Citation Nr: 1521495 Decision Date: 05/20/15 Archive Date: 05/26/15 DOCKET NO. 10-42 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to a service-connected cervical spine (neck) disability. 2. Entitlement to service connection for a vestibular disability, to include as secondary to a service-connected neck disability. 3. Entitlement to service connection for weakness in the legs, to include as secondary to a service-connected neck disability. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for asthma, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. 6. Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. 7. Entitlement to service connection for depression. 8. Entitlement to an initial disability rating in excess of 10 percent for a neck disability prior to September 7, 2010, and to a disability rating in excess of 20 percent thereafter. 9. Entitlement to an initial disability rating in excess of 10 percent for a disfiguring scar on the neck. 10. Entitlement to an initial disability rating in excess of 10 percent for a painful scar on the neck. 11. Entitlement to an initial disability rating in excess of 20 percent for left upper extremity nerve impairment. 12. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Kenneth Lavan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from January 1979 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008, June 2009, October 2011, and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the April 2008 rating decision, the RO denied service connection for a low back disability. The Veteran filed a timely Notice of Disagreement (NOD) and the RO issued a Statement of the Case (SOC) in September 2010. The Veteran perfected his appeal of this issue to the Board in a September 2010 VA Form 9. However, the RO notified the Veteran in October 2010 that he had not appealed the April 2008 determination, and that the rating decision had become final. In December 2012, the RO denied a petition to reopen a previously denied claim of service connection for a low back disability. The Board finds that the Veteran properly perfected his appeal of the April 2008 denial of service connection for a low back disability. Therefore, the issue is phrased above as one of service connection, rather than as a petition to reopen a previously denied claim. The June 2009 rating decision denied service connection for asthma and prostate cancer. The October 2011 rating decision granted service connection for a neck disability, left upper extremity nerve impairment, and scars of the neck, and assigned initial disability ratings. The December 2012 rating decision denied service connection for a bilateral shoulder disability, a vestibular disability, weakness in the legs, and denied entitlement to a TDIU. The Veteran testified at a hearing in June 2014 before the undersigned. A copy of the transcript has been associated with the electronic claims file. In July 2014, the Veteran submitted VA and private medical records directly to the Board. The Board has considered these records prior to Agency of Jurisdiction (AOJ) review. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). The issue of entitlement to service connection for lymphoma has been raised by the record in a June 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for weakness in the legs, asthma, and prostate cancer, to increased disability ratings for a neck disability and left upper extremity nerve impairment, and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In June 2014, prior to the promulgation of a decision on the issue of entitlement to service connection for a bilateral shoulder disability, the Veteran withdrew his appeal. 2. In June 2014, prior to the promulgation of a decision on the issue of entitlement to service connection for a vestibular disability, the Veteran withdrew his appeal. 3. The preponderance of the evidence reflects that the Veteran has a low back disability due to his active duty service. 4. The Veteran's neck scar does not result in visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, nor does it result in two or three characteristics of disfigurement. 5. The Veteran has one painful scar on his neck. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's appealed claim for service connection for a bilateral shoulder disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. The criteria for withdrawal of the Veteran's appealed claim for service connection for a vestibular disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 3. The Veteran's low back disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). 4. The criteria for an initial disability rating in excess of 10 percent for a disfiguring neck scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7800 (2014). 5. The criteria for an initial disability rating in excess of 10 percent for a painful neck scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7804 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204 (2014). Withdrawal may be made by the veteran or by his authorized representative. 38 C.F.R. § 20.204 (2014). At his June 2014 hearing before the Board, the Veteran withdrew his appeals as to the issues of service connection for bilateral shoulder and vestibular disabilities. The Veteran's and his attorney's statements indicating his intention to withdraw the appeal of these issues, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). In the present case, the Veteran has withdrawn this appeals as to these issues and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issues of entitlement to service connection for bilateral shoulder and vestibular disabilities and they are dismissed. II. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014). Prior to initial adjudication of his claims for service connection for neck scars, a letter dated in October 2010 satisfied the duty to notify provisions with regard to a service connection claim. This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records, Social Security Administration (SSA) records, and indicated private medical records have been obtained. A VA examination adequate for adjudication purposes was provided to the Veteran in November 2010 in connection with his claims for increased initial ratings for neck scars. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examination is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and complaints, and because it described his scar in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Veteran testified at a hearing before the undersigned in June 2014. The hearing focused on the elements necessary to substantiate his increased rating claims and, through his testimony and his attorney's statements, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); see also Procopio v. Shinseki, 26 Vet. App 76 (2012). With regard to the claim of entitlement to service connection for a low back disability, given the granting of the benefit, any further development or notification action under the VCAA would not avail the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. III. Service Connection Claim 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 (West 2014); 38 C.F.R. § 3.303 (2014). 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) (2014); 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) (2014). 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 (2014); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran has been diagnosed with intervertebral disc syndrome and lumbar disc protrusion at L3-L4, satisfying the first element of a service connection claim. Shedden, 381 F.3d at 1166-67. His STRs note that he was treated for a lumbosacral injury in January 1982. He subsequently had back pain for three more days and painful range of motion. In March 1982, he had back pain with severe muscle spasm and tenderness. Later in March 1982, it was noted that his back pain had lasted for eight days. The second element of a service connection claim is satisfied. Id. In November 2010, the Veteran underwent a VA examination. The examiner opined, It is at least as likely as not that the claimant's current back condition is a result of military service. An entry in the medical record from Camp Lejeune BAS dated 1/22/82 the diagnosis was low back pain. The report shows sharp pain running down the left leg. Another entry f[ro]m Camp Lejeune BAS dated 3/15/82 the diagnosis is low back pain and resolving spasm. The report shows continued use of moist heat and aspirin. It is noted on multiple chronological visits to the Battalion Aid Station at Camp Lejeune the claimant was treated for low back pain and back spasms which are present on the claimant's current history and treatment. Therefore, the current back condition is a progression of the original diagnosis. The positive opinion of the November 2010 VA examiner is highly probative evidence in support of the Veteran's claim. There is no medical or lay evidence to contradict the examiner's finding. The preponderance of the evidence is in favor of the Veteran's claim. The nexus element of a service connection claim is met. Id. Service connection for a low back disability is granted. III. Increased Rating Claims 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 2014); 38 C.F.R. §§ 4.1, 4.20 (2014). 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 (2014). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a non service-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2014). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the 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 2014). 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 (2014). 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). The Veteran has one service-connected scar on his neck. It is assigned two separate ratings: one for disfigurement under Diagnostic Code 7800 and one for pain under Diagnostic Code 7804. Diagnostic Code 7800 for the evaluation of 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 provides that a 10 percent disability rating is assigned when there is one characteristic of disfigurement. A 30 percent disability rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800 (2014). 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. Additional explanatory notations 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 & 5 (2014). In this case, the criteria set forth under Diagnostic Codes 7801 and 7802 are not applicable because those codes specifically address scars that are not of the head, face, or neck. 38 C.F.R. § 4.118 (2014). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. 38 C.F.R. § 4.118 (2014). A 20 percent rating requires three or four scars that are unstable or painful. 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. Id. Under 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. Id. The Veteran underwent a VA examination in November 2010. The examiner noted that the Veteran had a scar on his neck that was 16 centimeters (cm) long by .5 cm wide. It was painful. There was no skin breakdown. It was superficial with no underlying tissue damage. There was no inflammation, edema, or keloid. The examiner stated that it did not limit motion or function of the affected body part. The examiner opined that it was not disfiguring. The other medical evidence of record does not describe the Veteran's neck scar other than to note its presence. At his June 2014 hearing, the Veteran competently and credibly testified that his scar burned and that it shed skin in a manner similar to dandruff. The evidence does not show, nor does the Veteran assert, that his neck scar has visible or palpable tissue loss that causes either gross distortion or asymmetry of one feature or paired set of features. Therefore, the only way that his scar would warrant a 30 percent rating under Diagnostic Code 7800 is if there are two or three characteristics of disfigurement. His scar causes one characteristic of disfigurement. Specifically, his scar is 16 cm long. See 38 C.F.R. § 4.118, Diagnostic Code 7800 Note (1) (2014). No other characteristic of disfigurement is present. His scar is .5 cm wide, which does not meet the requirement that it be .6 cm wide at its widest part to constitute a characteristic of disfigurement. The evidence does not show, nor does the Veteran assert, that the scar is elevated or depressed, or is adherent to the underlying tissue. The remainder of the eight characteristics of disfigurement require that the area affected be 39 square cm (6 square inches). The Veteran's scar, as measured by the November 2010 VA examiner, was 8 square cm. The Veteran has not asserted that the scar has increased in size since that time. Although he has competently and credibly testified that the skin on top of his scar sloughs off, in order to be considered disfiguring, the area of abnormal skin texture must be 39 square cm (6 square inches). Because the scar results in one characteristic of disfigurement, but no more, a 30 percent rating under Diagnostic Code 7800 is not warranted. The VA examination noted that the Veteran has one scar on his posterior neck. It was painful. The record does not show, nor does the Veteran assert, that he has three or four scars on his neck that are unstable or painful. Therefore, a 20 percent rating under Diagnostic Code 7804 is not warranted. 38 C.F.R. § 4.118 (2014). Because the VA examiner found that the Veteran's scar did cause other disabling effects, including impacting his neck's ability to function or move, a rating under Diagnostic Code 7805 is not warranted. Id. Reviewing the evidence, the Board finds that the overall disability picture for the veteran's neck scar does not more closely approximate a 20 percent rating under Diagnostic Code 7804 or a 30 percent rating under Diagnostic Code 7800. 38 C.F.R. § 4.7 (2014). Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3 (2013). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). There is no evidence of exceptional or unusual circumstances to warrant remand to refer the Veteran's claim for increased ratings for his neck scar for extraschedular consideration. 38 C.F.R. § 3.321(b)(1) (2014). 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, there must be a comparison between the level of severity and the symptomatology of the Veteran's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral to the Director of the Compensation Service for consideration of an extraschedular rating 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 neck scar are contemplated by the schedular criteria in Diagnostic Codes 7800 and 7804. Specifically, his scar causes pain, which is contemplated by Diagnostic Code 7804. Additionally, it is located on his neck, which is contemplated by Diagnostic Code 7800, which addresses factors considered disfiguring including abnormal skin texture, which the Veteran discussed at his hearing. The criteria practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected neck scar, such that he is adequately compensated for "considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See 38 C.F.R. § 4.1 (2014). Further, 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 remand for referral of this case for extraschedular consideration is not in order. Finally, the Board notes that under Johnson v. McDonald, 762 F. 3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected symptoms experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple service-connected conditions. ORDER The appeal concerning the issue of entitlement to service connection for a bilateral shoulder disability is dismissed. The appeal concerning the issue of entitlement to service connection for a vestibular disability is dismissed. Service connection for a low back disability is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial disability rating in excess of 10 percent for a disfiguring scar on the neck is denied. An initial disability rating in excess of 10 percent for a painful scar on the neck is denied. REMAND A remand is necessary in this case for the following reasons. With regard to his claims for increased ratings for a neck disability and left upper extremity nerve impairment, 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). In this case, the Veteran reported increased severity of symptoms in an April 2012 private medical record and he testified at his June 2014 hearing that his neck disability had increased in severity since his November 2010 VA examination. Further, his VA treatment records note that he had neurogenic bowel and bladder, and it was not clear whether these symptoms were caused by his neck disability. A contemporaneous examination is needed. With regard to his claim of entitlement to service connection for weakness in the legs, the record shows that the Veteran has decreased strength in parts of his right lower extremity. Further, he has reported right foot dragging and falling. In a March 2015 operative report from Emory Healthcare, it was noted that the Veteran had a progressive inability to walk with weakness and sustained clonus in the right lower extremity. Imaging studies revealed severe cord compression at T10-T11 "secondary to calcified posterior elements likely ligamentum flavum and facet hypertrophy." An examination is needed to determine if the Veteran's weakness of the lower extremities is a neurological manifestation of his service-connected neck or low back disabilities. With regard to the Veteran's claims for service connection for asthma and prostate cancer, his STRs show that he was stationed at Camp Lejeune in 1981 and 1982. As a result, he was potentially exposed to drinking water contaminated with volatile organic compounds. See Consolidation and Processing of Disability Claims Based on Exposure to Contaminated Drinking Water at Camp Lejeune, North Carolina, Revised Fast Letter 11-03 (Jan. 28, 2013). 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, 86 (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. In this case, the record is insufficient to allow the Board to decide the Veteran's claims for service connection for asthma and prostate cancer because there is no medical evidence addressing whether these disabilities may be caused by the Veteran's documented service at Camp Lejeune. An examination is necessary. As the matters being remanded above may have a substantial effect on the merits of his claim for a TDIU, the claim for a TDIU is inextricably intertwined and remanded with his claims for service connection for leg weakness, asthma, and prostate cancer, and his claim for an increased rating for his neck disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Lastly, the Veteran submitted a timely May 2014 NOD with an April 2014 rating decision that denied service connection for depression. However, the RO has yet to promulgate an SOC with regard to this issue. This claim must be remanded to the RO for issuance of an SOC. 38 C.F.R. §19.9(c) (2014); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408- 410 (1995). However, the Board emphasizes that the Veteran must perfect his appeal in order to obtain appellate review. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2014). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Issue the Veteran a Statement of the Case, accompanied by notification of his appellate rights, which addresses the issue of entitlement to service connection for depression. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his neck disability and left upper extremity nerve impairment, and their impact on his ability to work and daily activities. The entire claims file 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. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner must determine the current severity of the Veteran's neck disability and left upper extremity nerve impairment, and its impact on his employability and daily activities. The examiner should specifically: i. Provide the Veteran's range of motion of his cervical spine, 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 cervical spine exhibits weakened movement, excess fatigability with use, incoordination, painful motion, pain with use, and express any additional limitation of motion in terms of additional degrees of motion lost. iii. List any associated neurologic abnormalities to include radiculopathy, bowel or bladder disabilities, or weakness in the legs. iv. Describe the current symptomatology of his left upper extremity nerve impairment. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rational for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. Schedule the Veteran for an examination with an appropriate clinician for his asthma. The entire claims file 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. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. A September 1982 STR noting complaints of hay fever during service at Camp Lejeune. ii. An October 2000 SSA record noting that the Veteran's asthma began in 1989. iii. A June 2001 VA treatment record noting that the Veteran had been diagnosed with asthma approximately 5 years ago. c. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's asthma began during active service, or is related to an incident of service including potential exposure to drinking water contaminated with volatile organic compounds at Camp Lejeune, North Carolina. d. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. Schedule the Veteran for an examination with an appropriate clinician for his prostate cancer. The entire claims file 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. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer began during active service or is related to an incident of service including potential exposure to drinking water contaminated with volatile organic compounds at Camp Lejeune, North Carolina. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 5. The AOJ must review the claims file and ensure that the foregoing development actions have been 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. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to service connection for leg weakness, asthma, and prostate cancer, entitlement to an increased initial rating for a neck disability, and entitlement to a TDIU. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his attorney must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 2014). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs