Citation Nr: 1806265 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-02 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for gastroesophageal reflux disease (GERD), claimed as due to exposure to herbicides. 2. Entitlement to service connection for GERD, claimed as due to exposure to herbicides. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a skin condition, claimed as due to exposure to herbicides. 4. Entitlement to service connection for a liver condition, claimed as hepatitis C & B. 5. Entitlement to service connection for an eye condition, claimed as due to exposure to herbicides. 6. Entitlement to service connection for hypertension, claimed as due to exposure to herbicides. 7. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 8. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran had active service from January 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which appeal reopened and denied a claim for service connection for a psychiatric disorder claim on the merits, denied a claim that new and material evidence had been presented to reopen a claim for service connection for GERD, continued a previous denial for a skin condition, denied service connection for a liver condition, an eye condition, and tinnitus, and denied entitlement to TDIU. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in North Little Rock, Arkansas. The Veteran testified at a hearing in support of his claims in November 2010 before the undersigned. A copy of the transcript has been associated with the claims file. In May 2012, the Board reopened the claim for an acquired psychiatric disorder, to include PTSD, and remanded all of the claims for additional development. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed decision, dated in August 1994, the RO denied a claim for service connection for gastritis. 2. The evidence received since the RO's August 1994 decision, which denied a claim of entitlement to service connection for gastritis, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. In an unappealed decision, dated in November 2007, the RO denied a claim for service connection for a skin condition. 4. The evidence received since the RO's November 2007 decision, which denied a claim of entitlement to service connection for a skin condition, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim. 5. The Veteran served in Vietnam during the Vietnam War and is presumed to have been exposed to herbicides such as Agent Orange. 6. The Veteran does not have GERD, liver condition, to include hepatitis B and C, an eye condition, or an acquired psychiatric disorder, to include PTSD, that is related to his service. 7. The Veteran's service-connected disabilities are shown to preclude obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO's August 1994 decision which denied service connection for gastritis; the claim for service connection for GERD is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has not been received since the RO's November 2007 decision which denied service connection for a skin condition; the claim for service connection for a skin condition is not reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). 3. GERD, liver condition, to include hepatitis B and C, eye condition, and an acquired psychiatric disorder, to include PTSD, were not caused by the Veteran's service. 38 U.S.C. §§ 1110, 1116(f), 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2017). 4. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2014); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material The Veteran asserts that new and material evidence has been submitted to reopen claims for service connection for gastroesophageal reflux disease (GERD) and a skin condition, with both disabilities claimed as due to exposure to herbicides. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c) (2014). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The relevant laws and regulations as to service connection, to include as due to exposure to Agent Orange, as discussed in Part II, infra. In August 1994, the RO denied a claim for service connection for "bowel and liver problems", stating that the Veteran did not report for his VA examination and was seen as an outpatient for gastritis. In December 2006, the RO denied a claim for a skin condition. In November 2007, after additional evidence was received, the RO denied the claim for a skin condition on a de novo basis. There was no appeal to either of those decisions, and the RO's August 1994 and November 2007 decisions became final. See 38 U.S.C. § 7105(c) (2014). In August 2008, the Veteran filed to reopen the claims. In May 2009, the RO denied the claims for a skin condition, and "gastrointestinal disease (gastritis, also claimed as acid reflux, bowel problems)." The Veteran has appealed. With regard to the claim for a skin condition, the RO's May 2009 decision is not entirely clear as to whether it determined that new and material evidence had been submitted, or whether it denied the claim on the merits. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The most recent and final denial of the claim for bowel problems was in August 1994. The most recent and final denial of the claim for a skin condition was in November 2007. Therefore, the Board must determine if new and material evidence has been received since those times. See 38 U.S.C. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). As for the liver problems that were denied in August 1994, a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The United States Court of Appeals for Veterans Claims held that when varying diagnoses are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, "the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' or whether it is evidence tending to substantiate an element of a previously adjudicated matter." Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs, 520 F.3d at 1337 ). As will be discussed further below, the lay and medical evidence shows that the Veteran started having liver problems in 2003 and was thereafter diagnosed with cirrhosis, hepatitis B, and hepatitis C. Therefore, under the particular facts of this case, the Board finds that the current claim for a liver condition on appeal is a new claim and that new and material evidence is not required. See id. GERD The evidence of record at the time of the RO's August 1994 decision included the Veteran's service treatment records, which did not show any relevant complaints, findings, or diagnoses. The Veteran's separation examination report, dated in December 1971, showed that his abdomen and viscera were clinically evaluated as normal, and that the Veteran stated, "I am in good health." As for the post-service medical evidence, it included a VA progress note, dated in 1990, which is somewhat difficult to read, but which appeared to show treatment for complaints of diarrhea, and a diagnosis of gastritis. The medical evidence received since the RO's August 1994 rating decision includes VA progress notes, which show complaints of severe GERD beginning in 2004, with diagnoses of GERD. Thereafter, there are notations of dysphagia. A June 2007 report notes a history of GERD, as well as esophagitis, beginning in 1997. Recent VA progress notes contain problem lists noting abdominal pain, GERD, and dysphagia. This evidence, which was not of record at the time of the RO's August 1994 decision, is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156. The Board further finds that this evidence is material. As an initial matter, a diagnosis of GERD was not of record at the time of the RO's August 1994 decision, and it is arguable whether the claim for "bowel disease," denied in August 1994, which could be interpreted to involve a different anatomical area of the body, may be deemed to include a claim for GERD. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (the focus of the analysis must be whether the evidence truly amounted to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter). In any event, the evidence received since that decision shows that the Veteran currently has GERD, and the new medical evidence "contributes to a more complete picture" of the Veteran's disability. Shade; Hodge, 155 F.3d at 1363; see also Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (a change in diagnosis or the specificity of the claim must be carefully considered in determining whether the claim is based on a distinct factual basis). The Board therefore finds that the new evidence is material, and that it raises a reasonable possibility of substantiating the claim. Accordingly, the claim for GERD is reopened. Skin Condition With regard to the claim for a skin condition, the evidence of record at the time of the RO's November 2007 decision included the Veteran's service treatment records, which did not show any relevant complaints, findings, or diagnoses. The Veteran's separation examination report, dated in December 1971, showed that his skin was clinically evaluated as normal, and that the Veteran stated, "I am in good health." As for the post-service medical evidence, a VA progress note, dated in August 2006, noted atopic dermatitis. A June 2007 report contained a problem list noting a pruritic skin condition, with a findings of actinic keratosis. The medical evidence received since the RO's November 2007 rating decision includes VA progress notes, include notations of pruritus, and pruritic dermatoses. This evidence includes notations that the Veteran's pruritis is most likely due to the Veteran's hepatitis C, or hyperbilirubinemia. See e.g., VA progress notes, dated in October 2009. During his hearing, held in November 2010, the Veteran testified that he was not treated for skin symptoms during service, and that following separation from service, he first had skin symptoms in about 2002. This evidence, which was not of record at the time of the RO's November 2007 decision, which is not cumulative, is "new" within the meaning of 38 C.F.R. § 3.156. However, the Board finds that this evidence is not material. At the time of the RO's November 2007 decision, the Veteran was not shown to have a skin condition during service. The earliest medical evidence of a skin condition was dated in 2006, and there was no objective evidence to show that a skin condition was related to the Veteran's service. The submitted evidence does not remedy these defects, as it does not include any medical evidence of a skin condition dated during service, or prior to 2006, or which shows that the Veteran has a skin condition that was caused by his service. Shade; see also Anglin v. West, 202 F.3d 1343, 1347 (Fed. Cir. 2000) (stating that Hodge left intact the requirement that the evidence must be relevant to and probative of an issue that was a specified basis for the last final denial); Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). In summary, the new evidence is not material, and does not raise a reasonable possibility of substantiating the claim. Accordingly, the claim for a skin condition is not reopened. II. Service Connection The Veteran asserts that service connection is warranted for GERD, a liver condition, to include hepatitis B and C, an eye condition, and an acquired psychiatric disorder, to include PTSD. The Veteran argues that while he was in Vietnam, he was exposed to Agent Orange, and that service connection is warranted for all of the claimed conditions, other than an acquired psychiatric disorder, as due to exposure to Agent Orange. With regard to the claim for an acquired psychiatric disorder, to include PTSD, he argues that he has PTSD due to participation in combat. During his hearing, held in November 2010, the Veteran denied receiving treatment for high blood pressure during service. He testified that he had gastrointestinal and psychiatric symptoms shortly upon separation from service, that he first had eye symptoms in the 1980s, and that he first became aware of a liver problem in 2003. In a risk factors for hepatitis questionnaire, dated in October 2008, the Veteran stated that he started using intravenous drugs in Vietnam, and that he was sent to rehabilitation at Fort Ord prior to separation from service. He stated that he had been clean for 4 1/2 years. He stated that he has used intranasal cocaine after service in Vietnam, prior to getting clean in 2004, and that while in Vietnam, he had participated in high-risk sexual activity. He denied a history of blood transfusions, tattoos, body piercings, sharing toothbrushes or razor blades, or hemodialysis. He stated that he had been discharged from a VA hospital in Ohio after treatment for heroin use in Vietnam. The Board first notes that additional medical evidence has been received following the February 2017 supplemental statement of the case, that it is not accompanied by a waiver of RO review. However, the Board has determined that this evidence is not "pertinent" as defined at 38 C.F.R. § 20.1304 (c) (2017). Accordingly, a remand for RO consideration is not required. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. The statutory provision specifically covering Agent Orange is 38 U.S.C. § 1116. Under 38 U.S.C. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes; ischemic heart disease; non-Hodgkin's lymphoma; early onset peripheral neuropathy; all chronic B-cell leukemia; Parkinson's disease; porphyria cutanea tarda; prostate cancer; multiple myeloma; respiratory cancers; and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304 (f). The regulations governing PTSD were amended, effective July 13, 2010. 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a veteran is related to his/her fear of hostile military or terrorist activity, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. Id. Congenital or developmental defects, e.g., refractive error of the eyes, as such, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c) (2017); see also 38 C.F.R. § 4.9 (2017); Beno v. Principi, 3 Vet. App. 439 (1992). The VA Adjudication Procedure Manual, M21-1, Part III, Subpart iv, Chapter 4, Section B provides guidance on evaluating conditions of the organs of special sense (i.e., the eyes). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1, Part IV.ii.2.B.6.c. "Presbyopia is described as 'hyperopia and impairment of vision due to advancing years or to old age; it is dependent on diminution of the power of accommodation from loss of elasticity of the crystalline lens, causing the near point of distinct vision to be removed farther from the eye'." Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (citing to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1453 (29th ed. 2000)). Based on the law discussed, the term "eye disability" is not intended to include refractive error of the eyes. VA's General Counsel has concluded that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). That is because section 8052 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990), Public Law No. 101- 508, § 8052, 104 Stat. 1388, 1388-351, amended the status governing line of duty determinations and the definition of a "service-connected" disability. 38 U.S.C. §§ 101 (16) and 105(a). VA General Counsel precedent opinions are binding on the Board. Brooks v. Brown, 5 Vet. App. 484 (1993). In the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The Veteran's personnel records show that he served in the Republic of Vietnam. The Veteran's service treatment records show that in 1971, he was treated for genitourinary complaints of burning, swelling, pain, and a sore. There was a notation of venereal warts. There were impressions of chancroid, and balanitis. A December 1971 report notes the following: the Veteran was evaluated by a social worker while in Vietnam. The Veteran reported having severe anxiety while operating a bulldozer. He indicated use of marijuana and hashish during service ("weed and hash"), and a four-month history of heroin use, with as much as "two caps" a day. He has tested positive in a drug screen. The Veteran's separation examination report, dated in December 1971, showed that his psychiatric condition, were clinically evaluated as normal, and that the Veteran stated, "I am in good health." As for the post-service medical evidence, it includes a VA hospital report, covering treatment provided between January and February of 1972. This report notes that the Veteran had undergone a 10-day detoxification program after drug testing was positive for heroin. The Veteran been transferred from an Army Hospital, where he had been admitted in December 1971. The report contains a diagnosis of drug dependence, heroin. VA progress notes, dated between 1990 and 1994, show that the Veteran complained that his "nerves are shot," and nervousness. The diagnoses were anxiety, insomnia, adjustment disorder, and polysubstance abuse. A November 1992 report also notes rule out hepatic damage. VA progress notes, dated beginning in 2004, note major depressive disorder, rule out PTSD, and polysubstance dependence. His diagnoses included GERD. In March 2004, the Veteran was admitted to an opioid substitution program. He was noted to be taking medication for HBP (high blood pressure) and to complain about eye symptoms. VA progress notes, dated beginning in 2007, note hepatitis B, hepatitis C, glaucoma, depression, history of substance abuse. A June 2007 report notes a history of GERD beginning in 1997, and esophagitis beginning in 1997. A private treatment report from Gastroenterology Associates (aka Arkansas Gastroenterology), dated in January 2006, shows that the Veteran was noted to have a positive hepatitis B surface antigen, core antibody, and hepatitis C antibody with confirmatory evidence with hepatitis C RIBA (Recombinant Immunoblot Assay). The Veteran was noted to be a former heavy drinker of alcohol, i.e., he drank on a regular basis for ten to fifteen years, quite heavily for four or five years, with no drinking for the last 21/2 years. He also has a history of IV (intravenous) drug use from 1971 to 1991. The report notes, "He states that he did share needles, in fact, shared needles with a woman who turned out to have some type of chronic hepatitis." Private treatment records, dated in 2008, show that the Veteran was treated for eye symptoms. The Veteran was noted to have a history of early cataract, iritis, primary open-angle glaucoma, and glaucomatocytic crisis. He was noted not to have a history of trauma or ocular injuries, or ocular medications or ocular surgery. His history included liver dysfunction. The impressions were bilateral corneal arcus, bilateral chronic iritis, bilateral nuclear sclerosis cataract, and bilateral open-angle glaucoma, and glaucomatocytic crisis. Other private treatment reports, from Arkansas Gastroenterology, and the North Little Rock Family Practice Clinic, dated in 2008, note a history of hepatitis B, hepatitis C, and alcohol abuse. The Veteran reported using alcohol heavily until about five years' before, and that he had discontinued use of alcohol. He also reported using IV drugs 20 to 25 years ago. He denied a history of blood transfusions, and the report notes "no other history of exposure to hepatitis." The impressions included cirrhosis by biopsy. The diagnoses included liver cirrhosis with history of hepatitis C and alcohol abuse, status post recovery, and left iritis. VA progress notes, dated beginning in 2009, note uveitic glaucoma. Thereafter, VA progress notes include problem lists noting nuclear sclerotic cataract, esophageal varices in "alcoholic cir[]," opioid abuse, cannabis abuse, depression, cognitive impairment, prolonged depressive reaction, cirrhosis of liver, abdominal pain, PTSD, depressive disorder, GERD, dysphagia, cocaine dependence, cannabis dependence, personal history of exposure to Agent Orange, chronic hepatitis C, and glaucoma. There are multiple notations that his cirrhosis is secondary to hepatitis C, and/or heavy alcohol abuse. See e.g., VA progress notes, dated in 2009 and 2010. There are also notations that his hepatitis C began in 2007, and that he has a history of cocaine abuse. An April 2010 report notes MRSA (methicillin-resistant staphylococcus aureus) bacteria from an unknown source, and that he had been referred to further evaluation of possible systemic autoimmune etiology for recurrent chronic nongranulomatous anterior uveitis. A VA initial PTSD disability benefits questionnaire (DBQ), dated in January 2014, shows that the examiner, a physician, indicated that the Veteran's claims file had been reviewed. The Veteran reported that he had been clean and sober since June 2003. He reported that while he was in Vietnam he had been fired upon, and that at times people were injured. Following an examination, the examiner concluded that the Veteran does not meet the diagnostic criteria for PTSD, and that he does not have a mental disorder. She explained, "Based on the totality of the record and today's clinical interview, there is not sufficient evidence to meet diagnostic criteria for PTDS or any other mental health disorder related to military service. She explained that the earliest treatment notes from 2004 document the Veteran's statement that he had been experiencing depression for 10 to 15 years, which would place the start of his depression between 1989 and 1994, which is 12 to 17 years following his discharge from the military. The Veteran did report dreams of Vietnam, but specifics were not provided in the report. The next documented mental health treatment was five years later, in April 2009, which notes self-referral for depression. Mental health diagnostic in May 2009 shows a report of depression related to being fired from a job following an accident, guilt over the death of an infant son in 1977, and childhood and family of origin issues. It was noted that the Veteran did not blame his time in Vietnam for his symptoms, and that he reported seeing and doing things he wished he hadn't, with no specifics noted. A July 2009 report noted some focus on Vietnam experience, but no specifics. The next mental health note, dated in August 2010, shows that he reported that he was depressed all the time because he was fired from his job in 2007. The report notes financial stressors. An October 2011 neuropsychological test noted suboptimal effort resulting in an invalid profile. In September 2013, the Veteran was noted to report having nightmares of animals and people chasing him. The stressors he reported were different than the ones he reported on current examination. A VA hepatitis, cirrhosis, and other liver conditions DBQ, dated in June 2017, shows that the examiner, a physician, indicated that the Veteran's VA e-folder (VBMS or Virtual VA), and his claims file, had been reviewed. The diagnoses were hepatitis B, hepatitis C, and cirrhosis of the liver. The examiner, a physician, concluded that the claimed conditions are less likely as not (less than 50 percent probability) incurred in or caused by his service. The examiner explained the following: the Veteran had liver disease, cirrhosis, related to his hepatitis B and hepatitis C. He was discharged in 1972, and participated in a detoxification program in 1994, at which time it was noted that he had used alcohol and I.V. drugs until that time. There were no previous medical complaints of liver disease, or problems for years after discharge. Both hepatitis B and hepatitis C infections often cause cirrhosis if not treated. The high risk activity is the IV drug use and high-risk sexual activity, which he had after service, until he went into a detoxification program. Therefore, it is less likely as not that his hepatitis B and hepatitis C, as well as cirrhosis, are due to his service, and more likely that they are due to his IV and drug abuse, with over 20 years of abuse following service. High risk sexual activity as reported by the Veteran during service has been associated with hepatitis C, as have blood transfusions during this time period. However, the more probable risk factor is IV drug abuse. The Veteran's medical records report IV drug use from separation from service until admission to a detoxification program in 1994, a period of about 20 years. Therefore, it is less likely as not that his hepatitis C is due to his high-risk sexual activity during service, and it is more likely that it is due to his 20-year history of IV drug use after his service. The Veteran has hepatitis B. He was diagnosed with hepatitis B well after his service. Hepatitis has been associated with high risk sexual activity, along with body fluid exposure and IV drug abuse. The Veteran claimed a 20-year history of drug abuse after service. Therefore it is less likely as not that his hepatitis B is related to his service, and it is more likely due to his 20-year history of high risk activities after service. The Board finds that the claims must be denied. With regard to PTSD, the Board finds that the evidence is insufficient to show that the Veteran currently has PTSD. In fact, there is highly significant medical evidence against such a finding, as noted above. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C. § 1110, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). In particular, the January 2014 VA examination report shows that the examiner concluded that the Veteran does not have PTSD. This opinion is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, and it is accompanied by sufficient explanations and findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Board has considered the notations of "rule out PTSD," and PTSD, in the VA progress notes, none of them are shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history, none of them discussed the individual criteria for PTSD, and the notations of "rule out PTSD" are equivocal in their terms. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Accordingly, the Board finds that the preponderance of the evidence is against the claim for PTSD, and that the claim must be denied. With regard to the claim for an acquired psychiatric disorder other than PTSD, and all other service connection claims currently on appeal, the Board finds that the claims must be denied. The Veteran's service treatment records have been discussed. Notwithstanding evidence of high-risk sexual activity, they do not show an relevant treatment, findings, or diagnoses. All relevant body parts and systems were clinically evaluated as normal upon separation from service in December 1971. To the extent that the VA progress notes show that the Veteran has post-service diagnoses involving alcohol abuse and drug abuse, to include cocaine and opioid dependence, compensation may not be awarded for these conditions, even if such were shown during service. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(c). Given the foregoing, a chronic condition is not shown during service. See 38 C.F.R. § 3.303 (b). The earliest post-service medical evidence of treatment for any of the claimed conditions are notations "by history" of GERD in 1997. Even assuming arguendo that GERD is shown as of that year, this was approximately 25 years after his active duty service. There is no competent opinion of record in favor of any of the claims. With regard to hepatitis B, hepatitis C, and cirrhosis, the June 2017 VA opinion weighs against the claim. Furthermore, apart from cirrhosis, none of the demonstrated disorders are among the disorders listed at 38 C.F.R. § 3.309 (a), and the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). There is no evidence to show cirrhosis of the liver within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. Accordingly, this evidence is insufficiently probative to warrant a grant of any of the claims, and the claims must be denied. The Veteran also argues that service connection is warranted based on his presumptive exposure to Agent Orange. Although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to herbicides such as Agent Orange, the applicable law does not include any of the claimed conditions as a condition for which presumptive service connection may be granted. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). There is no competent evidence of record to show that the Veteran has any of the claimed conditions due to exposure to Agent Orange. Combee. Service connection is therefore not warranted on this basis. To the extent that the Veteran argues that he participated in combat, even assuming arguendo that participation in combat was established, the United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C. § 1154 does not alter the fundamental requirements of a diagnosis, and a medical nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Therefore, service connection is not warranted on this basis. The Board has considered the Veteran's assertions that he currently has the claimed conditions that are related to his active service. He has not specifically claimed to have had ongoing symptoms for any of the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran's service treatment records, and post-service records have been discussed, and this evidence is considered more probative than the Veteran's lay assertions. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). III. TDIU The Veteran's current total combined rating for service-connected disability is 100 percent, to include a 100 percent rating for ischemic heart disease, and a 10 percent for tinnitus. See 38 C.F.R. § 4.25 (2017). Accordingly, he meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the veteran's education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). On June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that General Counsel precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). But in view of the issuance by the United States Court of Appeals for Veterans Claims of its decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in the O.G.C. precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99. The Board therefore is also granting the TDIU claim since the total occupational and social impairment due to the service-connected ischemic heart disease also is reason to grant a TDIU inasmuch as the severity of this disability precludes the Veteran from engaging in all forms of employment that is substantially gainful. See Faust v. West, 13 Vet. App. 342 (2000); Moore v. Derwinski, 1 Vet. App. 356, 359 (1991); and 38 C.F.R. § 4.16 (a). While the Board considers the medical evidence of record, the ultimate matter of whether TDIU should be awarded is not a medical issue, but is a legal determination for the adjudicator to make. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this regard, the Board notes the Veteran has an employment history of working as a laborer. See, e.g., January 2014 VA PTSD examination. The Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that TDIU on a schedular basis is warranted. The Veteran's 100 percent rating for ischemic heart disease implicitly indicates that he has total occupational and social impairment. The Board therefore finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that TDIU on a schedular basis is warranted. The Board notes that the effective date of this award is not before the Board at this time, as it must be addressed by the RO in the first instance. IV. Duties to Notify and Assist In this case, the Veteran has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (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). In May 2012, the Board remanded this claim. The Board directed that the Veteran be provided with a release form for medical records generated by Dr. C. C. In October 2016, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's remand instructions. That same month, he indicated that he had only seen Dr. C.C. once, that she was a VA physician, and that his PTSD treatment was through VA. Additional VA progress notes were subsequently obtained. The Board directed that an attempt be made to obtain that Veteran's records from the Social Security Administration (SSA). In November 2013, the SSA stated that it did not have any records for the Veteran. Finally, the Board directed that the Veteran be afforded a VA psychiatric examination, and in January 2014, this was done. In this regard, the Board has considered that the January 2016 VA examiner indicated the Veteran did not meet the criteria for PTSD under DSM-5. See 70 Fed. Reg. 45,093 (Aug. 4, 2014). DSM-5 sets forth four distinct diagnostic clusters for PTSD, as opposed to the three set forth in DSM-IV (re-experiencing, avoidance, and arousal). As the January 2014 VA opinion states that the Veteran fails to meet the criteria C (persistent avoidance), and D (negative alterations in cognition and mood), he clearly fails to meet the criteria for PTSD under DSM-IV, notwithstanding his citation to DSM-5. Therefore, no prejudice accrues to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993); Hickson v. Shinseki, 23 Vet. App. 394 (2010). Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New and material evidence has not been received that is sufficient to reopen the claim of entitlement to service connection for a skin condition; the claim is not reopened. New and material evidence having been received, the claim for GERD is reopened; to this extent only the appeal is granted. Service connection for GERD, a liver condition, to include hepatitis B and C, an eye condition, and an acquired psychiatric disorder, to include PTSD, is denied. TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND The Veteran testified that he was diagnosed with hypertension in about 1999. VA progress notes, dated beginning in 2004 show a diagnosis of hypertension. Regarding the claim for service connection for hypertension, due to the Veteran's service in the Republic of Vietnam, he has presumed herbicide exposure in service. Although hypertension is not listed as a disease associated with herbicide exposure under the applicable regulations, the National Academy of Sciences Institute of Medicine (IOM) has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 79 Fed. Reg. 2030877, 20310 (Apr. 11, 2014); Fed. Reg. 47,924, 47, 926-927 (Aug. 10, 2012). Additionally, an article in the November 2016 Journal of Occupational and Environmental Medicine entitled Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans suggests that herbicide exposure history and Vietnam service status were significantly associated with hypertension risk. See https://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. Thus the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The Veteran's claims file should be provided to and reviewed by the examiner. All indicated studies should be performed. Based on review of the record, and interview of the record, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension had its onset or is otherwise related to service, to specifically include exposure to herbicide agents. The opinion should include consideration and discussion of the Veteran's presumed exposure to herbicide agents and the IOM study and the November 2016 article regarding Agent Orange and hypertension referenced above. A detailed rationale for any opinion expressed should be provided. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so. 2. The AOJ must review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs