  Therefore, there is no prejudice to the Veteran.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  

In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The pre-decisional June 2009 letter informed the Veteran that he must provide evidence showing that his upper lip scar had increased in severity.  

The duty to assist provisions of the VCAA have been met.  The claims file contains service treatment records (STRs), reports of post-service medical treatment, and the report of a VA scars examination from October 2008.  The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests.  In his April 2009 Notice of Disagreement, the Veteran asserted that the VA examination was inadequate because the examiner only asked a few questions and did not touch his scar.  The U. S. Court of Appeals for Veterans Claims (Court) has held that "the Board is entitled to assume the competence of a VA medical examiner."  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) ("[T]he Board implicitly accepted [the VA examiner's] competency by accepting and relying upon the conclusions in her opinion."), aff'd, 232 F.3d 908 (Fed. Cir. 2000).  

The Veteran has not been afforded a VA examination to assess the nature and etiology of his diagnosed hepatitis C.  VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

However, a VA examination is unnecessary to decide the claim for service connection for hepatitis C.  As will be discussed below, the Veteran has not been shown to have an event, disease, or injury in service to which a current diagnosis could be related.  His service treatment records are negative for any complaints, treatment, or diagnosis of hepatitis C or liver problems and the record contains no probative evidence that demonstrates otherwise.  Further, the record shows that the Veteran denied all risk factors for hepatitis C in April 2001.  Therefore, because there is no event, injury, or disease in service or a service-connected disability to which a current disorder could be related, the Board finds that a VA examination is unnecessary.  38 C.F.R. § 3.159(c)(4)(i) ; cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). 

The Veteran was not provided examinations in conjunction with his petitions to reopen claims for service connection for conjunctivitis, headaches, bronchitis, PVD, a back disability, or a left knee disability.  However, VA is not required to provide examinations for a petition to reopen a previously denied claim unless it is first reopened.  38 C.F.R. §  3.159(c) (2012).

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

New and Material Evidence

As a preliminary matter, in an October 2008 statement, the Veteran asserted that the RO did not possess or review all of his STRs when it issued its November 2006 rating decision.  Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence).  The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records.  38 C.F.R. § 3.156(c)(1)(i).  As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial.  Rather, the claim is simply reviewed on a de novo basis.  In this case, the Board finds that the Veteran's STRs were of record and reviewed by the RO in conjunction with the November 2006 rating decision.

In April 2006, the Veteran was notified that his original claims file was unavailable and was being "rebuilt."  In June 2006, the RO notified the Veteran that his STRs were not yet of record.  Subsequently, a formal finding was made that they were unavailable.  However, the Veteran's claims file contains two envelopes of duplicated STRs from his period of service from September 1983 to July 1987.  They were not date stamped.  However, in the November 2006 rating decision, the RO specifically stated that "[c]opies of Service Medical Records, for the period September 26, 1983 to July 24, 1987" were reviewed.  As the Veteran's STRs were reviewed by the RO prior to the November 2006 rating decision, the Veteran's submission of duplicates of his STRs does not constitute submission of official service department records that existed and had not been associated with the claims file when VA first decided the claims.  Therefore, the claims are properly phrased as petitions to reopen claims for service connection.  

In November 2006, the RO denied the Veteran's claims for service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, sinusitis, conjunctivitis, headaches, bronchitis, PVD, a back disability, and a left knee disability.  His claims for service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, and sinusitis were denied because the post-service medical evidence did not show treatment for or diagnoses of these conditions.  His claims for service connection for conjunctivitis, headaches, bronchitis, PVD, a back disability, and a left knee disability were denied because there was no evidence showing a nexus between these conditions and his period of active military service.  He did not submit a Notice of Disagreement and the rating decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). 

Under 38 U.S.C.A. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim.  King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions).  However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C.A. § 5108.

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. §§ 3.156(a). 

In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed."  Savage v. Gober, 10 Vet. App. 488(1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply.  Duran v. Brown, 7 Vet. App. 216, 220 (1994). 

