Citation Nr: 1720057	
Decision Date: 06/06/17    Archive Date: 06/21/17

DOCKET NO.  13-04 720	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent prior to November 1, 2013 and in excess of 30 percent from that date for posttraumatic stress disorder (PTSD). 

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes, to include as due to herbicide exposure and/or secondary to service-connected disability. 

3.  Entitlement to service connection for Hepatitis C.

4.  Entitlement to service connection for a gastrointestinal disability (claimed as complaints of diarrhea and gastroesophageal reflux disease (GERD)), to include as secondary to service-connected posttraumatic stress disorder (PTSD).

5.  Entitlement to service connection for a skin disability, claimed as chloracne.

6.  Entitlement to service connection for hypertension, to include as due to service-connected disability. 



REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at law


ATTORNEY FOR THE BOARD

T. Wishard, Counsel


INTRODUCTION

The Veteran had active military service from January 1974 to September 1976.

These matters come before the Board of Veterans' Appeals (Board) from an August 2012 (Hepatitis C), May 2014 (hypertension, PTSD, diabetes), and a July 2015 (gastrointestinal disability, skin disability) rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Lincoln, Nebraska.  

The AOD characterized one issue as entitlement to an earlier effective date, prior to November 1, 2013, for the increased 30 percent evaluation for PTSD.  The Board has recharacterized this issue as encompassed in the staged rating listed above, as the question of a rating higher than 10 percent prior to November 1, 2013, (to include the 30 percent requested) is a part of the increased rating claim on appeal.

In 2013 the Veteran testified before a Decision Review Officer in Lincoln, Nebraska.  A transcript of that hearing is of record.

The issue of entitlement to service connection for hepatitis was previously before the Board in December 2015 and was remanded for further development.  It has now returned to the Board for further appellate consideration. 

The issue(s) of entitlement to service connection for a skin disability and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to July 25, 2013, the Veteran's service-connected acquired psychiatric disability has been manifested by no more than mild or transient symptoms or symptoms controlled by medication. 

2.  During the period from July 25, 2013, the Veteran's service-connected acquired psychiatric disability has been manifested by symptoms such as sleep impairment, irritability, and depressed mood, productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 

3.  At no time during the rating periods on appeal has the Veteran's service-connected acquired psychiatric disability caused more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

4.  In an unappealed December 2008 decision, the Board denied service connection for diabetes. 

5.  New and material evidence has not been received to reopen a claim of entitlement to service connection for diabetes, to include as due to herbicide exposure and/or secondary to service-connected disability.

6.  The most probative evidence is against a finding that the Veteran's hepatitis is causally related to service. 

7.  The most probative evidence is against a finding that the Veteran has a gastrointestinal disability causally related to, or aggravated by, active service or a service-connected disability.  


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent prior to July 25, 2013, for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2016).

2.  The criteria for a rating of 30 percent, and no higher, from July 25, 2013, for PTSD have been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2016).

3.  Evidence received since the last final denial on the issue of service connection for diabetes is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156, 20.1104 (2016)  

4.  The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). 

5.  The criteria for service connection for a gastrointestinal disability (claimed as complaints of diarrhea and gastroesophageal reflux disease (GERD)) , to include as secondary to service-connected PTSD have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  


Legal Criteria

Rating Disabilities 

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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 closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3.

In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Moreover, an appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. 

Rating PTSD 

PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  The VA Schedule rating formula for mental disorders reads in pertinent part as follows:

100 percent rating - Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.

70 percent - Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships).

50 percent -- Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

30 percent-- Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).

10 percent -- Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). 

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118 

New and Material Evidence

In general, Board decisions are final on the date stamped on the face of the decision. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1100 (2016).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant.  Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted.  Id. at 1384.  See also Butler v. Brown, 9 Vet. App. 167, 171 (1996).

"New" evidence is existing evidence not previously submitted to agency decision makers.  "Material" evidence is 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 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, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim).

Service Connection 

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a).   

Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.

Increased Rating for PTSD

The Veteran's PTSD is rated as 10 percent disabling from March 29, 2012, the date of his initial claim for PTSD, to October 31, 2013, and as 30 percent disabling from November 1, 2013.  The Board finds, for the reasons noted below, that the rating of 30 percent is warranted from July 25, 2013, and that no higher rating is otherwise warranted for any period on appeal.

Prior to July 25, 2013

January and February 2012 VA clinical records reflect that the Veteran sought to establish mental health care for PTSD.  As an initial matter, upon review of the records, the Board finds that the Veteran was not completely accurate or consistent with the details of his service and other aspects of his life.  Thus, his lay statements lack credibility with respect to these inconsistent details.  For instance, they reflect that he stated that he retired from the military in 1976 when in actuality he was not retired, but was separated under Chapter 5, AR 635-200.  In addition, he stated that he had combat experience, when he actually served as a clerk and his service personnel records indicate that he did not serve in Vietnam or otherwise engage in combat.  He also stated that he had last used illicit drugs in 1980, whereas, other records reflect that he reported last using illicit drugs in 1986.  The Veteran has reported that he was honorably discharged; however, his discharge was a General discharge under honorable conditions.  He reported that he had trouble maintaining relationships since service; however, he had been married for two decades until a divorce in approximately 2011 and was currently in another relationship)  Even ignoring this inaccurate reporting, the Board finds that the Veteran's PTSD symptoms are not indicative of a rating in excess of 10 percent prior to July 25, 2013.  

The Veteran reported he reported some intrusive thoughts, nightmares, hyperarousal, and being on guard at all times.  Nonetheless, the clinician found that the Veteran had a GAF score of 65-70 and that his symptoms were "sub threshold at present time and it may be in part due to his lexapro therapy."

March 2012 VA clinical records reflect that the Veteran reported a "little bit" of disturbing dreams, acting or feeling as if the stressful experience was happening again; being "extremely" upset when something reminded him of the stressful experience from the past; feeling distant and emotionally numb; and having a moderate loss of interest in activities he used to enjoy; feeling easily startled, and having concentration difficulties.  Upon examination, he had good grooming and hygiene, normal behavior, good eye contact, logical and goal-directed thought processes, adequate insight, relevant speech, no suicidality, no homicidality, and an appropriate mood.  He was assigned a GAF score of 60.  

A March 2012 VA mental health group counseling note reflects that the Veteran reported that when he was in Korea he saw soldiers being captured and killed, that he witnessed a security tape in which American soldiers were decapitated by North Korean soldiers, and that his life had been in danger multiple times.  The Board notes that the Veteran's description of the "ax murders" in the DMZ is not accurate. While two Americans were killed, neither was decapitated.  Rather, one died of a beating at the scene, and the other, also beaten, died at the hospital.  The Board takes notice that Veteran's reference to the "ax murders" refers to the August 1976 incident in which two U.S. military officers were killed and others injured by North Koreans at the DMZ during an incident involving the attempt by Joint Security Force (U.S. military and South Korean Army forces) to trim tree branches which were found to obscure views.  The two officers died after being beaten by the wooden end of axes.  The examiner assigned a GAF score of 60.

A May 2012 VA clinical record reflects a GAF score of 65 and notes that the Veteran's current symptoms, compared to his early symptoms, are relatively mild and in the realm of problematic irritability, avoidance/distrust of others, and anxious reactions to reminders.  He had good grooming and hygiene, normal motor behavior, fair eye contact, a cooperative attitude, logical and goal-directed thought processes, relevant thought content, and adequate insight.  He had no suicidality or homicidality.  

The claims file includes a June 2012 VA examination which notes that the Veteran has been diagnosed with depressive disorder and that the symptoms are intertwined with the PTSD.  The examiner found that the Veteran had a GAF score of 75.  It was noted that the Veteran was not reporting any current mental health treatment, but had taken Celexa and Zoloft in 2002 and/or 2003.  Upon examination, the examiner found that although the Veteran reported subjective mental health symptoms, those symptoms did not rise to the level of chronicity required and/or are not objectively identified on examination.

A June 2013 VA record reflects a GAF score of 60.  The Veteran reported that severe anxiety is not as much an issue for him as having irritable angry responses in situations, although he "finds that he is able to manage his response to others for the most part, but does note that he finds this has affected his personal relationships." The Veteran had good grooming and hygiene, normal motor behavior, good eye contact, and cooperative attitude; however his mood was angry and his affect was constricted.  His speech was relevant, his thought processes were logical and goal-directed, his thought content was relevant, and his insight was adequate.

In sum, prior to July 2013, the Veteran's PTSD symptoms do not more nearly approximate the criteria for the higher, 30 percent rating, as they were noted to be subthreshold, relatively mild, not rising to a level of chronicity required and/or are not objectively identified on examination.  His GAF scores while on medication and while not on medication were between 60 and 75.  

Although GAF scores are no longer used in the current DSM-5, the Veteran's past scores are indicative that the examiner(s) were of the opinion that the Veteran's had mostly mild symptoms or some difficulty social occupational or school functioning but that the Veteran was generally functioning pretty well, and has some meaningful interpersonal relationships.  (A GAF score of 61 or higher is indicative of mild symptoms; a GAF score of 51 to 60 is indicative of moderate symptoms.)  The Veteran's high GAF scores, taken with the examiner's findings, are indicative of no more than mild symptoms.  As noted above a 10 percent evaluation is appropriate where symptoms are mild or transient or where symptoms are controlled by continuous medication. 

From July 25, 2013

A July 25, 2013 VA record by nurse, R.F., reflects the following:

[The Veteran] came to red clinic desk to be evaluated in the triage and became very agitated and demanding and swearing when told he would have to wait his turn.  [The Veteran] made the clerks feel threatened by his behavior and they and several patients in the waiting room were put off by his loud swearing and demands.  Incident was relayed to his supervisor [D.T.] who will speak with patient and suggested that since this was not the first incident that we initiate a disruptive patient form which we have. 

Another July 2013 VA record reflects that the Veteran was assigned a GAF score of 55-60.  The Veteran reported to the examiner that he makes a strong effort to contain his emotions and anxiety.  He was noted to have good grooming and hygiene, normal motor behavior, good eye contact, and a cooperative attitude; however his mood was angry and his affect was constricted.  His speech was relevant, his thought processes were logical and goal-directed, his thought content was relevant, and his insight was adequate.  He had no suicidality or homicidality. 

In August 2013, the Veteran stated that his psychologist has provided some meditation tapes for him to use to help with his PTSD.  August 2013 correspondence from the Clinical Risk Management Committee Chairperson reflects that in July 2013 he exhibited inappropriate behavior at a VA clinical facility.  It was noted that he was "loud, demanding, used profanities and were disruptive to the treatment environment."  (See above noted record.)

September 2013 correspondence from therapist L.A. reflects, in pertinent part, as follows:

As an addictions therapist, [the Veteran] is typically professional in his interactions with both veterans and staff.  Nevertheless, I have witnessed several occasions when [the Veteran] appeared stressed and he demonstrated emotional and behavioral reactions such as anger outbursts that seemed out proportion to the situation as well as guardedness and suspicion about the motives of other staff.  These atypical reactions were perplexing to me at the time, however over time as our professional relationship progressed [the Veteran] disclosed concerns about possibly having PTSD and within the context of this disclosure, these behavior seemed to make more sense. 

In September 2013 correspondence, DOM Chief D.B. stated that she had been the Veteran's supervisor since October 2012.  She also stated, in pertinent part, as follows:

I have seen on occasion that [the Veteran] can get overwhelmed and react quickly.  Occasional [the Veteran] will react in anger but has not been violent.  He can at times react to stress by leaving the situation and attempting to get away.  This has not caused major disruption to his work.

A November 2013 VA examination report reflects a GAF score of 62.  The clinician found that the Veteran's symptoms were best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner noted that the Veteran has had a "casual dating relationship but reported rarely going out socially as a couple partly due to hypervigilance."  He also reported that he sometimes plays golf with friends, and has "several acquaintances but few friends."  It was noted that he enjoys reading, is able to be independent in all activities of daily living, and denied taking extra security measures at this home. He continued to be employed as a therapist with responsibility for groups and one on one contact with Veterans.  The Veteran felt that job stress has increased during the past year due to decreased staff and additional work demands. He felt he has been more irritable with coworkers and his supervisor.  He reported taking at least a day off from work each month as a "Mental Health" day.  He reported depressed mood, anxiety, suspiciousness, chronic sleep impairment, and an increase in irritability an anger outbursts that had impacted his job performance.

A December 2014 Initial Outpatient Evaluation from Omaha Insomnia and Psychiatric Services record reflects the following: 

the patient stated that he is struggling with some anxiety and depression secondary to his marital conflict and work related issues.  He-verbalized that lexapro is helpful, but he is having sexual side effects.  The patient reported that he is struggling with intrusive thoughts, hyperarousal symptoms and cue induced anxiety.  He talked about disparity at work and he had some verbal escalation recently. 

The Board notes that the evaluation appears to include exaggerated reports by the Veteran of his service as the Veteran reported that he witnessed Americans being decapitated.  The report notes that the Veteran reported both difficulty falling asleep and staying asleep.  He denied suicidal ideation, homicidal ideation, auditory hallucinations or visual hallucinations, obsession, or compulsions.  There were no symptoms suggestive of hypomanic or manic episodes both at present and in the past. There was no psychosis.  The Veteran complained of poor energy levels and fatigue; however, the Board notes that this has also been noted to be due to his Hepatitis C.

The evaluation report notes that the Veteran was working as a counselor.  Upon examination, the Veteran had good grooming, normal eye contact, normal speech, local and goal directed thought process, no suicidal ideation, no homicidal ideation, no hallucinations, no obsessions, and no delusions.  He had anxious mood.  His judgement and insight were intact.  He was assigned a GAF score of 65.  He was prescribed an increase in Lexapro.  

Although the Veteran reported symptoms and that his relationship with his wife was very "frustrating" (e.g. April 2015), private clinical records from Omaha Insomnia and Psychiatric Services reflect that the Veteran had a GAF score of 65-70 (April 2015), 60-65 (May 2015), 65 (June 2015), good insight and judgment, intact attention, span, concentration, and language, no delusions us, above average basis of knowledge, normal thought processes, and normal speech.  He continued on medication.  

A November 2015 VA examination report reflects that the Veteran's PTSD symptoms were best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  The clinician further found that the Veteran's mental condition symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.  His GAF score was 62.  The Veteran reported that he was distant with his son, but "close" to his grandchildren.  He had married in approximately 2014 and was living with his wife.  He reported that he and his wife like to go to the movies, although he likes to sit in the back.  He also reported that he had gone to a concert that weekend and liked to sit in the balcony.  He also reported that he likes to go to the golf range and hit golf balls, which he had done the prior day.  It was noted that the Veteran was employed full time.  He also reported depressed mood, temper issues, anxiety, and poor sleep.

Upon examination, the Veteran was pleasant, open, cooperative, and smiled easily.  He was oriented in all spheres, and had intact attention, concentration, and memory.  He was competent to manage his funds.

The Board finds, based on the record as a whole, that a rating higher than 30 percent is not warranted for any period since July 25, 2013.  The Veteran's symptoms have consistently been found to cause no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The Board has considered the examples found in the rating criteria for a 50 percent rating and finds that the Veteran does not exhibit the majority of those symptoms and does not exhibit other symptoms not listed in the criteria which would rise to the same level, or higher level, of severity.  He has not been found to have flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, impaired abstract thinking; difficulty in establishing and maintaining effective work and social relationships.  Moreover, he has not been found to have suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships; gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

The Board acknowledges that the Veteran has had periods of irritability as noted by co-workers; however, the Board finds that these, along with his other symptoms, are adequately compensated in a 30 percent rating.  In this regard, the Board notes that the Veteran's co-workers have noted that he is typically professional and that his anger, which has not resulted in violence, has not caused a major disruption to his work.  The Board finds that, affording the Veteran the benefit of the doubt, the July 25, 2013, record documenting an incident of concern is the earliest date where it is factually ascertainable that the Veteran's PTSD symptomatology more nearly approximated symptoms such as those listed in the 30 percent rating criteria.  

Notably, with regard to his social functioning, the Veteran has continued with activities such as golfing, going to the movies, going to a concert, dating, and having a close relationship with grandchildren.  Importantly, the Veteran's job involves being a therapist for groups and in one-on-one settings, with other Veterans.  Thus, his symptoms are not so severe as to prevent him from working closely and vocally with other individuals, in group settings and individual settings.  In addition, and importantly, the examiners have consider all the Veteran's reported symptoms and still have not found that his symptoms would rise to the level of a 50 percent or higher evaluation.  

The Board has considered all of the Veteran's reported symptoms and statements to include that work difficulties and social difficulties, to include not having close friends and having difficulty with sleeping.  The Board also notes that the Veteran's symptoms may wax and wane and that he has been on medication at times. However, despite his symptoms, the Veteran has been able to continue to have a relationship with his family, begin dating, leave the home to golf and go to the movies, and work full time. 

The Board also notes that the Veteran works as a therapist.  Thus, the Veteran may have more experience, education, and training that then average lay person. Nonetheless, the clinical records and examinations are more probative as to the level of severity of his symptoms than his lay statements. 

The Board acknowledges the Veteran's irritability and outbursts.  Importantly, it is not the symptom alone which determines a rating, but rather, how the symptom affects the Veteran. See Mauerhan v. Principi, 16 Vet. App. 436, (2002).  In the present case, the Veteran has been able to manage his symptoms and continue to work, albeit with some (approximately one day a month) time off for "mental health" without any evidence of being demoted, reprimanded, adversely counseled, or had other adverse action against him because of his symptoms.  The Veteran's ratings encompass that his service-connected disability may affect his employment.

Moreover, the most probative and competent credible evidence is against a finding that the Veteran has been in persistent danger of hurting himself or others.  He has been seen by several clinicians on numerous occasions and none has found that he needed to be hospitalized to prevent a suicide or assault on another, and he has continued to be allowed to work with patients in group and individual sessions

The evidence also reflects various GAF scores, as noted above.  Although GAF scores are no longer used in the current DSM-5, the Veteran's past scores are indicative that the examiner(s) were of the opinion that the Veteran's had mostly mild symptoms or some difficulty social occupational or school functioning but that the Veteran was generally functioning pretty well, and has some meaningful interpersonal relationships. 

The Board finds that the impact of the Veteran's symptoms, when considered with the record as a whole, has not been so severe as to warrant a rating in excess of 10 percent prior to July 25, 2013, or in excess of 30 percent from that date. 

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Other considerations

The rating formula for mental disorders allows for them to be rated based on the level of occupational and social impairment.  While the code lists examples to be considered, the Veteran's acquired psychiatric disability related symptoms have been considered, whether or not they are listed as an example.  The evaluations are based on the severity of the Veteran's symptoms and the code allows for various evaluations based on levels of symptoms from mild or transient to those causing total impairment.  Thus, regardless if the actual related symptom is listed in any criteria, it is still considered based on its severity.  Hence, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008).  The Veteran is in receipt of service connection for PTSD and erectile dysfunction.  The evidence does not suggest that his case involves an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple entities. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), See also Doucette v. Shulkin, No. 15-2818 (Vet. App. Mar. 6, 2017).

A claim for a total rating for compensation purposes based on individual unemployability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009).  The evidence reflects that the Veteran has been employed during the rating period on appeal.  The evidence does not suggest that it is less than substantial gainful employment.  Accordingly, the Board finds that the matter of entitlement to a TDIU is not raised in the context of this claim. 
 
Hepatitis

The Veteran contends that he has hepatitis due to a circumcision in service and/or use of a jet air gun for inoculations, and/or injections when he was treated with pneumonia.  However, the Board finds, as discussed in further detail below, that the preponderance of the evidence is against the claim.  

The Veteran has stated that he underwent circumcision at hospital on Camp Casey, South Korea, that was performed in such a manner that blood from other soldiers getting the same procedure done before him remained on the same table when he underwent his procedure.  His statements regarding his drug use have varied in the record.  In March 2008 he stated that he used marijuana and snorted cocaine but has not used any intravenous drugs since 1975 while stationed at Fort Ord, California and that he experimented with "heroin no more than 2 or 3 times".  In the same document, he has stated that he had pneumonia in service and may have been treated with syringes used on patients prior to him.

The Veteran's STRs reflect that he was treated with an injection in September 1975.  He was given his last inoculation in December 1975.  He was treated for pneumonia in May 1976.  He had a circumcision in July 1976.  He separated from service in September 1976.

Post service, a December 1977 record reflects that "in the past [the Veteran] has been into the drug scene but now feels that he has kicked that habit and does not associate with those friends any more than he has to."  

A 1979 clinical record reflects the following: 

Patient has a history of drug use, this being marijuana and heroin.  He began using heroin in 1976 while in the service. He claims that he supported this habit for approximately five to six months, shooting up with heroin approximately three to four times a week. 

Thus, according to the 1979 record, the Veteran used needles for heroin injections in service between 60 and 96 times.

A February 1987 record reflects that the Veteran reported that his younger brother is involved in marijuana and cocaine and that he and his brother "frequently did drugs together."  He further stated that he began using drugs at age fourteen.  It was noted that the Veteran "is involved with cocaine, marijuana and alcohol" and his "last high of drugs was taken in May of 1982."  The February 1987 examiner found that the Veteran appeared to provide incomplete information in a sociopathic type of presentation and may have been in denial with a lack of sincere interest in addressing his drug problem.  A May 1987 record reflects that the Veteran's girlfriend had a venereal disease and he was seen for exposure. 

A March 1987 record reflects that the Veteran has a past history of polydrug abuse.  It was noted that "occupationally, his career has been hindered by his drug abuse, but he has not been fired or quit because of his substance use."  The Board finds that the use of the terms "habit" and "abuse" are evidence against incidental experimental or minor use limited to the 1970s as alleged by the Veteran.

The Veteran was diagnosed with Hepatitis in January 1996.  A January 29, 1996 record from Dr. T. D. of Gastro-Intestinal Associates, P.C., reflects that the Veteran stated that he "could have been exposed to Hepatitis C in the early 1980's when he had an intimate relationship with someone who used heroin.  He also could have been exposed in 1976 at a time when he himself experimented with parenteral drugs.  However this was only for about two or three months.  He has never received blood transfusions."  It was also noted that the Veteran had hand surgery in 1979, circumcision in 1976, and an episode of syphilis in 1974.  Dr. T.D. stated that "it is likely that he has had the disease for 20 years and if his liver biopsy is nearly normal then that would indicate that there has been very little permanent liver damage in 10 years."

In February 1996 correspondence, Dr. T. D. stated "I suspect that he has had chronic hepatitis C for up to 15-20 years."  Thus, Dr. T.D. indicated that the Veteran's disability had its onset at most from 1981 to 1976.  Notably, Dr. T.D. changed the time period of onset from 20 years to 15 to 20 years. 

In a December 2006 statement, the Veteran stated that the VA record which notes that he used drugs intravenously while in the military for five to six months at three to four time per week is "false, misleading and never reported".  In support of his claim that he did not use drugs to such an extent as noted in 1979, he stated: "How in the world could I have performed my duties as a clerk in such a stupor state?"

With regard to the performance of his duties, the evidence reflects that the Veteran did not adequately perform his service.  Military service personnel records reflect that he had "substandard work performance" (July 1975), showed up late for work or missed work, and that his performance was "marginal at best." (November 1975).  He was counseled on at least eleven occasions and received at least four Article 15's (nonjudicial punishment).  He was noted to have lied to a senior noncommissioned officer, had a poor attitude, lacked motivation, and to have "failed miserably" after being "afforded every opportunity to prove himself." (See August 1976 records.)  

In January 2007, the Veteran completed a Risk Factors for Hepatitis Questionnaire in which he stated that he used intravenous drugs on approximately four times in service but always with a "clean syringe because of fear of hepatitis told to me by the other soldiers."  He also stated that used cocaine sporadically but never with a straw, rather he snorted it off a card.  

January 2007 correspondence from Dr. C. Bash reflects that the Veteran's "hepatitis C was likely caused by his surgical experience and contaminated blood, in service, while in Korea in 1976."  Dr. Bash's opinion was based largely on the following statement that he described as a "fact": "Patient had a surgical operation in 1976 in which he followed several other soldiers onto the operation table without sterile conditions according to his attached lay statements."  Dr. Bash noted that the Veteran had other risk factors for the development of hepatitis C and stated, in pertinent part, as follows:

He had surgery in a foreign country and therefore JCAHO (Joint Commission for Accreditation of Hospital Organizations) guidelines concerning sterility are not/were likely not enforceable.  A non-sterile environment which contains blood and blood products is a known vector for transmission of hepatitis C from patient to patient. . . . 

[i]t is very difficult to tell which exposure caused his hepatitis C (either the service surgery or the drug use).  It is a little bit more likely that the service time surgery is the causative event as this event was documented in his medical history and it occurred in a relatively dirty Korean environment.  His needle use is not documented in his medical record therefore the information is exclusively lay in nature.  He has stated that he needles he used were clean, so this event was likely relatively sterile, from a Hepatitis C standpoint.

The Board notes Dr. Bash did not provide sufficient evidence as to why a U.S. military facility would have allowed for substandard sanitary conditions just because it was in a foreign country.

In February 2007 correspondence, Dr. Bash stated that he prior statement was misconstrued by VA, and that that his previous opinion "places the evidence in equipoise and therefore the benefit of the doubt should go to the veteran."  The Board notes that Dr. Bash's use of legal terms is indicative that his report is written in an attempt to obtain VA compensation benefits for the Veteran, and not merely to objectively provide an etiology for the Veteran's disability; thus, its probative value may be questioned.  See Caluza v. Brown, 7 Vet.App. 498 (1995).

Dr. Bash further stated, in pertinent part, as follows:

I stated that it was impossible to tell if his hepatitis came from drug use or his circumcision, which was done under, dirty conditions in Korea when the blood supply there was unsafe. (See attached service records). The risk of hepatitis from surgery in service is a known medical risk that was likely greater than his risk for hepatitis from drug use, especially since he always used a clean needle. His records do not contain any other risk factors for the development of hepatitis. The preponderance of the evidence does not preferentially support either cause (surgery or drug use). 

The Board finds that Dr. Bash's opinions, which are based primarily on the "fact" that the Veteran's circumcision was performed in a dirty environment, lack probative value.  Dr. Bash provides no support for this "fact" and has himself acknowledged that "the information is exclusively lay in nature."  Dr. Bash has stated that the blood supply was unsafe without providing any supporting evidence.  Importantly, the blood supply is not relevant because the Veteran did not receive a blood transfusion in service.  

With respect to the Veteran's lay statements regarding the origins of his hepatitis C, the Board finds that his lay statements lack credibility.  

The Veteran testified at a 2008 Board hearing (not held during the pendency of the current claim) that the facility where his circumcision was performed was drab or dark and "anyone could basically walk in and out of a room where the operations were taking place . . . . it was like an assembly line.  It was nothing like a hospital.  There was no bright lights or anything like that. . . . at the time after I was just up I was sent back to the barracks and given about 30 days rest I think is what it was." (See Board hearing transcript, page 3.)  

He testified at a 2013 DRO hearing that he was circumcised on the same table and with perhaps the same tools as the soldier who had been circumcised less than ten minutes before him, in a line of five or six others.  He further stated that he thinks he was treated in a MASH (Mobile Army Surgical Hospital) unit and they "had tents or something, I believe" but also stated that it was a building and perhaps an old barracks.  The Veteran has not provided any competent evidence that his circumcision would have been performed in a MASH unit given that the Korean War had ended more than two decades earlier and he was stationed at a permanent Army base. 

The Veteran also testified that it took him a long time to heal and that "by the time I got ready to heal, that situation with the ax murder incident was . . was about to take effect, so after that the captain asked me if. . . he said that I could get out of the military if I wanted to, and uh . . I thought , yeah,  . . .yeah, . . . but .. un . .like I say, the mind . . .well, it took a long time for me to heal."

He also testified that the military was "always short on supplies" and the treatment facility was "always dirty", "horrific", wasn't hygienic", and had sanitation which "was not good at all."  The Board finds that as the U.S. medical facility was in an area which was potentially subject to invasion, or attack, by North Korea, it seems highly unlikely that it would not maintain sanitary medical facilities with adequate supplies in case of receiving injured U.S. service members.

The STRs reflect that on July 7, 1976, the Veteran was admitted to the ward for elective circumcision.  He was discharged the next day and given a 21 day profile to abstain from physical training and field duty.  On July 12, 1976, the Veteran complained that his stitches were uncomfortable.  There was minor bleeding but no abnormal swelling.  There is no indication of an infection of any type or of further follow-up.

The Board takes notice that Veteran's reference to the "ax murder incident" refers to the August 1976 incident in which two U.S. military officers were killed and others injured by North Koreans at the DMZ during an incident involving the attempt by Joint Security Force (U.S. military and South Korean Army forces) to trim tree branches which were found to obscure views.  The two officers died after being beaten by the wooden end of axes.

The Board notes the following with regard to the Veteran's testimony:  First, the "ax murder" incident occurred on August 18, 1976 at the Joint Security Area (JSA) of Panmunjom, more than 10 miles from Camp Casey, where the Veteran was stationed.  It occurred after the Veteran was approved for expeditious discharge from the military due to his failure to meet acceptable standards of military service.  Thus, because the Veteran was already scheduled to be released from service expeditiously, the ax murders logically would have had no effect on his decision to get out of the military or his superior offering to let him out of service.  In essence, the Veteran has attempted to use, to bolster his claim, the honorable deaths of two soldiers which are totally unrelated to his Hepatitis C claim and the reason for his separation from service.  

Second, the Veteran indicated that he was offered the opportunity to get out of the military because his circumcision was taking a long time to heal.  The Veteran's circumcision was performed in July 1976.  By that time, he had already received a bar to reenlistment in June 1975, which had been recommended to remain in effect in November 1975.  Moreover, he was recommended for discharge due to his numerous insufficiencies and not due to his healing circumcision.  An August 1976 memorandum reflects his commander's statement, as follows:

I believe that if you are not granted an expeditious discharge, you will become an even more serious disciplinary problem within this unit. You have been afforded every opportunity to prove yourself as a soldier since being assigned to this unit and have failed miserably. I do not believe that you possess any potential for future rehabilitation due to your total disregard of authority and your hostility towards superiors. 

Thus, the Veteran's sworn testimony that his superior offered him the opportunity to get out of the military because of his circumcision lacks credibility as it is inconsistent with the contemporaneous evidence of record.  His service records reflect that, contrary to his statements that he was offered the opportunity to separate early due to his healing circumcision or due to the "ax murders," his discharge was initiated by his captain because the Veteran had a "poor attitude", a "lack of motivation", and a "lack of self-control".  

Third, as noted above, when the Veteran was assigned to Camp Casey, the Korean conflict had essentially been over for two decades, and he was undergoing elective surgery.  The Board finds that there is a lack of competent, credible evidence that U.S. Forces would have performed elective surgery on service members in a dirty, unsanitary, non-sterile facility where patients were operated on with bloody instruments and on bloody operating room tables.  While Dr. Bash has stated that the Veteran had "surgery in a foreign country and therefore JCAHO (Joint Commission for Accreditation of Hospital Organizations) guidelines concerning sterility are not/were likely not enforceable," by his own admission he has based his conclusions on the reports of the Veteran, which, as noted above, the Board finds are not credible.  There is otherwise nothing in the evidence of record to suggest that the military would not have abided by Department of the Army requirements or other U.S. guidelines for the care of service-members stationed at Camp Casey in peacetime.  It is highly unreasonable to believe that the U.S. military did not have, and did not follow, basic clinical standards for surgical procedures.  

The Board acknowledges that service in Korea is considered a "hardship" tour; however, merely because Korea did not have the same modern conveniences as the United States does not mean that the U.S. Army provided substandard levels of sanitation in its military facilities.

There is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties.  Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992). See also Mindenhall v. Brown, 7 Vet. App. 271 (1994).  In the present case, the Board finds that medical providers would have used basic sanitary procedures when performing surgery.  The Board finds that the allegation that the Veteran's circumcision was performed in a "dirty" environment and that he was exposed to blood from other soldiers lacks credibility and is afforded no probative value. 

In the context of the current claim, the Veteran contends that he only used IV drugs on a few occasions ("once in the military . . . maybe three or four times, probably for a total of one week" ) and always with a clean needle to avoid infection, that he did not snort cocaine using a straw, and that his drug use was "experimental" and "minor".  He contends that after service, he sold drugs for approximately six months but only used drugs three or four times.  However, in 1979 he reported to a treatment provider that he began using heroin in 1976 while in the service. He claims that he supported this habit for approximately five to six months, shooting up with heroin approximately three to four times a week.  

A March 2012 VA clinical record reflects that the Veteran reported that he has not used any drugs since 1986.  A May 2012 VA clinical record reflects that the Veteran reported he last used illicit drugs in 1980.  A June 2012 VA clinical record reflects that the Veteran admitted to having used marijuana, cocaine, and heroin but that he last used at age 22.  A November 2013 DBQ reflects that the Veteran used heroin, cocaine, and marijuana during and after military service.  

A January 2013 statement from Dr. G. P. states that the Veteran showed the doctor an article "where many servicemen were paid for har[d]ship duty which includes medical facility problems where possible unsanitary conditions existed."  Rather, according to the article "[s]everal factors are considered in determining whether a location qualified for the pay: climate, physical and social isolation, sanitation, disease, medical facilities, housing, food, recreation and community facilities, political violence, harassment, and crime.  The extra pay provides meaningful financial recognition to troops assigned in areas where living conditions are substantially below US standards."  The article does not state that sanitation issues relate to U.S. medical facilities.  

Dr. G. P. also stated that the Veteran had vaccines with air gun and had showed him some articles from early 1990s of possible contamination on air gun shots in Vietnam and patients possibly getting hepatitis C from that exposure.  Dr G. P. stated, in pertinent part, as follows:

for these reasons I would hope you would consider his claim for [the Veteran] acquiring Hepatitis C while he was in Korea. As you know main risk is people exposed to blood products or unsanitary conditions with possible bloody procedure done before 1992 for hepatitis C. I am sure you have more information than, I do on [the Veteran's] time of deployment then and conditions that existed at that time in the field hospital. 

In a March 2013 statement, Dr. G.P. reiterated his opinion that it is at least as likely as not that the Veteran's hepatitis is due to service.  Dr. G. P. also notes that the Veteran reported that he was on the boxing team while in Korea.  He stated that the "presenting evidence of unsanitary conditions, Jet Injectors for inoculations, and JCAHO guidelines concerning sterility at that time not in place, counterweighs prior BVA decision, obviously based on lack of supporting evidence as now provided."  The Board finds that this opinion lacks significant probative value because it is again based on the Veteran's unsupported and less than credible history.  Moreover, it fails to discuss the Veteran's post-service risk factors.  In addition, the Veteran's inoculation, if with an airgun, falls outside the time period for onset of Hepatitis as clinically found in 1996.

A July 2007 VA examination report reflects that the Veteran's more likely risk factors for hepatitis are those other than his circumcision.  Those risk factors were noted to be IV drug use, cocaine use, high risk sexual activity, being a boxer for 17 years with the last boxing being in 1982 and 1983 with risk factors of splashes of blood and saliva. The report also notes that the Veteran reported his first IV drug use was in California and that he doesn't remember using drugs in Korea.  

A March 2014 VA opinion with addendum states that it is less likely as not that the Veteran's hepatitis is causally related to service.  The records note, in pertinent part, as follows:

The 1996 hepatology notes mention the veteran's risk factors for contracting Hepatitis C very clearly. Risky behavior has been noted numerous times.  . . . . Therefore, based on thorough reviews of ALL records (and not just confining reviews to specific documents/contentions/statements), and when being unbiased and completely objective, when ALL risk factors and histories are taken into account, the veteran clearly has risk behavior issues that are likely portals of entry for Hepatitis C. Concerning the airgun injector theory, this has been found in the past to be a 'plausible' source, but not confirmed. The 'bloody' procedure prior to 1990 (which may have been the claimed circumcision) might also be of concern. Regardless, there are too many risk factors noted within his past history (in service and after service) that are clear for the contraction of Hepatitis C. Which of these is the true and actual culprit is not medically possible to determine, when ALL risk factors are taken into account. Concerning the airgun theory, one must clearly take into account the veteran's heroin use, regardless or not if he used 'clean equipment'. The heroin use possibly after [service] (noted by the hepatologist) also is of concern. Therefore, it would appear that the injector gun theory would certainly be much less of a risk factor, when weighed against much stronger risk factors of substance use. . . . Therefore, the claimed contention concerning airgun use cannot be answered and would be resorting to complete speculation. It is a plausible method, but not well supported, as other risk behaviors appear to be of more significance/likely portals of entry. 

An April 2016 VA opinion states as follows:

As one can clearly see, the veteran has a host of risk factors/behavior patterns for contracting communicable disease, to include sexual activities. However, attempting to determine WHICH caused his Hepatitis C is impossible. We do know that blood splashes and blood contact, IV drug use and nasal cocaine use, and sexual activities are risk factors. He appears to have many of these. But to state which caused his Hepatitis C is not possible, despite reviewing the articles/items he mentions, his stated histories and contentions and beliefs, and his behaviors/risk profiles during/after service. There are also cases of patients contracting Hepatitis C who have no risk factors or specific portals of entry. Concerning airgun injectors, this theory has been suggested, but never proven. Therefore, the airgun theory may have been determined to be plausible, but not confirmatory.  . . . Whether JCAH protocols were in place during the 'mass circumcision' he mentions is really of questionable validity, and would fall under the 'plausible' category. It is possible that these poor sanitary conditions were of question, but certainly not confirmatory, especially since there are so many other risk factors associated with so many other timeframes. Since he has SO many risk factors (during and after service), it is still impossible to state which was/were his portal(s) of entry for this disease process. There is also a chance Hepatitis C had no relationship to service, and could easily have been contracted after service.... these are all unknowns. Therefore, the number of risk factors throughout his lifetime place a specific etiology in question. Therefore, to summarize, it would be resorting to mere speculation to state his Hepatitis C is specifically due to or contracted in/incurred in service, due to reasoning and basis clearly noted above. Comments about aggravation cannot be applied, due to his abundant risk factor profiles. 

The Board finds that the STRs, which are contemporaneous to service, as well as statements made to treating providers that were not made in connection with a claim for benefits, such as his 1979 statements regarding drug use in service, are more credible than the Veteran's statements made years after service and which were made for compensation purposes. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511  (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.)

The Board has considered all the evidence of record, to include the lay statements, the STRs, the private and VA clinical records, the articles, and the numerous clinical opinions.  The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993).  There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). 
 
The Board finds that the most probative evidence of record is against a finding that the Veteran's hepatitis is related to service.  

Under 38 C.F.R. §  3.301(d), an injury or disease incurred in service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of abuse of drugs.  The definition of drug abuse in this regulation includes the use of illegal drugs.  The Veteran's statements that he used heroin in service meets the definition of drug abuse as defined above.  

The Board has considered that the Veteran numerous post service risk factors for hepatitis.  He used IV drugs, he has unprotected sexual relations to include with a heroin user, he boxed "a lot", and he was involved in a knife fight which caused bleeding in the 1970s post service.  Any suggestion by the Veteran that he used clean needles during and/or after service to avoid a disease lacks credibility as his statements regarding his risk factors in service and after service have been markedly inconsistent, as noted above.  The Board acknowledges a December 2015 gastroenterology consult record in which the Veteran denied ever having a cut or any blood exposure as a professional boxer; however, given the nature of boxing, the Board finds it less than credible that he was never exposed to blood or saliva in the more than a decade of post service professional boxing.  Moreover, the records do note a nonboxing fight involving an knife wound.

The Board has also considered the time-line offered when initially diagnosed after biopsy in 1996.  Dr. T.D. stated that the Veteran had hepatitis for up to 15 to 20 years.  Thus, at the very upper most, its onset date was 1976 and the onset was likely at any time in the five years between 1976 and 1981.  The Veteran was only in service for nine months of that five year period.  During those nine months, the clinical record does not reflect that he had any inoculations with jet air guns or credible evidence of blood exposure from others during surgery.  There is also no competent credible evidence that his clinical shots for any type of treatment were infected with Hepatitis, or that he was on a professional boxing team in Korea with exposure to Hepatitis.  During the subsequent four years post service, he had significant risk factors for Hepatitis.  As noted above, the only competent and credible evidence of an in-service risk factor during this period was his drug abuse, which, as stated above, cannot serve as the basis for a grant of service connection. 

With respect to his reported air gun inoculation(s), the record does show that the Veteran received at least one inoculation in service.  Again, the report that this inoculation was administered by air gun is based solely on the Veteran's statements, which, as noted above, have been shown to lack credibility.  Regardless, the preponderance of the evidence is against a finding that the Veteran has hepatitis C due to air gun inoculation.  With respect to the opinion by Dr. G.P., all that clinician reported was that the Veteran reported he had been vaccinated with an air gun and had some articles of "possible contamination on air gun shots in Vietnam."  As Dr. G.P. provided no independent, supporting rationale explaining the link between the Veteran's hepatitis C and the air gun injections, this opinion lacks probative value.  

Further, Dr. Bash, in his February 2017 iteration of his opinion in this matter, based his positive nexus opinion not only on the reportedly unsanitary circumcision procedure (which was the only support for his 2007 opinion) but also on the fact that the Veteran "was exposed to blood from the air gun vaccinations and the VA has conceded that air gun vaccinations are a known cause of Hepatitis C."  He refers to VBA Fast Letter 04-13.  However, while the Fast Letter notes that transmission of hepatitis C by air gun injection is "biologically plausible," there is a lack of any scientific evidence to document transmission of hepatitis C by air gun injector. See Veterans Benefits Administration (VBA), Fast Letter 04-13 (June 29, 2004) (indicating that there is no case report of hepatitis C transmitted by an air gun transmission).  As the Fast Letter is the sole support for Dr. Bash's positive opinion on the air gun injection theory, his rationale is inadequate.  Therefore, his opinion lacks probative value as it lacks an adequate rationale.  

Thus, the medical opinions which the Veteran argues support his claim lack probative weight.  The VA opinions, on the other hand, conclude that there is no way to provide an opinion as to the possibility that his hepatitis C is related to service as the Veteran has too many risk factors, including after service, to identify any possible relationship between any specific risk factor and the development of hepatitis C.  Given these facts, and the fact that VA has attempted several times to identify the specific etiology of the Veteran's hepatitis C, the Board finds that further development in this regard would be futile.  

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 

NME - Diabetes Mellitus

In a December 2008 decision, the Board denied the Veteran's claim for service connection for diabetes to on a direct basis, to include as due to herbicide exposure, and on a secondary basis due to Hepatitis C. 

The Board notes that military personnel records have been added to the claims file since the Board's 2008 denial.  However, at the time of the last final denial, it was not disputed that the Veteran served in Korea; thus, the personnel records, which do not provide any additional evidence which indicates that the Veteran had herbicide exposure, are not relevant to the issue on appeal. See 38 C.F.R. § 3.156(c).  The Veteran's claim will therefore be considered as to whether new and material evidence has been received.  

The Veteran contends that he has diabetes mellitus as a result of service.  He also maintains in the alternative, that his diabetes mellitus is due to his hepatitis C, or herbicide exposure in service while stationed in Korea. 

The evidence associated with the claims file at the time of the last final denial included the Veteran's STRs, confirmation of his service in Korea, his assertion that he was exposed to herbicides in Korea, VA and Department of Defense (DoD) regulations, findings, and procedures with regard to herbicides in Korea, the Veteran's diagnosis of diabetes in approximately 2006, the contentions that his diabetes is aggravated by his Hepatitis, and a clinical opinion that the Veteran's diabetes was likely due to herbicide exposure in Korea.

The Board finds, despite the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), that new and material evidence has not been received.  The Veteran is not in receipt of service connection for Hepatitis and there is no new and material evidence which indicates that his diabetes is related to service or a service-connected disability. 

Service connection - Gastrointestinal disability

The Veteran contends that he has a gastrointestinal disability on a direct incurrence basis, as secondary to his PTSD, and/or as due to medication used to treat a service-connected disability.  He described his condition as frequently having loose bowels after he eats and as GERD (gastroesophageal reflux disease).  The Board finds that the Veteran is less than credible as to any contention that the onset of his current symptoms is in service as his statements with respect to the onset of chronic problems have been inconsistent.  He has stated that he has had diarrhea since service but denied stomach complaints at separation and reported in 1985 that he had chest pain identified as possibly esophageal for only one year.  He has also stated that it is due to medication to treat his service-connected psychiatric disability.  Such medication was prescribed following service; therefore, this contention is inconsistent with having had symptoms since service.

The Veteran's STRs reflect one complaint of diarrhea and no complaints of GERD.  A November 1974 STR reflects that the Veteran complained of diarrhea.  Despite another 21 months of active service, no further complaints of diarrhea were made.  The STRs reflect that the Veteran made numerous other complaints (e.g. back, feet, sore throat, viral syndrome, lump in groin); thus, the Board finds that if the Veteran had chronic diarrhea it would have been reasonable for him to have sought treatment.  A March 1976 STR reflects that the Veteran complained of abdominal problems since the previous evening.  He complained of nausea and general malaise.  The impression was a viral syndrome.  The Veteran's 1976 report of medical history for separation purposes reflects that he denied frequent indigestion, stomach, liver, or intestinal trouble.  The Board finds that if the Veteran had chronic complaints at that time, it would have been reasonable for him to have noted such rather than deny such.

A post service 1977 VA medical certificate and history reflects that the Veteran was seen for bacterial pharyngitis, and at that time, he denied diarrhea.  

A 1985 VA medical certificate record reflects that the Veteran reported having a dull pain in the center of his chest with heavy exercise and that he gets "similar pain after eating ribs but this is rare."  The assessment was angina vs. esophageal disorder.  The Veteran reported that he had noted the chest pain for approximately one year, which would be an onset date of approximately 1984, which is more than seven years after separation from service.  The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

The Veteran was initially diagnosed with Hepatitis C in 1996, at that time, when seeking treatment with a gastrointestinal provider, he stated that his only symptom was fatigue.  The Board notes that the Veteran has now been treated for Hepatitis C for more than twenty years and yet, the records are negative for complaints of chronic diarrhea and note normal bowel sounds (ie. 1977, 1997, 1998, 1999 clinical records) for more than 15 years. 

A 1999 Alegant at Applewood record reflects that the Veteran reported that he gets bloating at times now and in the past.  It is also noted that his only other symptom was fatigue.  A May 2003 private record from Alegant at Applewood reflects that the Veteran was seen for bloating and weight gain.  It was noted that bowel movements were normal.  It was noted that he had no GI symptoms since he had been on Pepcid.  This reference to Pepcid is more a decade after separation from service.  The Board notes that hepatitis is treated by a gastroenterologist and that diarrhea and GERD are diseases which come under the purview of a gastroenterologist; thus, it seems that if the Veteran had chronic complaints of such, it would have been entirely reasonable for him to have discussed this with his providers and for it to have been noted in the records.  

A November 2003 record reflects that the Veteran reported that he occasionally has had GI upset but not regularly.  He was to use Prilosec.  A January 2012 VA record reflects that the Veteran sought to establish care at VA.  At that time, he denied having chest pain and/or diarrhea.

In sum, the Board finds that there is no competent credible evidence of chronic diarrhea, GERD, or intestinal problems in service or since service and that any statement by the Veteran as to such is less than credible given the record as a whole.  There is also no competent credible evidence of record that the Veteran's one incident of diarrhea in service in 1974 is related to any irritable bowel or chronic diarrhea now.     

A February 2014 VA record reflects that the Veteran complained of diarrhea and other symptoms with a duration of two days.  A September 2014 VA record reflects that diarrhea may be a side effect of metformin taken for nonservice-connected diabetes.  A September 2015 note reflects a complaint of diverticulitis but a denial of diarrhea.

A July 2015 VA examination report reflects that the Veteran reported that he had irritable bowel syndrome diagnosed many years ago.  The Veteran reported that he had "longstanding intermittent diarrhea since Korea."  The examiner noted that there was an isolated entry in service.  The clinician could not provide an opinion without resorting to mere speculation because of a lack of clinical records.   

Associated with the claims file is an article "Gastro-oesophageal Reflux Disease and Psychological Comorbidity"; however, the Veteran has not been diagnosed with GERD.  A November 2015 VAX opinion states, in pertinent part, as follows:

When [the Veteran] was seen for C+P purposes this summer, a labeling of IBS was provided for C+P purposes, based on his symptoms.  He does not have IBS diagnosed anywhere else in any of his CPRS records. What he DOES have diagnosed is diverticulitis, and a colonoscopy done some time ago.  His main complaint was ongoing diarrhea. Therefore, for the purposes of the C+P process, a diagnosis of IBS was placed, only for C+P needs.  The gentleman has a host of medical and mental health diagnoses. These include hepatitis C, previous substance use, DMII, HTN, PTSD, and others. His main GI complaint is longstanding diarrhea, and the exact cause of this is essentially unknown, and can be contributed to by many mental/medical comorbidities.  To specifically define which is directly causative cannot be found, as many can interfere with bowel function. Having diverticulitis recently confounds this. The hepatitis C, many times, can present with an abundance of physical complaints. Concerning irritable bowels and their associated symptoms, there are numerous causations and risk factors for developing this. There are also cases where no specific risk factor/causation can be found. The veteran has numerous medical and mental health diagnoses, which make causation of bowel complaints practically impossible to separate out. Even though mental health concerns can play into bowel motility (when exacerbated), with so many other contributing factors, these cannot be separated out as to SPECIFIC causation. When reviewing CPRS records, it does not appear that longstanding diarrheal complaints are mentioned, other than the somewhat recent diverticulitis concerns around 2011, likely due to diet (strawberries and popcorn). Therefore, it would be resorting to complete speculation to state his GI condition/irritable bowels was specifically caused by PTSD, as he has numerous medical/health issues that can also play into bowel motility . Reasoning and basis as described. Concerning true aggravation (of the irritable bowels by the PTSD), this appears LESS likely, as reviews of records do not support the succession of events that would show TRUE worsening of bowel transit time by mental health concerns. 

The Board has considered that the Veteran is competent to state that he has long-standing diarrhea, and that the examiner stated that the exact cause is essentially unknown. However, the Board finds that the statement as to long-standing diarrhea is unsupported by the clinical evidence and less than credible.  The Board has also considered the opinion that irritable bowels are less likely as not aggravated by the Veteran's PTSD because the records do not sure a true worsening of bowels during mental health concerns.  This same rationale supports a finding that the Veteran does not have IBS due to PTSD. 

In sum, there is no competent credible evidence that the Veteran has a gastrointestinal disability which is causally related to, or aggravated by, service or a service-connected disability.  The Veteran is not competent to provide such an etiology as such requires medical expertise, especially in a case like this, as noted by the VA examiner, where the "veteran has numerous medical and mental health diagnoses, which make causation of bowel complaints practically impossible to separate out."

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 


ORDER

Entitlement to a rating in excess of 10 percent for PTSD prior to July 25, 2013, is denied.

Entitlement to a rating of 30 percent for PTSD, and no higher, from July 25, 2013, is granted, subject to the laws and regulations governing the payment of VA compensation. 

As new and material evidence has not been received to reopen the claim of entitlement to service connection for diabetes mellitus, the appeal is denied.
 
Service connection for hepatitis C is denied.

Service connection for a gastrointestinal disability (claimed as complaints of diarrhea and gastroesophageal reflux disease (GERD)), to include as secondary to service-connected posttraumatic stress disorder (PTSD) is denied.


REMAND

Hypertension

The Veteran contends that he has hypertension, to include as secondary to his service-connected PTSD. 

The Veteran's STRs do not show a finding of hypertension in service.  His August 1976 report of medical examination for separation purposes reflects that his blood pressure was 116/82.  

The earliest clinical evidence of hypertension is approximately two decades after separation from service.  October and November 1997 records reflect that the Veteran's hypertension remains well-controlled on Norvasc 5 mg a day and he is on no medications other than that for his hepatitis.

The claims file includes a statement from Dr. G. P. of Alegent and Creighton Clinic.  The statement reflects that the Veteran's PTSD with depression and anxiety "will cause the hypertension and high blood pressure I am treating [the Veteran].  The Board finds that this opinion is insufficient upon which to base service connection because it fails to provide an adequate rationale, fails to discuss the onset of the Veteran's hypertension, and fails to discuss the Veteran's noted mild or subthreshold symptoms of PTSD at times. 

The claims file also includes a VA opinion from May 2014 which notes that it is less likely as not aggravated beyond its natural progression by his service-connected PTSD.  The examiner stated, in pertinent part, as follows:

The veteran's current hypertension is controlled with just one anti-hypertensive medication. Even if the hypertension were not controlled, the veteran has multiple risk factors that would contribute to uncontrolled hypertension such as his history of smoking, his obesity, and his race. There is no evidence PTSD aggravates hypertension. 

The Board is unclear if the clinician's statement that "there is no evidence PTSD aggravates hypertension" is in reference to PTSD and hypertension in general or is with regard to this specific Veteran.

The claims file includes a copy of a statement by Dr. T. Insel that hypertension is more likely to occur in individuals with PTSD than those without the disorder.  In addition, VA has recognized that some studies have found an association between PTSD and poor cardiovascular health. (See http://www.research.va.gov/currents/spring2015-8.cfm)

Based on the foregoing, the Board finds that a supplemental clinical opinion, which relates more to a discussion of this particular Veteran, may be useful in adjudicating the Veteran's claim.

The clinician should consider the pertinent evidence of record to include the Veteran's levels of hypertension and the severity of his PTSD symptoms.  (The Board notes that the Veteran has been on hypertensive medication since at least 1997.  An October 1999 Nebraska Medical Center record reflects that the Veteran's blood pressure was 148/90.  It was noted that his "blood pressures are kind of borderline, but not too high."  At the time, the Veteran was on Zoloft and medication for his hepatitis.  A January 1999 Nebraska Medical Center record reflects that the Veteran was on Zoloft but "only takes that maybe three or four times a week at most", and that he was restarted on Norvasc.  In addition, the clinician should consider that in 2012 and early 2013, the Veteran's PTSD symptoms were noted to be sub-threshold, mild, or not objectively observed.  

Skin Disability

In a February 2015 VA Form 21-4138, the Veteran filed a claim for service connection for a skin disability, to "include possibly chloracne as a direct service-connected disability, and also possibly due to exposure to herbicides to include Agent Orange.  My body tends to welts up if I scratch my skin."  

The Veteran's STRs reflect a November 1974 notation that he complained that any blows or hard contact to the skin causes welts to rise.  It was noted that he "says that he has been this way nearly all his life."  The assessment was dermography.  The STR does not note whether there were any actual visibly seen symptoms on examination.

The Veteran's August 1976 report of medical history for separation purposes reflects that he denied ever having had a skin disease.  His examination reflects that his skin was normal upon clinical examination. 

Post service, a July 1978 VA medical certificate and history record reflects that the Veteran had a rash on his back and stomach for three days.  Upon examination, it was noted to be "a discrete raised non-erythematous plaques over back and chest. Non-pruritic. . probably hypersensitivity to Darvon."

A 1997 record reflects that the Veteran complained of a rash, which was noted to be "possibly secondary to his interferon medication" for his hepatitis C.

A 1998 record reflects that the Veteran had a "little bit of a rash that looks like it could be fungal around his neck.  He had this before and was treated with Lamisil and it cleared up."

A May 2002 Alegant at Applewood record reflects that the Veteran had a rash.  It was noted "he gets this occasionally.  It could be from Interferon but he really had that on and off before. he thinks a cream helped."

VA clinical records reflect diagnoses of chronic tinea pedis and unguium (See December 2013).  A January 2016 VA record reflects complaints of a rash on the palm of one hand.  A February 2016 VA record reflects that the Veteran may have had a skin rash related to ribavirin/Haravoni treatment.  Records also show a diagnosis of dermatophytosis of the foot. 

A July 2015 VA examination report reflects that the Veteran has a diagnosis of dermographism.  The examiner stated that it would be resorting to speculation to state whether any true chloracne is present (as this case is not typical of others we see), and the dermographism, reported in 1974, was lifelong, the vet disagrees with this. Therefore, this would also be resorting to speculation. "

Accordingly, the case is REMANDED for the following action:

1. Please obtain any updated VA and non-VA treatment records.

2. Please obtain a supplemental clinical opinion which addresses:

a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's PTSD, to include medication used to treat such, caused his hypertension? And
b. Is it at least as likely as not (50 percent probability or greater) that the Veteran's PTSD, to include medication used to treat such, worsened (any increase in disability) his hypertension.  

The clinician should consider the pertinent evidence of record to include: a.) 1997 - 1999 records which reflect that the Veteran was on hypertension medication at times; b.) the opinion of Dr. G. P. of Alegent and Creighton Clinic that the Veteran's PTSD with depression and anxiety causes hypertension; c.) the severity of the Veteran's PTSD symptoms, which have noted to be subthreshold, mild, and not objectively seen at times (e.g. 2012 and early 2013); d.) the copy of a statement by Dr. T. Insel that hypertension is more likely to occur in individuals with PTSD than those without the disorder; e.) VA's recognition that some studies have found an association between PTSD and poor cardiovascular health. (See http://www.research.va.gov/currents/spring2015-8.cfm); and f.) the Veteran's hepatitis C. 

3. Please obtain a supplemental clinical opinion as to whether it is as likely as not that the Veteran has a skin disability causally related to service or a service-connected disability.  
a. If the Veteran's dermatographism is congenital, the examiner must provide an opinion as to whether it is (i) a condition that is capable of improvement or deterioration or (ii) a condition that is not capable of improvement or deterioration. If the physician concludes that the dermatographism is a condition that is capable of improvement or deterioration, then by operation of current law the condition is deemed a congenital disease. If the physician concludes that the dermatographism is a condition that is not capable of improvement or deterioration, then by operation of current law the condition is deemed a congenital defect.
b. If the Veteran has dermatographism that is a congenital defect, is it at least as likely as not (i.e., a 50% or greater probability) that the Veteran had a superimposed disease or injury in service?
c. If the Veteran has dermatographism that is a congenital disease, is it at least as likely as not (i.e., a 50% or greater probability) that the pre-existing disability was aggravated (i.e. underwent a permanent worsening of the underlying condition) in service?
d. If the dermatographism is not either a congenital disease or defect, opine as to whether it is absolutely clear (obvious or manifest or undebatable) that the dermatographism existed prior to entrance to active duty.

The clinician should consider and discuss as necessary a.) November 1974 assessment of dermography; b.) the Veteran's August 1976 report of medical history for separation purposes in which he denied ever having had a skin disease; his examination reflects that his skin was normal upon clinical examination; and c.) the July 2015 VA examination report. 

4.  Following completion of the above, readjudicate the issues of entitlement to service connection for hypertension and/or a skin disability. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the 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).




______________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs