TIMELINESS OF MARCH 2004 NOTICE OF DISAGREEMENT REGARDING FEBRUARY 2004 RATING DECISION

VITO A. CLEMENTI · 2025 · Case ID: 25000301

MIXED

Summary

The Veteran served in the Army from August 1967 to May 1969, including service in Korea. The Veteran has a total disability rating based on individual unemployability (TDIU) effective November 2011. The Veteran appeals multiple denials and remands from previous Board decisions, primarily concerning claims related to herbicide exposure. Specifically, the Veteran seeks service connection for a gastrointestinal disorder, renal cell carcinoma, hypertension, a skin disorder, diabetes mellitus (DM), peripheral neuropathy (PN), bilateral upper extremity radiculopathy, a bilateral knee disorder, and a bilateral ankle disorder, all claimed due to herbicide exposure. Additionally, the Veteran appeals issues related to earlier effective dates for lumbar spine disorder, left lower extremity radiculopathy, and exotropia, as well as increased ratings for lumbar spine disorder, left lower extremity radiculopathy, right lower extremity radiculopathy, and exotropia. The Board granted the appeal regarding the timeliness of a March 2004 Notice of Disagreement (NOD) concerning a February 2004 rating decision. Service connection for PTSD was granted with an effective date of January 7, 2014. The remaining claims, including all herbicide exposure-related conditions and several effective date and increased rating issues, were remanded for further development, specifically to verify alleged herbicide exposure in Korea and to adjudicate claims based on a timely NOD.

Service Branch

ARMY

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

18-10 876

Full Decision Text

Citation Nr: 25000301
Decision Date: 01/10/25 Archive Date: 01/10/25

DOCKET NO. 18-10 876
DATE: January 10, 2025

ORDER

The appeal as to the timeliness of the March 2004 Notice of Disagreement (NOD) regarding a February 2004 rating decision is granted.

An effective date of January 7, 2014, but not earlier, for the award of service connection for post-traumatic stress disorder (PTSD), is granted.

REMANDED

The issue of service connection for a gastrointestinal disorder, due to herbicide exposure, is remanded.

The issue of service connection for renal cell carcinoma, due to herbicide exposure, is remanded.

The issue of service connection for hypertension, due to herbicide exposure, is remanded.

The issue of service connection for a skin disorder, due to herbicide exposure, is remanded.

The issue of service connection for diabetes mellitus (DM), type II, due to herbicide exposure, is remanded.

The issue of service connection for peripheral neuropathy (PN), as caused or aggravated by DM, is remanded.

The issue of service connection for bilateral upper extremity radiculopathy, due to herbicide exposure, is remanded.

The issue of service connection for a bilateral knee disorder, due to herbicide exposure, is remanded.

The issue of service connection for a bilateral ankle disorder, due to herbicide exposure, is remanded.

The issue of an earlier effective date for the award of service connection for a lumbar spine disorder, prior to November 15, 2011, is remanded.

The issue of an earlier effective date for the award of service connection for left lower extremity radiculopathy, prior to November 15, 2011, is remanded.

The issue of an earlier effective date for the award of service connection for exotropia, prior to November 15, 2011, is remanded.

The issue of an initial rating higher than 40 percent for a lumbar spine disorder is remanded.

The issue of an initial rating higher than 20 percent for left lower extremity radiculopathy is remanded.

The issue of an initial rating higher than 10 percent for right lower extremity radiculopathy, from February 5, 2018 to the present, is remanded.

The issue of an initial compensable rating for exotropia, to include the question of whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception, is remanded.

The issue of a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities, prior to November 15, 2011, is remanded.

FINDINGS OF FACT

1. The most probative and persuasive evidence is in approximate equipoise concerning whether a completed NOD was received by the Regional Office (RO) within the appeal period of a February 2004 rating decision.

2. In correspondence, received by VA on January 7, 2014, the Veteran filed an informal claim for service connection for a psychiatric disorder when he stated, "[w]earing dentures from the age of 22 until now has been, and continues to be a physical, emotional, and psychological burden."

CONCLUSIONS OF LAW

1. The criteria for the appeal as to the timeliness of the March 2004 NOD for the February 2004 rating decision are met. 38 U.S.C. §§ 5104(a), 7105; 38 C.F.R. §§ 3.1(q), 3.109, 19.24, 19.34, 20.200, 20.201, 20.300.

2. The criteria to establish an effective date of January 7, 2014, but not earlier, for the award of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1967 to May 1969, including service in Korea.

The Veteran has a total disability rating based on individual unemployability ("TDIU"), effective in November 2011.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1967 to May 1969, including service in Korea.

The Veteran has a total disability rating based on individual unemployability ("TDIU"), effective in November 2011.

In May 2021, the Board of Veterans' Appeals (Board) denied claims of increased ratings for a lumbar spine disorder and for bilateral lower extremity radiculopathy; a claim to reopen the issue of service connection for a gastrointestinal disorder; claims of service connection for bilateral upper extremity radiculopathy, for a bilateral knee disorder, and for a bilateral ankle disorder; and claims of earlier effective dates, prior to November 15, 2011, for the awards of service connection for a lumbar spine disorder and for left lower extremity radiculopathy. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In a March 2024 Memorandum Decision, the Court set aside these denials and remanded the claims to the Board for readjudication.

In October 2022, the Board denied claims of an earlier effective date, prior to November 15, 2011, for the award of service connection for exotropia, and prior to February 5, 2018, for the award of service connection for a psychiatric disorder. The Veteran appealed to the Court. In a July 2024 Memorandum Decision, the Court set aside these denials and remanded the claims to the Board for readjudication. The Court also found that the Board erred when it declined to address an increased rating for exotropia, to include consideration of separate ratings for blurred vision, diplopia, and lack of depth perception.

In May 2023, the Board denied claims of service connection for renal cell carcinoma, hypertension, a skin disorder, DM, and PN; and a TDIU, prior to November 15, 2011. The Veteran appealed to the Court. In an April 2024 Memorandum Decision, the Court set aside these denials and remanded the claims to the Board for readjudication.

After review of the record, the Board has determined the following:

The appeal as to the timeliness of the March 2004 NOD regarding a February 2004 rating decision is granted.

An effective date of January 7, 2014, but not earlier, for the award of service connection for PTSD, will be granted.

The issues of service connection for a gastrointestinal disorder, renal cell carcinoma, hypertension, skin disorder, bilateral upper extremity radiculopathy, bilateral knee disorder, bilateral ankle disorder, DM, and PN, will be remanded for the RO to contact the Military Records Research Center (MRRC) to verify the Veteran's alleged exposure to herbicide agents in Korea.

The issues of earlier effective dates for the awards of service connection for a lumbar spine disorder, for left lower extremity radiculopathy, and for exotropia, will be remanded for the RO to accept the Veteran's March 2004 NOD as timely and to adjudicate the claims accordingly.

The issues of increased ratings for a lumbar spine disorder, left lower extremity radiculopathy, right lower extremity radiculopathy, and for exotropia, to include the question of whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception, will be remanded for the RO to provide the Veteran with new VA examinations to determine the current severity of the disabilities.

As the issue of a TDIU, prior to November 15, 2011, is inextricably intertwined with the remanded issues, the issue of a TDIU, prior to November 15, 2011, will also be remanded.

1. The appeal as to the timeliness of the March 2004 NOD regarding a February 2004 rating decision is granted.

The Veteran contends that his March 2004 NOD was received by VA within the appeal period of the February 2004 rating decision. The appeal is granted.

An appeal consists of a timely filed NOD in writing, and after a Statement of the Case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. As to what constitutes a notice of disagreement, the Court has said that the Board determines de novo whether a document is a notice of disagreement. Fenderson v. West, 12 Vet. App. 119 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27-28 (1996). In this regard, a notice of disagreement is a written statement reasonably expressing disagreement with and a desire to contest any aspect of the adjudication(s). 38 C.F.R. § 20.201. A notice of disagreement requires no special wording or phrasing and is to be evaluated within the context of the overall record. Id.; see also Jarvis v. West, 12 Vet. App. 599, 561-62 (1999).

A claimant or his representative must file a notice of disagreement with a determination of the AOJ within one year from the date that the AOJ mailed notice of the determination. 38 C.F.R. § 20.302(a). A notice of disagreement must be filed with the VA office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office. 38 C.F.R. § 20.300. If a notice of disagreement is not filed within the one-year time period, the AOJ decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d) (); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c).

In an April 2021 written statement, the Veteran, through his most recent attorney, stated that a NOD was filed regarding all issues denied in the February 18, 2004 rating decision, on March 1, 2004, by the Veteran's former representative, Disabled American Veterans (DAV). The Veteran, through his most recent attorney, stated that a Statement of the Case (SOC) was requested, but never issued.

Under the common law mailbox rule, if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time and was received by the person to whom it was addressed. Rios v. Nicholson (Rios I), 490 F.3d. 928, 930-31 (Fed. Cir. 2007) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)). The presumption is not a conclusive presumption of law, but a mere inference of fact, founded on the probability that the officers of the government will do their duty in the usual course of business. Rosenthal, 111 U.S. at 193 (quoting Huntley v. Whittier, 105 Mass. 391, 392 (1870)). If evidence is presented that the letter was never received, the evidence must be weighed by the trier of fact with all the other circumstances of the case in deciding on the question of whether the letter was actually received. Id. at 194 (quoting Huntley, 105 Mass. at 392).

In Anania v. McDonough, No. 2020-1086 (Fed. Cir. June 10, 2021), the United States Court of Appeals for the Federal Circuit rejected the Court's holding that self-serving affidavits are per se insufficient to establish the presumption of receipt under the mailbox rule. In so doing, the Federal Circuit reversed prior Court's precedent. Under the rule as articulated by the Federal Circuit in Anania, all that is required for the presumption to attach is evidence demonstrating that the mail was "properly addressed, stamped, and mailed in adequate time to reach the [destination] in the normal course of post office business," or "in lieu of direct proof of mailing, . . . evidence of mailing custom or routine practice." Rios I, 490 F.3d at 933.

As noted, the Veteran, through his most recent attorney, contends that his former representative, DAV, filed a NOD regarding all claims denied in the February 18, 2004 rating
of receipt under the mailbox rule. In so doing, the Federal Circuit reversed prior Court's precedent. Under the rule as articulated by the Federal Circuit in Anania, all that is required for the presumption to attach is evidence demonstrating that the mail was "properly addressed, stamped, and mailed in adequate time to reach the [destination] in the normal course of post office business," or "in lieu of direct proof of mailing, . . . evidence of mailing custom or routine practice." Rios I, 490 F.3d at 933.

As noted, the Veteran, through his most recent attorney, contends that his former representative, DAV, filed a NOD regarding all claims denied in the February 18, 2004 rating decision, on March 1, 2004. The Board finds that both parties are competent and credible to make these assertions.

The March 2004 NOD is not associated with the file, and there is no direct indication that such was received by VA and/or scanned into VA's electronic records system. However, the record contains a completed VA Form 21-22 regarding DAV's representation of the Veteran, signed on February 20 2004, and stamped received on February 25, 2004; VA acknowledged on March 2, 2004.

The record also contains a memorandum, from DAV, requesting that the Veteran's VA records to be updated, dated February 23, 2004, and stamped received on February 25, 2004; the bottom of the memorandum shows the hand-written notes of "reopened comp" and "other DTA."

The Board finds it likely that the NOD was submitted along with the February 2004 VA Form 21-22 and/or memorandum from DAV. The February 2004 memorandum requests that the Veteran's VA records to be updated and contains indication of disagreement in the form of the hand-written notes of "reopened comp" and "other DTA." Indeed, Veteran's and their representatives routinely request such when there is disagreement with a rating decision, in preparation of an appeal. In addition, on March 2, 2004, VA acknowledged receipt of the February 2004 VA Form 21-22. At the very least, the record shows that the Veteran filed a completed, signed, VA Form 21-22, and requested his VA records to be updated, close in time to when he contends that he submitted a NOD to the February 2004 rating decision.

Considering the credible reports that the Veteran, through his former representative, DAV, sent the March 2004 NOD to VA, the most probative and persuasive evidence is in approximate equipoise concerning whether a completed NOD was received by the RO within the appeal period of a February 2004 rating decision. Therefore, the Veteran's appeal is granted. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Earlier Effective Dates

In general, the effective date of an award based on an original claim, or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(ii)(r). The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service.

During the pendency of this appeal, VA amended it regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises and eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. See 79 Fed. Reg. 57, 696 (Sep. 25, 2014) (effective Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Claims or appeals that were pending on that date are to be decided by the regulations
received within one year after separation from service.

During the pendency of this appeal, VA amended it regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises and eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. See 79 Fed. Reg. 57, 696 (Sep. 25, 2014) (effective Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Claims or appeals that were pending on that date are to be decided by the regulations as they existed prior to the amendment. Id. As the Veteran's claim was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id.

Before this change, a "claim" was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). A formal claim is one that has been filed in the form prescribed by VA. 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See also 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written and must identify the benefit being sought. See Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

2. An effective date of January 7, 2014, but not earlier, for the award of service connection for PTSD, is granted.

The Veteran's PTSD is service-connected, effective February 5, 2018, rated as 50 percent disabling.

He contends that an effective date, prior to February 5, 2018, is warranted, because he submitted an informal claim for compensation for this disability, prior to February 5, 2018.

The question for the Board is whether VA received an informal claim for compensation for this disability, prior to February 5, 2018, that was not previously adjudicated and final.

In correspondence, received by VA on January 7, 2014, the Veteran filed an informal claim of service connection for a psychiatric disorder when he stated, "[w]earing dentures from the age of 22 until now has been, and continues to be a physical, emotional, and psychological burden."

A May 2021 Board decision granted service connection for unspecified trauma and stressor-related disorder. An August 2021 rating decision assigned a 10 percent rating for unspecified trauma and stressor-related disorder, effective February 5, 2018, the date of receipt of the February 5, 2018 application for VA compensation for service connection for a mental health condition. An April 2022 rating decision recharacterized the Veteran's disability as PTSD, and assigned an increased rating of 50 percent, effective February 5, 2018.

However, the record shows that the Veteran filed an informal claim for service connection, which was received by VA on January 7, 2014. There is no indication in the record that the Veteran filed a claim, informal or formal, of service connection for a psychiatric disorder, prior to January 7, 2014. There is no legal basis to assign an effective date earlier than January 7, 2014.

Prior to January 7, 2014, VA did not receive a claim, informal or formal, for compensation, and that the effective date of the award for compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2).

In conclusion, an effective date of January 7, 2014
in the record that the Veteran filed a claim, informal or formal, of service connection for a psychiatric disorder, prior to January 7, 2014. There is no legal basis to assign an effective date earlier than January 7, 2014.

In conclusion, an effective date of January 7, 2014, but not earlier, for the award of service connection PTSD is warranted, and to this extent the claim is granted. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

REASONS FOR REMAND

1. The issue of service connection for a gastrointestinal disorder, due to herbicide exposure, is remanded.

2. The issue of service connection for renal cell carcinoma, due to herbicide exposure, is remanded.

3. The issue of service connection for hypertension, due to herbicide exposure, is remanded.

4. The issue of service connection for a skin disorder, due to herbicide exposure, is remanded.

5. The issue of service connection for DM, due to herbicide exposure, is remanded.

6. The issue of service connection for PN, as caused or aggravated by DM, is remanded.

7. The issue of service connection for bilateral upper extremity radiculopathy, due to herbicide exposure, is remanded.

8. The issue of service connection for a bilateral knee disorder, due to herbicide exposure, is remanded.

9. The issue of service connection for a bilateral ankle disorder, due to herbicide exposure, is remanded.

10. The issue of an earlier effective date for the award of service connection for a lumbar spine disorder, prior to November 15, 2011, is remanded.

11. The issue of an earlier effective date for the award of service connection for left lower extremity radiculopathy, prior to November 15, 2011, is remanded.

12. The issue of an earlier effective date for the award of service connection for exotropia, prior to November 15, 2011, is remanded.

13. The issue of an initial rating higher than 40 percent for a lumbar spine disorder is remanded.

14. The issue of an initial rating higher than 20 percent for left lower extremity radiculopathy is remanded.

15. The issue of an initial rating higher than 10 percent for right lower extremity radiculopathy, from February 5, 2018 to the present, is remanded.

16. The issue of an initial compensable rating for exotropia, to include the question of whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception, is remanded.

17. The issue of a TDIU, prior to November 15, 2011, is remanded.

The matters are REMANDED for the following action:

1. BACKGROUND FOR THE DECISION REVIEW OPERATIONS CENTER (DROC) ADJUDICATOR

Regarding the issues of service connection for a gastrointestinal disorder, renal cell carcinoma, hypertension, skin disorder, bilateral upper extremity radiculopathy, bilateral knee disorder, bilateral ankle disorder, DM, and PN, this is a remand for the RO to contact the Military Records Research Center (MRRC) to verify the Veteran's alleged exposure to herbicide agents in Korea.

Regarding the issues of earlier effective dates for the awards of service connection for a lumbar spine disorder, for left lower extremity radiculopathy, and for exotropia, this is a remand for the RO to accept the Veteran's March 2004 NOD as timely and to adjudicate the claims accordingly.

Regarding the issues of increased ratings for a lumbar spine disorder, left lower extremity radiculopathy, right lower extremity radiculopathy, and for exotropia, to include the question of whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception, this is a remand for the RO to provide the Veteran with new VA examinations to determine the current severity of the disabilities.

The issue of a TDIU, prior to November 15, 2011, is inextricably intertwined with the remanded issues, and is remanded as such.

MRRC RESEARCH

The Veteran contends that his gastrointestinal disorder, renal cell carcinoma, hypertension, skin disorder, bilateral upper extremity
the issues of increased ratings for a lumbar spine disorder, left lower extremity radiculopathy, right lower extremity radiculopathy, and for exotropia, to include the question of whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception, this is a remand for the RO to provide the Veteran with new VA examinations to determine the current severity of the disabilities.

The issue of a TDIU, prior to November 15, 2011, is inextricably intertwined with the remanded issues, and is remanded as such.

MRRC RESEARCH

The Veteran contends that his gastrointestinal disorder, renal cell carcinoma, hypertension, skin disorder, bilateral upper extremity radiculopathy, bilateral knee disorder, bilateral ankle disorder, and DM, were caused by his alleged exposure to herbicide agents in Korea; he contends that his PN was caused or aggravated by DM.

In particular, he alleges that he was exposed to herbicide agents during travel in Korea, from Camp Ross and Camp Howze, to the 121st Evacuation Hospital at ASCOM Korea, either due to contamination on the medical transport bus or from when the bus crossed into the Demilitarized Zone (DMZ). He contends that the medical transport buses were contaminated with Agent Orange dioxins and that he went to the DMZ area "probably more than ten times" on the buses.

In the November 2022 Board remand, the RO was directed to send a request to the MRRC for verification of the Veteran's exposure to herbicide agents, to include obtaining location information for Camp Ross, Camp Howze, and the 121st Evacuation Hospital at ASCOM, including the distance of each to the Korean DMZ. However, the January 2023 MRRC memorandum does not include location information for Camp Ross, Camp Howze, or the 121st Evacuation Hospital at ASCOM, nor their distances from the DMZ.

The issues of service connection for a gastrointestinal disorder, renal cell carcinoma, hypertension, skin disorder, bilateral upper extremity radiculopathy, bilateral knee disorder, bilateral ankle disorder, DM, and PN, are remanded to the RO to contact the MRRC to verify the Veteran's alleged exposure to herbicide agents in Korea.

EARLIER EFFECTIVE DATES

As decided in this decision, the March 1, 2004 NOD regarding the February 18, 2004 rating decision is presumed to have been received under the mailbox rule. As such, the issues of earlier effective dates for the awards of service connection for a lumbar spine disorder, for left lower extremity radiculopathy, and for exotropia, are remanded for the RO to accept the March 2004 NOD as timely and to adjudicate the claims accordingly.

INCREASED RATING CLAIMS

The Veteran's most recent VA back conditions examination was in March 2018, and his most recent VA eye conditions examination was in October 2020. As the evidence shows that the service-connected lumbar spine disorder, left lower extremity radiculopathy, right lower extremity radiculopathy, and exotropia disabilities may have worsened since his last VA examinations, remand is necessary to provide the Veteran with new VA examinations to determine the current severity of the disabilities.

TDIU

As the issue of a TDIU, prior to November 15, 2011, is inextricably intertwined with the remanded issues, the issue of a TDIU, prior to November 15, 2011, must also be remanded. See Tyrues, 23 Vet. App. at 177; see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

THE REMAND DIRECTIVES FOLLOW.

2. Contact the MRRC to verify the Veteran's alleged exposure to herbicide agents in Korea, to include exposure along travel routes, from Camp Ross to Camp Howze, and from Camp Ross and Camp Howze to the 121st Evacuation Hospital at ASCOM, including exposure on medical transport buses.

* The Veteran alleges that he was exposed to herbicide agents, from April 1968 to August 1968, while assigned to the 2nd Administration Company, 2nd Infantry Division, Eighth US Army, while along the DMZ, and while traveling from Camp Ross to Camp Howze, during his service in Korea. He also reported traveling to the 121st Evacuation Hospital at ASCOM, from Camp Ross and Camp Howze. His service treatment records (STRs) corroborate his report of receiving treatment at the 121st Evacuation Hospital at ASCOM, during his service in Korea.

* IF EXPOSURE IS VERIFIED, provide the Veteran with appropriate VA
OM, including exposure on medical transport buses.

* IF EXPOSURE IS VERIFIED, provide the Veteran with appropriate VA examinations and VA medical opinions regarding the issues of service connection for a gastrointestinal disorder, renal cell carcinoma, hypertension, skin disorder, bilateral upper extremity radiculopathy, bilateral knee disorder, bilateral ankle disorder, DM, and PN,

* If there is insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify such exposure.

* If necessary, conduct any further development.

3. Accept the March 2004 NOD as timely and adjudicate the claims of earlier effective dates for the awards of service connection of a lumbar spine disorder and for exotropia accordingly.

* As service connection for left lower extremity radiculopathy was granted secondary to service-connected lumbar spine disorder, the RO must also adjudicate the claim of an earlier effective date for the award of service connection for left lower extremity radiculopathy.

4. Schedule the Veteran for a VA back conditions examination, with an appropriately qualified VA examiner, to determine the current severity of his lumbar spine disorder disability. The claims file, to include a copy of this remand, must be made available to the examiner for review. The examination report should reflect that such a review was accomplished. The examiner should elicit a complete history from the Veteran.

All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail. Specifically, as to any reported worsening, the examiner must provide a complete explanation as to findings.

The VA examiner must provide the following:

* Assess the current severity of the Veteran's lumbar spine disorder disability.

* The examiner must also assess whether the severity of the Veteran's condition has ever amounted to the functional equivalent of ankylosis and/or incapacitating episodes.

5. Schedule the Veteran for a VA peripheral nerves conditions examination, with an appropriately qualified VA examiner, to determine the current severity of his left and right lower extremity radiculopathy disability. The claims file, to include a copy of this remand, must be made available to the examiner for review. The examination report should reflect that such a review was accomplished. The examiner should elicit a complete history from the Veteran.

The VA examiner must provide the following:

* Assess the current severity of the Veteran's left and right lower extremity radiculopathy disability.

6. Schedule the Veteran for a VA eye conditions examination, with an appropriately qualified VA examiner, to determine the current severity of his exotropia, to include symptoms of blurred vision, diplopia, and lack of depth perception. The claims file, to include a copy of this remand, must be made available to the examiner for review. The examination report should reflect that such a review was accomplished. The examiner should elicit a complete history from the Veteran.

The VA examiner must provide the following:

* Assess the current severity of the Veteran's exotropia, to include symptoms of blurred vision, diplopia, and lack of depth perception.

A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation.

The examiner is advised that by law, he or she must provide a thorough explanation for each opinion. The mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinions sufficient.

7. Following the review and any additional development deemed necessary, re-adjudicate the claims, to include a TDIU, prior to November 15, 2011. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case (SSOC), and
be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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.

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Timothy T. Emmart

The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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