At the time of the November 2006 denials, the record consisted of STRs, VA treatment records, private medical records, and statements from the Veteran.  Subsequently, additional VA treatment records, private medical records, and statements from the Veteran were received.  Some of the VA and private medical records were duplicates of evidence already of record.  However, some of the records are new.  All of the statements from the Veteran are new.  

Pharyngitis, Eczema of the Lower Extremities, Duodenal Ulcer, Bilateral Achilles Tendonitis, and Sinusitis

The RO denied the Veteran's claims for service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, and sinusitis because he had not been diagnosed with these conditions after separation from active duty.  

In an October 2008 statement, Dr. J. G., a private physician, stated that the Veteran received treatment for pharyngitis and chronic sinusitis.  Further, he states that he also had been diagnosed and treated for bilateral leg dermatitis, a duodenal ulcer, and Achilles tendonitis.  Presuming the credibility of Dr. J. G.'s statement, it raises a reasonable possibility of substantiating the claims because it indicates that the Veteran has diagnoses of the claimed conditions.  Justus v. Principi, 3 Vet. App. 510, 513 (1992)

Reopening of the Veteran's claims for service connection for pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, and sinusitis based on the receipt of new and material evidence is therefore warranted.  Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase 'raises a reasonable possibility of substantiating the claim' in applicable regulation as "enabling rather than precluding reopening").

PVD

The RO denied the Veteran's claim for service connection for PVD because the record did not show that he had this condition after active military service.  Dr. J. G.'s October 2008 statement did not list PVD among the Veteran's diagnosed conditions.  Instead, he stated that the Veteran had bilateral lower extremity dermatitis which "can be secondary to" PVD.  He did not state that the Veteran had been diagnosed with or treated for PVD.  Therefore, Dr. J. G.'s statement does not raise a reasonable possibility of substantiating the claim and is not material evidence.  38 C.F.R. § 3.156.  The remaining new evidence of record does not show a diagnosis of or treatment for PVD.  Accordingly, the Board finds that the record contains no new and material evidence sufficient to reopen the claim for PVD.  The claim is not reopened.  38 U.S.C.A. § 5108.  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

Conjunctivitis, Headaches, Back Disability, Left Knee Disability

The Veteran's claims for service connection for conjunctivitis, headaches, a back disability, and a left knee disability were denied because there was no evidence of a nexus between these conditions and the Veteran's period of active military service.  

In his October 2008 statement, Dr. J. G. stated that he treated the Veteran for headaches and a low back disability.  He stated that in addition to those conditions, the Veteran also had a low back disability, chronic conjunctivitis with blepharitis, and a left knee disability.  Dr. J. G. stated that these disabilities "could have been originated or are a possible consequence of active military service."  

Speculative language such as "could have been" and "possible" do not create an adequate nexus for the purposes of establishing service connection, as they do little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993).  This opinion is too speculative to be equivalent to presenting a reasonable possibility of substantiating a claim.  A finding of service connection may not be based on a resort to speculation or a remote possibility.  See 38 C.F.R. § 3.102 (2012); Obert, 5. Vet. App. at 33 (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a plausible claim); see also Davis v. West, 13 Vet. App. 178, 185 (1999).  

The remaining evidence of record shows treatment for conjunctivitis, headaches, a back disability, and a left knee disability.  However, the evidence of record at the time of the November 2006 rating decision showed that the Veteran had been diagnosed with and treated for these conditions.  Therefore, the evidence of treatment is not material to his claims.  See Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing veteran's current condition are not material to issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence).

Aside from Dr. J. G.'s statement, no other new evidence of record addresses the issue of a nexus between the claimed disabilities and the Veteran's period of active military service.  Accordingly, the Board finds that the record contains no new and material evidence sufficient to reopen the claims for conjunctivitis, headaches, a back disability, and a left knee disability.  The claims are not reopened.  38 U.S.C.A. § 5108.  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

Bronchitis

The Veteran's claim for service connection for bronchitis was denied because there was no evidence of a nexus between this condition and his period of active military service.  Dr. J. G.'s October 2008 statement does not discuss bronchitis.  The new medical records show that the Veteran receives occasional treatment for bronchitis.  The evidence of record at the time of the November 2006 rating decision showed that the Veteran had been diagnosed with and treated for this condition.  Therefore, the medical records describing the Veteran's current condition are not sufficient to reopen a claim based upon new and material evidence.  Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam).  

No other new evidence of record addresses the issue of a nexus between bronchitis and the Veteran's period of active military service.  Accordingly, the Board finds that the record contains no new and material evidence sufficient to reopen the claim for bronchitis.  The claim is not reopened.  38 U.S.C.A. § 5108.  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

Entitlement to Service Connection for Hepatitis C

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases.  38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

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

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

In December 1990, the Veteran had an abnormal liver function study.  In March 1991, he had a normal liver function study.  The Veteran was diagnosed with chronic hepatitis in June 1991; it was noted that its etiology was not yet determined.  In April 2001, he underwent a hepatitis C risk factor screen and denied undergoing a blood transfusion prior to 1992, using intravenous drugs, exposure to blood, hemodialysis, having tattoos and/or body piercings, using intranasal cocaine, abusing alcohol, having an unexplained liver disease, having an unexplained abnormal ALT (SPGT) value, and being a Vietnam era veteran.  He did not answer in the affirmative to any risk factors for hepatitis C.  In April 2005 and July 2010, he tested positive for hepatitis C.  The first element of a service connection claim is satisfied.  Hickson, 12 Vet. App. at 253.

The Veteran's STRs are negative with regard to liver problems, including a diagnosis of or treatment for hepatitis.  The earliest diagnosis of abnormal liver function is December 1990, three years after separation from active duty.  Significantly, the Veteran denied having risk factors for hepatitis C in April 2001.  Further, in June 2009, the RO requested the Veteran identify any risk factors that applied to him and he did not identify any in his July 2009 response.  No risk factors were documented in his STRs.  The Veteran has not made a specific assertion as to why he believes that his hepatitis C is related to service.  The second element of a service connection claim, medical or lay evidence of an in-service incurrence or aggravation of a disease, is not met.  Id.  

Lastly, there is no medical or lay evidence of record that provides a nexus between the Veteran's diagnosed hepatitis C and his period of military service.  His post-service medical records indicate that he has hepatitis C but do not relate its etiology to service.  The Veteran has not submitted lay evidence articulating a reason why hepatitis C was caused by service.  In the absence of evidence of a nexus, the third element of a service connection claim is not met.  Id.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim for service connection for hepatitis C must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Increased Evaluation for an Upper Lip Scar

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2011).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

The Veteran's entire history is to be considered when making disability evaluations.  38 C.F.R. § 4.1.  Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran submitted his claim for an increased evaluation for an upper lip scar in May 2008. "The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509.   

The Veteran's upper lip scar is currently evaluated as noncompensable under Diagnostic Code 7800, burn scars on the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck.  38 C.F.R. § 4.118 (2012).  

The criteria for rating of skin disabilities, including scars, were revised effective on October 23, 2008.  The revised criteria pertain to claims received on or after October 23, 2008.  73 Fed. Reg. 54,710 -12 (Sept. 23, 2008).  Because the Veteran filed his claim in May 2008, the older regulations must be addressed.  

Pursuant to 38 C.F.R. § 4.118, a Veteran who was rated under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 before October 23, 2008 can request review under those same Codes.  If such request is made, VA will review the disability to determine if a higher rating is due under those Codes, but the effective date of any increased award will not be effective before October 23, 2008.  38 C.F.R. § 4.118 (2012).  As it appears that the RO did so, the Board will address both sets of criteria.  However, the amendments, as discussed below, were made to include burn scars.  Because the Veteran's scar is not a burn scar, the diagnostic criteria in the old and amended regulations are essentially the same.  Therefore, the Board may also consider both sets of criteria without first determining whether doing so will be prejudicial to the Veteran.  Bernard v. Brown, 4. Vet. App. 384, 392-94 (1993).  

Prior to the October 2008 amendments, Diagnostic Code 7800 for the evaluation of disfigurement of the head, face or neck provided that a 10 percent disability rating is assigned when there is one characteristic of disfigurement.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2008).  Under Note (1), the eight characteristics of disfigurement are: a scar 5 or more inches (13 or more cm.) in length; a scar at least 1/4 inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39-sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 square inches (39-sq. cm.); and skin indurated and inflexible in an area exceeding 6 square inches (39- sq. cm.). Id. Pursuant to Note (2), tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle) and anatomical loss of the eye is to be rated under Diagnostic Code 6063 as appropriate.  Pursuant to Note (3), the adjudicator is to take into consideration unretouched color photographs when evaluating under these criteria.  Id.

Subsequent to the October 2008 change in the regulation, the diagnostic criteria remained essentially the same under Diagnostic Code 7800.  However, the description was amended to clarify that ratings applied to burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2012). 

The eight characteristics of disfigurement remained the same.  However, additional explanatory notations were added which state that disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury should be separately evaluated under the appropriate diagnostic codes. 

Also, the characteristic(s) of disfigurement may be caused by one scar or multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation.  38 C.F.R. § 4.118, Diagnostic Code 7800, Notes 4 and 5 (2012).

In October 2008, the Veteran underwent a VA examination for his scars.  He denied breakdown or ulceration of his scars.  The examiner found that there was no functional limitation from his upper lip scar and noted that, "[t]he patient denies any pain" from the scars.  Upon examination, he noted a 1 centimeter, "barely visible" transverse scar over the Veteran's left upper lip that was "somewhat obscured by a mustache."  The examiner found that it was flat, freely mobile, and nontender.  

The findings of the VA examiner show that the Veteran's upper lip scar does not meet the criteria for any of the eight characteristics of disfigurement and produces no functional limitation.  There is no other medical or lay evidence of record to show that the Veteran's upper lip scar meets the criteria for any characteristic of disfigurement or produces functional limitation.  Therefore, the upper lip scar does not meet the criteria for a compensable evaluation under either the previous or amended version of Diagnostic Code 7800.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2008 and 2012).  

As the Veteran is not entitled to an increased evaluation under Diagnostic Code 7800, the Board must determine whether a higher rating is warranted under any other potentially applicable Diagnostic Codes pertaining to scars.  The previous and amended versions of Diagnostic Codes 7801 and 7802 provided evaluations for scars, other than the head, face, or neck and therefore do not apply to the Veteran's upper lip scar.  38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802 (2008 and 2012)

Diagnostic Code 7803 provided a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provided that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provided that a superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118 (2008).  The amended version of the regulation eliminated Diagnostic Code 7803.  38 C.F.R. § 4.118 (2012).  The Veteran's upper lip scar does not meet the criteria for a 10 percent evaluation under Diagnostic Code 7803 because there is no evidence of record that there is frequent loss of skin over the scar.  

Prior to the October 2008 amendments, Diagnostic Code 7804 provided a 10 percent rating for superficial scars that are painful on examination.  Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118 (2008).  

Under the criteria of revised Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars.  Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional evaluation under this diagnostic code, when applicable.  38 C.F.R. § 4.118 (2012).  The Veteran's upper lip scar does not meet the criteria for a compensable evaluation under either version of Diagnostic Code 7804.  At his October 2008 VA examination, the examiner noted that the Veteran denied having pain from his scars.  In his April 2009 Notice of Disagreement and June 2010 Substantive Appeal, the Veteran specifically asserted that his forehead scar was tender and painful, but did not make the same assertion about his upper lip scar.  There is no other evidence of record to show that the upper lip scar is tender or painful.  Therefore, a compensable rating under either version of Diagnostic Code 7804 is not warranted.  

Prior to the October 2008 amendments, Diagnostic Code 7805 provided that other scars are to be rated on limitation of function of affected part.  38 C.F.R. § 4.118 (2008).

Under the criteria of revised Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate Diagnostic Code.  38 C.F.R. § 4.118 (2012).  The October 2008 VA examiner specifically found that the Veteran's scars did not cause any functional limitation.  There is no medical or lay evidence of record showing that the upper lip scar produces functional limitation or any other effect.  Therefore, evaluation under other Diagnostic Codes pertinent to functional limitation of the upper lip area is not warranted.  

Based on the above, the Board concludes that Diagnostic Code 7800 is the most appropriate for the Veteran's upper lip scar.  See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence).  

As noted above, there is no evidence of record to show that the Veteran's upper lip scar produces any characteristic of disfigurement.  C.F.R. § 4.118, Diagnostic Code 7800 (2008 and 2012).  Although the Board has considered all relevant lay evidence of record, greater weight is placed on the objective medical evidence as to this issue, and the preponderance of the evidence is against the claim.  The provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  

The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1).  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

As described above, the manifestations of the Veteran's one centimeter upper lip scar that is not disfiguring are contemplated by the schedular criteria set forth in Diagnostic Code 7800; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule.  In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating.  Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. 

Lastly, when entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).

In this case, the Veteran has not asserted, and the evidence does not show that the Veteran's upper lip scar has caused unemployability.  Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). 


ORDER

New and material evidence having been received, the claim for service connection for pharyngitis is reopened; the appeal is granted to this extent only.

New and material evidence having been received, the claim for service connection for eczema of the lower extremities is reopened; the appeal is granted to this extent only.

New and material evidence having been received, the claim for service connection for a duodenal ulcer is reopened; the appeal is granted to this extent only.

New and material evidence having been received, the claim for service connection for bilateral Achilles tendonitis is reopened; the appeal is granted to this extent only.

New and material evidence having been received, the claim for service connection for sinusitis is reopened; the appeal is granted to this extent only.

As no new and material evidence has been received, the claim for service connection for conjunctivitis is not reopened.

As no new and material evidence has been received, the claim for service connection for headaches is not reopened.



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As no new and material evidence has been received, the claim for service connection for bronchitis is not reopened.

As no new and material evidence has been received, the claim for service connection for PVD is not reopened.

As no new and material evidence has been received, the claim for service connection for a back disability is not reopened.

As no new and material evidence has been received, the claim for service connection for a left knee disability is not reopened.

Service connection for hepatitis C is denied.  

A compensable disability evaluation for an upper lip scar is denied.  


REMAND

While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal.  The following further development is required. 

Entitlement to Service Connection for Pharyngitis, Eczema of the Lower Extremities, a Duodenal Ulcer, Bilateral Achilles Tendonitis, and Sinusitis

As noted above, Dr. J. G.'s October 2008 statement indicated that the Veteran has been diagnosed with pharyngitis, eczema of the lower extremities, a duodenal ulcer, bilateral Achilles tendonitis, and sinusitis.  Further, he notes that these conditions "could have been originated or are a possible consequence of active service."  VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.  Id., at 83.  Although Dr. J. G.'s speculative opinion is not sufficient to establish service connection, it meets the low threshold for what constitutes an "indication" that these conditions may be related to service.  Therefore, VA examinations are warranted.  

Increased Evaluations for a Right Knee Disability and GERD

The Veteran's most recent VA examinations for his right knee and GERD were in October 2008, nearly five years ago.  VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected disability.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect.  See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); see also 38 C.F.R. § 3.326 (a).  The Veteran has asserted that the symptoms from his right knee disability and GERD have increased in severity since the October 2008 VA examinations.  A May 2010 VA treatment record notes that the Veteran had severe knee pain and that low doses of morphine did not relieve his symptoms.  A December 2009 VA treatment record indicates that the Veteran had frequent abdominal pain at night and took medication every day for his GERD.  Given that the examinations are nearly five years old and there is possibly some increase in severity, the Board finds that new examinations are required to determine the current severity of the Veteran's right knee disability and GERD.  38 C.F.R. §§ 3.159, 3.327(a) (2012). 


Increased Evaluation for an Acquired Psychiatric Disorder

The Veteran underwent VA examinations for his acquired psychiatric disorder in November 2008 and March 2010.  In November 2011, he reported an increase in symptoms to his VA health care provider.  He noted loss of interest in activities, anhedonia, and was almost tearful at his interview.  He also stated that the thought he would be better off dead, but that his belief in God prevented him from killing himself.  The VA psychiatrist noted that the Veteran presented with worsening symptoms over the past one and a half months.  The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect.  See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).  In this case a material change has been indicated by a VA psychiatrist, and therefore a new examination is warranted, even though the most recent VA examination is not very old.  

Forehead Scar

As a preliminary matter, the Board notes that the March 2009 rating decision reduced the disability evaluation for the Veteran's forehead scar from 10 percent to 0 percent, effective October 29, 2008, the date of VA examination showing improvement.  A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred.  See 38 U.S.C.A. § 1155 (West 2002).  Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.  See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2012); see also Brown v. Brown , 5 Vet. App. 413, 420 (1993).  

Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons.  In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice.  If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60 day period from the date of notice to the Veteran expires.  38 C.F.R. § 3.105(e).  When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).  In this case, the reduction of the Veteran's disability evaluation for a forehead scar from 10 percent to 0 percent did not result in a reduction or discontinuance of compensation payments being made.  Therefore, the notice and procedural requirements set forth in 38 C.F.R. § 3.105(e) are not applicable in this case.  As a result, the Board may determine whether the reduction was proper on grounds outside of due process concerns.  

As noted above, the criteria for rating of skin disabilities, including scars, were revised effective on October 23, 2008.  The Veteran's forehead scar is currently evaluated as noncompensable under Diagnostic Code 7800, burn scars on the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck.  38 C.F.R. § 4.118 (2012).  However, Diagnostic Code 7804 could be more favorable to the Veteran for the reasons discussed below.  

Prior to the October 2008 amendments, Diagnostic Code 7804 provided a 10 percent rating for superficial scars that are painful on examination.  Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118 (2008).  

Under the criteria of revised Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars.  Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional evaluation under this diagnostic code, when applicable.  38 C.F.R. § 4.118 (2012).  The Veteran's upper lip scar does not meet the criteria for a compensable evaluation under either version of Diagnostic Code 7804.  At his October 2008 VA examination, the examiner noted that the Veteran denied having pain from his scar.  In his April 2009 Notice of Disagreement and June 2010 Substantive Appeal, the Veteran specifically asserted that his forehead scar was tender and painful, representing an increase in symptoms since his examination five years ago.  As a result, a contemporaneous VA examination is warranted.  See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine whether the Veteran has pharyngitis that had its onset or was aggravated during active service, or is otherwise related to any incident of service.  

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has pharyngitis that began during active service or is related to any incident of service.  

d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 
	
2. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine whether the Veteran has eczema of the lower extremities that had its onset or was aggravated during active service, or is otherwise related to any incident of service.  

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has eczema of the lower extremities that began during active service or is related to any incident of service.  

d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

3. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine whether the Veteran has a duodenal ulcer that had its onset or was aggravated during active service, or is otherwise related to any incident of service.  

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has a duodenal ulcer that began during active service or is related to any incident of service.  

d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

4. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine whether the Veteran has Achilles tendonitis in either lower extremity that had its onset or was aggravated during active service, or is otherwise related to any incident of service.  

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has Achilles tendonitis of either lower extremity that began during active service or is related to any incident of service.  

d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

5. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine whether the Veteran has sinusitis that had its onset or was aggravated during active service, or is otherwise related to any incident of service.  

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has sinusitis that began during active service or is related to any incident of service.  

d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

6. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine the current severity of the Veteran's right knee disability, and its impact on his employability and daily activities. 

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must assess the current severity of the Veteran's right knee disability.  The examiner should specifically:

i) Provide the Veteran's range of motion of his right knee, expressed in degrees.  Repetitive motion testing should be conducted and the examiner should note, in degrees, any decrease of range of motion after repetitive use.  

ii) Determine whether the right knee exhibits weakened movement, excess fatigability with use, incoordination, painful motion, pain with use, and express this in terms of additional degrees of limitation of motion.

d) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination, as noted above. 

7. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine the current severity of the Veteran's GERD, and its impact on his employability and daily activities. 

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must assess the current severity of the Veteran's GERD.  In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination, as noted above. 

8. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine the current severity of the Veteran's depression, and its impact on his employability and daily activities. 

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must assess the current severity of the Veteran's depression.  A GAF score must also be provided.  In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination, as noted above. 

9. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine the current severity of the Veteran's forehead scar, and its impact on his employability and daily activities. 

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must assess the current severity of the Veteran's forehead scar.  The examiner must specifically note whether the scar is painful or tender.  In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination, as noted above. 

10. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 

11. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order. 

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).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs