Citation Nr: 1808341 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-04 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for an enlarged prostate, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicide agents. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic bronchitis, to include as due to exposure to herbicide agents. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss. 5. Entitlement to a compensable evaluation for residuals of a boil on the buttock. 6. Entitlement to an initial evaluation in excess of 70 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) with depressive neurosis. 7. Entitlement to an effective date earlier than August 6, 2008, for the award of a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). 8. Entitlement to an effective date earlier than August 6, 2008, for the award of dependents' educational assistance (DEA) under 38 U.S.C. Chapter 35. 9. Entitlement to an effective date earlier than August 6, 2008, for the award of service connection for an acquired psychiatric disability, to include PTSD with depressive neurosis. REPRESENTATION Veteran represented by: Michael Kelley, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to December 1969. This appeal is before the Board of Veterans' Appeals (Board) from April 2009 and June 2009 rating decisions of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ). However, the transcript of this hearing is unavailable. As such, the Veteran testified before the undersigned VLJ at a November 2017 hearing in Boston, Massachusetts, and a transcript of this hearing is of record. The VLJ who conducted the November 2016 hearing did not participate in this decision. When a second hearing is held because the official transcript of the original hearing is lost or destroyed and the recording upon which it was based is no longer available, the original hearing is treated as if it did not exist, and only the VLJ who presided over the second hearing will decide the claim. See 38 C.F.R. § 20.717; see also Chairman's Memorandum 01-11-10. In August 2017, the Board remanded the Veteran's appeal with instruction to provide him with a second hearing as discussed above, which occurred in November 2017. The Board is therefore satisfied that the instructions in its remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to an earlier effective date for TDIU, DEA, and the award of service connection for an acquired psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's enlarged prostate is not due to exposure to herbicide agents or otherwise due to service. 2. The Veteran's peripheral neuropathy is not due to exposure to herbicide agents or otherwise due to service. 3. Evidence received since a final December 1997 rating decision denying service connection for chronic bronchitis is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial. 4. Evidence received since a final October 1982 Board decision denying service connection for hearing loss is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial. 5. At his November 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issue of entitlement to a compensable evaluation for residuals of a boil on the buttock. 6. The Veteran did not intend to appeal the issue of entitlement to an initial evaluation in excess of 70 percent for an acquired psychiatric disability, to include PTSD with depressive neurosis. CONCLUSIONS OF LAW 1. The criteria for service connection for an enlarged prostate, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for peripheral neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. Evidence received since a final December 1997 rating decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for chronic bronchitis, to include as due to exposure to herbicide agents, is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). 4. Evidence received since a final October 1982 Board decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for hearing loss is therefore not warranted. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1104 (2017). 5. The criteria for withdrawal of the appeal for the issue of entitlement to a compensable evaluation for residuals of a boil on the buttock have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for dismissal of the appeal for the issue of entitlement to an initial evaluation in excess of 70 percent for an acquired psychiatric disability, to include PTSD with depressive neurosis, have been met. 38 U.S.C. § 7105(d)(5) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any specific issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Enlarged Prostate The Veteran claims service connection for an enlarged prostate due to exposure to herbicide agents. The Board notes that an enlarged prostate is not among the disabilities for which presumptive service connection is available based on exposure to herbicide agents in Vietnam. 38 C.F.R. § 3.309(e). Absent such a presumption, the Veteran may establish service connection on a direct basis if the evidence shows that his current enlarged prostate was, in fact, caused by exposure to herbicide agents or some other incident of service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records do not reflect any symptoms of or treatment for an enlarged prostate. VA treatment records reflect that in June 1999, the Veteran reported difficulty with his urine stream. His physician noted possible benign prostatic hyperplasia given the generous size of his prostate. In May 2001 he consulted a urologist after reporting lower urinary tract symptoms, primarily hesitancy. Examination showed an enlarged prostate. His medication was adjusted accordingly. At a September 2001 follow-up, he reported he was free of significant lower urinary tract symptoms. His prostate was 35 grams, symmetrical, and benign. He continued medication for benign prostatic hyperplasia. A May 2006 prostate biopsy was unremarkable and benign. In August 2007 it was noted that he presented with an enlarged prostate. At a February 2008 urology consultation, examination revealed an enlarged prostate, consistent with benign prostatic hyperplasia. He continued medication for benign prostatic hyperplasia thereafter. In his October 2008 claim, the Veteran reported that his prostate had been enlarged for years. He stated that he never had any problems with his prostate prior to Vietnam and that his doctors had asked if he had been exposed to Agent Orange. In his October 2009 notice of disagreement, the Veteran attributed his prostate problems to Agent Orange. VA treatment records reflect that at an August 2014 urology consultation the Veteran was noted to have a significantly elevated prostate-specific antigen (PSA), but prostate had no palpable abnormality on digital rectal examination. He also reported lower urinary tract symptoms and was found to exhibit post-voiding residual. A February 2016 prostate biopsy was benign. At his November 2017 hearing, the Veteran reported that his enlarged prostate was a possible precursor to prostate cancer. The Board finds that the evidence weighs against a finding that the Veteran's enlarged prostate is related to exposure to herbicide agents or to service. Benign prostatic hyperplasia is not among the disabilities for which presumptive service connection is available. 38 C.F.R. § 3.309(e). Absent such a presumption, the only evidence that the disability is related to exposure to herbicide agents is the Veteran's own statements. The only basis he has provided for his belief that his disability is related to service is that his physicians asked him if he had been exposed to Agent Orange. Merely being asked if he was exposed to Agent Orange, however, does not indicate that Agent Orange is responsible for any specific disability, and VA treatment records do not make reference to any possibility of a causal relationship between herbicide agents and the Veteran's disability. The Board thus does not find the Veteran's statements to be probative, as he has not demonstrated a basis for knowledge of a relationship between his disability and exposure to herbicide agents. Furthermore, there is no evidence that the disability arose in service or is related to service by means other than exposure to herbicide agents. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's enlarged prostate is related to exposure to herbicide agents or to service, and service connection is therefore denied. Peripheral Neuropathy The Veteran claims service connection for peripheral neuropathy due to exposure to herbicide agents. The Board notes that presumptive service connection is available based on exposure to herbicide agents in Vietnam is available for early onset peripheral neuropathy only. 38 C.F.R. § 3.309(e). As such, the presumption only applies if peripheral neuropathy manifested to a degree of 10 percent or more within one year of the last date of presumptive exposure. 38 C.F.R. § 3.307(a)(6)(ii). Nevertheless, absent such a presumption, the Veteran may establish service connection on a direct basis if the evidence shows that his current peripheral neuropathy was, in fact, caused by exposure to herbicide agents or some other incident of service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records do not reflect any symptoms of or treatment for peripheral neuropathy. Private treatment records reflect that in January 1980 the Veteran was admitted to the hospital for back pain and chest pain. A neurologist felt that his pain was muscular in nature with no evidence of radicular symptoms or neurologic involvement. In February 1980, he reported that he had had an acute onset of low back pain radiating into the right leg three years prior. He had undergone surgery and the pain had been relieved until 3 months prior to this visit. A March 1980 electromyography study (EMG) of the right leg muscles showed acute and chronic denervation in the right L5 territory. He was discharged with a diagnosis of radiculopathy. In April 1980 he underwent a right laminectomy with decompression of the L5 nerve root and disc excision and bilateral lateral fusion at L4-5. In May 1980 he reported pain down his right leg with marked weakness including foot drop. Examination showed a very confusing pattern of sensation to pinprick in that he appeared to have a stocking distribution of dense insensibility to pain up to the level of the knee in the right leg. There was no definite nerve root distribution. He had marked proprioceptive loss in the right foot, and it was noted that proprioception in the left foot was also not as good as it should have been, although pinprick was intact. He was diagnosed with radiculopathy. VA treatment records reflect that in December 2001 the Veteran reported 6-8 months of intermittent numbness and tingling in the upper left thigh. An EMG was ordered but he failed to make an appointment for it. An EMG was ordered again in March 2002 but no appointment was made. A January 2003 EMG showed a mild generalized peripheral polyneuropathy with no electrophysiological evidence of active lumbosacral radiculopathy. In April 2003 he reported that symptoms were improved by medication. In June 2004, he reported intermittent numbness in his left hand, specifically in his third, fourth, and fifth fingers. In March 2005 he reported bilateral paresthesia in the hands, mostly in the fingers. An EMG showed severe bilateral carpal tunnel syndrome worse on the right, severe right ulnar neuropathy, and moderate peripheral neuropathy. In June 2005 he reported that his medication was no longer helping the numbness in his thigh. In November 2005 he described numbness coming from his lower back and moving down the back of his legs to his calves. In December 2007, his neurologist noted that his symptoms sounded radicular and were likely secondary to his lower back pathology. In January 2008 he reported that he continued to have symptoms of neuropathy in both legs. In March 2008 he stated that his back pain radiated down his right leg and he had numbness in his anterior left thigh. In an August 2008 statement, the Veteran reported that he has had neuropathies for years but only recently learned the diagnosis. In his October 2008 claim, he reported that he had current nerve damage. He stated that he never had neuropathy prior to Vietnam and that his doctors had asked if he had been exposed to Agent Orange. VA treatment records reflect that at a September 2008 neurology consultation the Veteran was treated for radicular pain and numbness in the legs, arm tingling worse in the hands, and polyneuropathy. An EMG showed severe bilateral carpal tunnel syndrome significantly worse in the left, and a mild right ulnar neuropathy localized to the cubital tunnel. A mild underlying peripheral neuropathy was not excluded. At a November 2008 orthopedic consultation he reported a history of slightly progressive numbness and paresthesia in the bilateral hands with the left recently becoming worse than the right. He was diagnosed with paresthesia of unclear etiology, not overtly reproducible to carpal tunnel on clinical examination, which instead suggested a possible cervical spine etiology for neural compression or stenosis. At a January 2009 neurology consultation, however, his neurologist found that examination was more suggestive of carpal tunnel syndrome. In March 2009, based on an MRI, he was diagnosed with carpal tunnel syndrome with a superimposed cervical radiculopathy. His neurologist suspected that the bulk of symptoms were due to carpal tunnel syndrome. An EMG confirmed severe carpal tunnel syndrome with no electrodiagnostic evidence of radiculopathy. A May 2009 orthopedic consultation recommended carpal tunnel release in the left hand. He reported that symptoms had been present for about 4 years. In July 2009, he again reported peripheral neuropathy in his lower extremities. His medication was adjusted. In September 2009, he underwent carpal tunnel release. VA treatment records further reflect that in October 2009 the Veteran was diagnosed with diabetes mellitus. In November 2009 his neurologist noted that although he had prior evidence of neuropathy on EMGs, the clinical description of episodic and sudden onset of symptoms in the lower extremities is unusual for neuropathy. Lumbar spine MRIs showed only mild central stenosis which would be unlikely to cause true neurogenic claudication. In April 2010 he was diagnosed with chronic low back pain with mostly left leg radiculopathy L4-5 nerve root distribution, status post lumbar laminectomy. In September 2010, he reported that his steroid injections had provided significant relief. In February 2014, he reported that his peripheral neuropathy was mildly symptomatic. By February 2015 he had ceased medication, though it remained mildly symptomatic. In July 2016, he reported falls and imbalance since a prior surgery which he attributed to weakness and sensations of heaviness in his limbs. An EMG showed mild length-depended axonal mixed sensorimotor polyneuropathy and very mild active denervation changes in one L5 muscle, consistent with mild right L5 nerve root irritation. In October 2016 his neurologist noted that the peripheral neuropathy noted on the July 2016 EMG was likely diabetic in nature. In January 2017 his neurologist noted that his imbalance issues had been attributed to a vitamin B12 deficiency. Current pain was attributed to lumbar stenosis. At his November 2017 hearing, the Veteran reported that he did not know what was causing his neuropathies. He stated that his doctors did not know if it was diabetes or something else. The Board finds that the evidence weighs against a finding that the Veteran's peripheral neuropathy is related to exposure to herbicide agents or to service. While early-onset peripheral neuropathy is among the disabilities for which presumptive service connection is available, 38 C.F.R. § 3.309(e), such a presumption only applies if neuropathy manifests within one year of presumptive exposure. There is no evidence of any neuropathy prior to 1980. Absent such a presumption, the only evidence that the disability is related to exposure to herbicide agents is the Veteran's own statements. The only basis he has provided for his belief that his disability is related to service is that his physicians asked him if he had been exposed to Agent Orange. Merely being asked if he was exposed to Agent Orange, however, does not indicate that Agent Orange is responsible for any specific disability, and VA treatment records do not make reference to any possibility of a causal relationship between herbicide agents and the Veteran's disability. While treatment records reflect disagreement as to the various suspected causes of his reported symptoms, herbicides are never suggested. The Board thus does not find the Veteran's statements to be probative, as he has not demonstrated a basis for knowledge of a relationship between his disability and exposure to herbicide agents. Indeed, at his November 2017 hearing, the Veteran stated that he did not know what was causing his neuropathy. Furthermore, there is no evidence that the disability arose in service or is related to service by means other than exposure to herbicide agents. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's peripheral neuropathy is related to exposure to herbicide agents or to service, and service connection is therefore denied. New and Material Evidence VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Chronic Bronchitis The Veteran seeks to reopen his claim for service connection for chronic bronchitis. The Board notes that chronic bronchitis, chronic obstructive pulmonary disease (COPD), and emphysema are not among the disabilities for which presumptive service connection is available based on exposure to herbicide agents in Vietnam. 38 C.F.R. § 3.309(e). Absent such a presumption, the Veteran may establish service connection on a direct basis if the evidence shows that his current chronic bronchitis was, in fact, caused by exposure to herbicide agents or some other incident of service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's claim was originally denied in a March 1997 rating decision based on a finding of no relationship between chronic bronchitis and service or exposure to herbicide agents. He filed a timely appeal, and new evidence was adjudicated by the RO in a December 1997 statement of the case and a March 1998 supplemental statement of the case. In an October 2000 statement he withdrew his appeal before it was decided by the Board. The March 1997 rating decision therefore became final. The Board notes that evidence submitted after the March 1997 rating decision but considered in the December 1997 statement of the case or the March 1998 supplemental statement of the case was considered by VA decision makers and therefore cannot be considered new under 38 C.F.R. § 3.156(a). Evidence submitted since the March 1997 rating decision includes private and VA treatment records for bronchitis and other lung disabilities, including COPD and emphysema. None of these records make reference to whether or not the Veteran's disabilities are related to service or to exposure to herbicide agents. To the extent that etiology was discussed, such disabilities were regularly attributed to smoking cigarettes, and he was repeatedly urged to quit. A July 2008 pulmonary consultation noted allergies and denial of asbestos exposure but made no reference to herbicide agents. In his October 2008 claim, the Veteran reported that his bronchitis and COPD had developed after service. In a May 2009 statement, the Veteran's VA social worker stated that the Veteran's PTSD caused him to live in his van, which had affected his health through chronic bronchitis. At his November 2017 hearing, the Veteran reported that he had been diagnosed with COPD years prior. He estimated it was 10 or 12 years prior. He reported that he was first treated for breathing problems in 1975 or 1980. He stated that he was referred for a breathing test in service due to shortness of breath. The Board finds that the additional evidence does not address the unestablished fact of a nexus between chronic bronchitis and service or exposure to herbicide agents. None of the new medical records addressing a disability of the lungs makes any reference to herbicide agents or any other relationship to service. Furthermore, the Veteran's statements which indicate that he did not have chronic bronchitis prior to service and that it is related to exposure to herbicide agents are reiterative of his statements from his original claim. Accordingly, the criteria for reopening entitlement to service connection for chronic bronchitis, to include as due to exposure to herbicide agents, are not met. Hearing Loss The Veteran seeks to reopen his claim for hearing loss. The Veteran's claim was originally denied in an April 1981 rating decision. He filed a timely appeal, and the claim was denied in an October 1982 Board decision based on a finding that pre-existing hearing loss had not been aggravated during service. This decision was not reversed on appeal and thus remains valid and final. 38 U.S.C. § 7104(a), (b). Evidence submitted since the October 1982 Board decision includes private and VA treatment records for hearing loss. None of these records make reference to whether or not the Veteran's hearing loss had been aggravated by service, with the exception reiterations of the Veteran's reports that he has experienced decreased hearing since noise exposure Vietnam. In his October 2008 claim, the Veteran reported that he could offer no new and material evidence except that he had slight hearing loss in his left ear prior to service, that he was around gunfire, explosives, and aircraft while serving in Vietnam, and that he was currently deaf in his left ear. At his November 2017 hearing, the Veteran reported that his problems with his hearing were due to exposure to noise as a door gunner in Vietnam. He denied exposure to noise after separation from service. The Board finds that the additional evidence does not address the unestablished fact of aggravation of hearing loss which pre-existed service. None of the new medical records addressing hearing loss makes any reference to service apart from restating the Veteran's reports that he was exposed to noise in service. Furthermore, the Veteran's statements which indicate that he was exposed to noise in service are reiterative of his statements from his original claim. Accordingly, the criteria for reopening entitlement to service connection for hearing loss are not met. Increased Rating Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a veteran or by his or her authorized representative. Id. At his November 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to a compensable evaluation for residuals of a boil on the buttock. As to entitlement to an evaluation in excess of 70 percent for an acquired psychiatric disability, his representative explained that he had never intended to appeal the 70 percent rating but rather the effective date of the award of service connection. Because no statement of the case has been issued regarding an earlier effective date, this issue is addressed in the remand portion of this opinion. No contention of a higher rating was made. As to these issues there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. [CONTINUED ON THE NEXT PAGE] ORDER Service connection for an enlarged prostate, to include as due to exposure to herbicide agents, is denied. Service connection for peripheral neuropathy, to include as due to exposure to herbicide agents, is denied. New and material evidence having not been received, the appeal to reopen the claim for service connection for chronic bronchitis, to include as due to exposure to herbicide agents, is denied. New and material evidence having not been received, the appeal to reopen the claim for service connection for hearing loss is denied. The appeal as to the issue of entitlement to a compensable evaluation for residuals of a boil on the buttock has been withdrawn and is dismissed. The appeal on the issue of entitlement to an initial evaluation in excess of 70 percent for an acquired psychiatric disability, to include PTSD with depressive neurosis, is dismissed. REMAND In an April 2009 rating decision, the Veteran was awarded service connection for an acquired psychiatric disability effective August 6, 2008. An October 2009 letter to the president of the United States was construed by VA as a notice of disagreement as to all other issues addressed in this decision. The bulk of the letter, however, focuses on VA's failure to assign an effective date based on his prior 1981 claim for service connection for a nervous condition. He specifically tied his request for an earlier effective date to his mental health. While the February 2012 statement of the case addressed the issues of an earlier effective date for TDIU and DEA, no statement of the case was issued with respect to an increased rating for an acquired psychiatric disability. At his November 2017 hearing, the Veteran's representative explained that the intention was to appeal the effective date for an acquired psychiatric disability. The Board therefore finds that the Veteran's disagreement has not been satisfied. The receipt of the notice of disagreement vests jurisdiction with the Board for purposes of ensuring that a statement of the case is prepared on this issue. Where a notice of disagreement is filed, but a statement of the case has not been issued, the Board must remand the claim to direct that a statement of the case be issued. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that it does not have jurisdiction to address any claim the Veteran or his representative articulated at his hearing that a prior denial for service connection for an acquired psychiatric disability should be vacated based on clear and unmistakable error. Such a claim must be made with specificity to the RO and considered by the RO in the first instance before it can be addressed by the Board. Finally, the Board notes that as the issues of entitlement to earlier effective dates for a TDIU and DEA benefits are inextricably intertwined with the Veteran's claim for an earlier effective date for his PTSD award, they too must be remanded. See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). Accordingly, the case is REMANDED for the following action: 1. Provide a statement of the case to the Veteran and his representative regarding the issue of entitlement to an effective date earlier than August 6, 2008, for an award of service connection for an acquired psychiatric disorder, to include PTSD with depressive neurosis. If, and only if, the Veteran perfects the appeal to this issue, it must be returned to the Board for appellate review. 2. After completing the above, and any other development deemed necessary, readjudicate the appeal as to the issues of entitlement to earlier effective dates for a TDIU and DEA benefits. If the benefits sought remain denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs