Citation Nr: 0004260 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-04 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for peripheral neuropathy. 2. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder and dysthymia. 3. Entitlement to service connection for tinnitus. 4. Whether new and material evidence has been submitted to reopen a claim of service connection for a left inguinal hernia. 5. Whether new and material evidence has been submitted to reopen a claim of service connection for an eye disorder. 6. Entitlement to an increased (compensable) evaluation for a service-connected skin disability. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from May 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. By a rating decision issued in June 1997, the RO denied claims of entitlement to service connection for peripheral neuropathy and post-traumatic stress disorder (PTSD). The RO also denied a request to reopen a claim for service connection for an eye condition and denied an increased (compensable) evaluation for a service-connected skin disability diagnosed as multiple verrucae. In January 1998, the RO determined that the veteran had not timely filed an appeal of an April 1968 rating decision which denied a claim of entitlement to service connection for a left inguinal hernia. The RO also denied a request to reopen a claim of entitlement to service connection for a "nervous disorder." By a rating decision issued in September 1998, the RO denied a claim of entitlement to service connection for tinnitus. The veteran timely disagreed with each of these determinations and, following issuance of a statement of the case (SOC), filed timely substantive appeal as to each issue. Regarding the veteran's claims for service connection for PTSD and dysthymia, the Board notes that an unappealed April 1968 rating decision denied service connection for a psychiatric disorder, claimed as a nervous condition. The veteran subsequently sought to reopen his claim for service connection for a psychiatric disorder. In June 1997, the RO denied service connection for PTSD. In a October 1997 notice of disagreement, the veteran contended that service connection for dysthymia had been denied and the RO, in its January 1998 SOC, addressed the claim of entitlement to service connection for dysthymia and concluded that the evidence was not new and material to reopen a claim of service connection for psychiatric disorder (claimed as a nervous condition). The veteran's substantive appeal as to these issues was received in February 1998. The United States Court of Appeals, Federal Circuit, reviewing a decision of the U.S. Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1, 1999) (Court), has held that a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, can not be the same claim when it has not been previously considered. Ephraim v. Brown, 82 F. 3d 399, 401 (Fed. Cir. 1996) (Service connection for depressive neurosis versus newly diagnosed post-traumatic stress disorder). It was further held that a claim based on the diagnosis of a new disorder, taken alone or in combination with a prior diagnosis of a related disorder, states a new claim, for the purpose of the jurisdictional requirement, when the new disorder had not previously been diagnosed and considered. Ephraim v. Brown, 82 F.3d at 402. Accordingly, the veteran's claim for service connection for a psychiatric disability, to include dysthymia and PTSD, will be considered on a de novo basis, without regard to finality of the previous determination. By a rating decision issued in July 1999, the RO granted service connection for chronic low back pain, and assigned a 10 percent evaluation for that disability. There is no evidence that the veteran has disagreed with the evaluation or effective date assigned for that grant of service connection, and no issue regarding a claim of entitlement to service connection for chronic low back pain is before the Board. The Board notes that, in regard to the veteran's request to reopen the claim of entitlement to service connection for a left inguinal hernia, the RO, in a January 1999 statement of the case (SOC) determined that the issue was whether the veteran filed timely appeal of an April 1968 rating decision denying the claim. After reviewing all the statements and contentions, including the representative's argument that the veteran is entitled to VA examination to determine the etiology of a left inguinal hernia, that the claim is, in essence, a request to reopen the claim of entitlement to service connection for a left inguinal hernia. The veteran further contends that the additional evidence since April 1968 requires reopening and further development. Thus, the Board finds that the issues on appeal are more accurately stated as reflected on the title page of this decision. FINDINGS OF FACT 1. There is no current medical diagnosis of peripheral neuropathy. 2. There is no medical diagnosis of PTSD. 3. The veteran's claim of entitlement to service connection for a psychiatric disorder, to include dysthymia, is plausible. 4. There is no medical evidence or opinion establishing a nexus or relationship between the veteran's current diagnosis of tinnitus and his period of active military service. 5. An unappealed April 1968 rating decision denied entitlement to service connection for a left inguinal hernia. 6. The veteran's lay statements as to the onset of a left inguinal hernia, submitted since April 1968, are new, but are not competent medical evidence which would be material to the veteran's claim, and those statements are not so significant, by themselves or in conjunction with evidence already of record, that they must be considered in order to fairly determine the merits of the claim. 7. An unappealed April 1968 rating decision denied entitlement to service connection for an eye disorder. 8. The additional evidence submitted since April 1968 is cumulative and redundant, does not bear directly on the issue, and is not so significant, by itself or in conjunction with evidence already of record, that it must be considered in order to fairly determine the merits of the claim for service connection for an eye disorder. 9. The veteran's service-connected skin disability is not currently manifested by any active lesions. 10. An issue of medical complexity or controversy is not shown. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of entitlement to service connection for peripheral neuropathy. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted a well-grounded claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5107(a). 3. The claim of entitlement to service connection for psychiatric disorder to include dysthymia is well grounded. 38 U.S.C.A. § 5107. 4. The veteran has not submitted a well-grounded claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5107(a). 5. The April 1968 rating decision that denied entitlement to service connection for a left inguinal hernia is final. 38 U.S.C.A. § 7105 (West 1991). 6. The additional evidence submitted since April 1968 is not new and material, and the claim for service connection for a left inguinal hernia is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 7. The April 1968 rating decision that denied entitlement to service connection for an eye disorder is final. 38 U.S.C.A. § 7105. 8. The additional evidence submitted since April 1968 is not new and material, and the claim for service connection for an eye disorder is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 9. The criteria for an increased (compensable) evaluation for service-connected multiple verrucae are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7819 (1999). 10. An independent medical opinion is not warranted. 38 C.F.R.§ 20. 901 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he incurred several disorders in service, including a psychiatric disorder, peripheral neuropathy, and tinnitus. He also contends that the severity of his service-connected skin disability has increased. The veteran also contends that he has submitted new and material evidence to reopen claims of service connection for a left inguinal hernia and for an eye disorder. Before a review of the merits of a claim may be undertaken, the veteran must first submit a well-grounded claim. 38 U.S.C.A. § 5107(a). VA then has a duty to assist the claimant in developing facts pertinent to the claim if the claim is determined to be well-grounded. 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist the veteran to develop the evidence as to any well-grounded claim, as mandated by 38 U.S.C.A. § 5107(a), has been fulfilled. There is no indication of additional available evidence that would be relevant to the veteran's well- grounded claims. All relevant facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1153 (West 1991). Service connection may also be granted when certain chronic diseases, including a psychosis or an organic disability of the nervous system, are manifested to a degree of 10 percent disabling within one year of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Alternatively, the United States Court of Appeals for Veterans Claims (Court) has recently indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). Savage v. Gober, 10 Vet. App. 488 (1997). Where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology, the claim is well-grounded. See id. at 498. In order for a service connection claim to be well-grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A final decision is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104(b). In order to reopen a claim, the veteran must present new and material evidence with respect thereto. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a). Under the three-part analysis now required where a claim has been previously denied, the first step is to determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) to reopen the prior claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). If so, the second step requires a determination of whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is not well grounded, the adjudication process must halt, despite reopening, because a claim that is not well grounded cannot be allowed. See Winters, supra. If the claim is well grounded, then VA must ensure that the duty to assist has been fulfilled before proceeding to the third step, which is adjudication of the merits of the claim. In determining whether new and material evidence has been presented, "new" evidence is that which has not previously been submitted to agency decision-makers, and is neither cumulative nor redundant. 38 C.F.R. § 3.156(a); see generally Hodge, supra. "Material" evidence is that which bears directly or substantially on the specific matter under consideration, and which by itself, or in conjunction with other evidence previously submitted, is so significant that it must be considered in order to fairly decide the merits of that claim. Id. Duty to Assist and Procedural Due Process Contentions By statements submitted in October 1997 and thereafter, the veteran's attorney requested an advisory medical opinion, requested a new, thorough, and contemporaneous VA examination, requested that adequate reasons and bases be provided for each determination, requested that the claims file be reviewed in conjunction with the examination, requested opinions as to the etiology of the claimed medical disorders, and requested that examination reports be stated in terms of the VA rating schedule. As an initial matter, the Board notes that all of these contentions are ancillary to the veteran's underlying claims. These contentions are not separately appealable matters. Rather, these contentions pertain to the duty to assist the veteran in the development of the issues currently on appeal. As discussed below, the Board finds that the duty to assist the veteran under 38 U.S.C.A. § 5107(a) has been met. When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA. 38 C.F.R. § 3.328 (1999). Approval for an advisory medical opinion is granted only if the Compensation and Pension Service determines that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion. The veteran has not made any showing that the claims for service connection or the evaluation of the severity of the service-connected skin disorder is complex or controversial, nor does the medical evidence so indicate. The veteran has been afforded several VA examinations. The Board finds that the VA examinations were adequate for rating purposes. The Board finds no evidence to warrant a determination that any claim in this case presents issues of medical complexity or controversy so as to warrant approval of an advisory medical opinion. The request for an advisory medical opinion is denied. The Board finds that this case does not present an issue of medical controversy or complexity; thus, an independent medical opinion is not in order. 38 C.F.R. § 20.901. The Board also notes the contention of the veteran and his representative that the veteran is entitled to a thorough and contemporaneous examination. The veteran was afforded VA examination in April 1997 and July 1998. In addition, the Board notes that the veteran's inpatient and outpatient treatment records from 1987 through 1997 are of record. The reports of examinations reflect that VA examiners recorded past medical history, noted the veteran's current complaints, conducted physical examination, and offered assessment. The Board finds that the examinations afforded, especially when considered in light of the other medical evidence of record, were adequate for rating purposes, and were provided contemporaneous to the veteran's claims. For these reasons, the Board finds that the medical evidence and examinations provided in 1997 and 1998 are adequate for rating purposes. Thorough and contemporaneous examination has been provided, and no further examination is required to satisfy the duty to assist the veteran to develop his claim. 38 U.S.C.A. § 5107(a). Finally, as to the veteran's contention that he is entitled to an adequate explanation of the reasons and bases for the decisions on his claims, the veteran has not identified any specific inadequacy in the prior explanations provided by the RO. Since the veteran and his representative were not specific in raising this very general matter, the Board can only point to the following reasons and bases supporting its decision. However, with respect to the claims that are not well grounded, the Board observes, as it did above, that the veteran is entitled to no additional development by VA. 1. Claim for Service Connection for Peripheral Neuropathy The veteran's service medical records, the report of VA examination conducted in January 1968, the summary of VA hospitalization in June 1987, the report of Agent Orange examination conducted in March 1987, and all other clinical records associated with the file, are silent as to complaints, treatment, or diagnoses of peripheral neuropathy. There is no medical evidence of record that reflects or references any complaint, diagnosis, or treatment of peripheral neuropathy. The veteran was notified, by a copy of a rating decision issued in June 1997, that service connection could not be granted for peripheral neuropathy in the absence of evidence showing that the claimed disorder was present. The veteran contends that he developed peripheral neuropathy as a result of exposure to herbicides during his Vietnam service. The Board notes that special presumptions are applicable where a veteran was exposed to a herbicide agent during active military, naval, or air service, and certain diseases are thereafter incurred. 38 C.F.R. §§ 3.307(a)(6), 3.307(d). Acute and subacute peripheral neuropathy (transient peripheral neuropathy which appears within weeks or months of exposure and resolves within two years of the date of onset) are among the disease which may be service connected, under these circumstances. Although the veteran served in Vietnam during the years referenced in the presumptive service connection provisions, a veteran's exposure to Agent Orange will not be presumed unless he suffers from one of the presumptive diseases listed under 38 C.F.R. § 3.309(e). See McCartt v. West, 12 Vet. App. 164 (1999). The veteran may not be presumed to have been exposed to Agent Orange, and the provisions regarding presumptive service connection are not applicable here, because there is no medical evidence of a diagnosis of peripheral neuropathy at any time. The laws authorizing veterans' benefits provide benefits only where there is current disability. In the absence of evidence of a current medical diagnosis of peripheral neuropathy, service connection may not be granted for peripheral neuropathy. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The veteran has not identified any additional information that might be relevant, nor is VA on notice of the possible existence of such evidence. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). Thus, the Board concludes that the veteran's claim for this disorder must be denied as not well grounded. 2. Claim for Service Connection for A Psychiatric Disorder, To Include PTSD and Dysthymia The veteran's service medical records reflect that the veteran complained of being "nervous and shaky" on one occasion in May 1967. Benadryl capsules were prescribed. No diagnosis was assigned. The service medical records are thereafter silent as to any psychiatric complaints or diagnoses. The psychiatric examiner who conducted a January 1968 VA examination noted that the veteran reported that he became disturbed and shaky following an argument with some civilians while on a leave during service. He reported that he was given some tablets, the symptoms decreased, and he received no further treatment. The veteran's mood and affect were appropriate, he was spontaneous, and there was no evidence of hallucinations, delusions, or other psychiatric symptoms. The veteran reported that he became tense when under pressure. The diagnosis was "situational reaction (by history)." A psychological screening was also conducted, and the examiner who conducted that testing concluded that the veteran appeared moderately depressed in a chronic way. The summary of VA hospitalization in June 1987, and VA outpatient treatment records from April 1987 through February 1997, reflect initial and ongoing treatment for depression. The Board notes that the veteran's initial claim for service connection for a psychiatric disorder, submitted in January 1997, was that he had PTSD. However, the examiner who conducted VA examination in April 1997 assigned diagnoses of dysthymia, recurrent, and adjustment disorder. The examiner commented that, based on the history reported by the veteran, it did not appear that the veteran was depressed prior to his military service, but it appeared that the veteran became depressed during service, and it was clear that the veteran was currently depressed. The examiner further commented that "[t]he link between his military service and subsequent depression is quite hard to discern at this point and time." The examiner recommended further evaluation. A. Analysis of Claim for Service Connection for PTSD The veteran was informed, by June 1997 correspondence which included a copy of the rating decision, that there was no current diagnosis of PTSD, although there was a diagnosis of dysthymia. Service connection for PTSD was denied. 38 C.F.R. § 3.304(f) (1999) provides that service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. The veteran's contention that he has PTSD is the only evidence of record of such a diagnosis. The veteran's lay statement, without supporting competent medical evidence, is not sufficient to establish a well-grounded claim for service connection for PTSD. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The laws authorizing veterans' benefits provide benefits only where there is current disability. In the absence of evidence of a current medical diagnosis of PTSD, service connection may not be granted for PTSD. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The veteran has not alleged that he had ever been diagnosed as having PTSD, and has not identified any additional information that might be relevant to well ground his claim, nor is VA on notice of the possible existence of such evidence. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). Thus, the Board concludes that the veteran's claim for service connection for PTSD must be denied as not well grounded. B. Analysis of Claim for Service Connection for Dysthymia As previously noted, in a notice of disagreement submitted through his representative in October 1997, the veteran contended that service connection for dysthymia had been denied, and that he disagreed with that decision. However, the post service medical evidence of record clearly establishes that the veteran does have a current medical diagnosis of a psychiatric disorder, dysthymia. Moreover, the examiner who conducted the July 1997 VA examination concluded that the veteran developed depression in service. The examiner's conclusion that it was difficult to discern the link between the veteran's military service and his subsequent depression is, in essence, an opinion that such a link is plausible and that the possibility of such a link cannot be ruled out without further evaluation. The question thus becomes whether the veteran has submitted a well-grounded claim. Given the examiner's opinion that a link between the veteran's current dysthymia and depression that developed in service cannot be excluded, the Board finds that the VA examiner's opinion is sufficient to establish a well-grounded claim. 38 U.S.C.A. § 5107(a). However, the examiner clearly stated that further factual development, in the form of further medical evaluation, was required, and the Board agrees. The claim must be returned to the RO for further development, as addressed in the REMAND below. 3. Entitlement to Service Connection for Tinnitus The veteran's service medical records, and the report of VA examination conducted in January 1968, as well as VA outpatient treatment records from 1982 to February 1997, are silent as to complaints, treatment, or diagnosis of tinnitus. By a claim submitted in October 1997, the veteran contended that he incurred tinnitus in service. The examiner who conducted a July 1997 VA examination concluded that the veteran had tinnitus. The examination report is silent as to the onset or etiology of this disorder, other than the notation that the veteran reported, during the July 1997 examination, that ringing in his ears started in service, although he did not seek treatment for that problem. The veteran reported that he attributed the tinnitus to an ear infection he suffered while in service. The examiner did not comment on the etiology or onset of tinnitus, but did note that there were no abnormality of either ear and no evidence of any active ear disease. There is no other evidence of record that reflects or references any complaint, diagnosis, or treatment of tinnitus. There is no medical evidence that the veteran incurred tinnitus in service. The earliest diagnosis of tinnitus in the record is contained in the report of the July 1997 VA examination. This diagnosis comes approximately 30 years after the veteran's service separation. Furthermore, none of the veteran's examiners have linked either the onset or etiology of tinnitus to the veteran's service or to any service-connected disability. The only evidence presented by the veteran that tends to show a connection between tinnitus and his service is his own statements. In this case, the veteran has stated that he had tinnitus continuously since service, but there is no supporting medical or lay evidence. In any event, the veteran's statements as to continuity are not competent evidence to link the current complaints of tinnitus to service. The veteran's lay statement, without supporting competent medical evidence, is not sufficient to establish a well-grounded claim for service connection for tinnitus. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Although the veteran has a current medical diagnoses of tinnitus, there is no medical evidence to suggest that either disorder was manifested during or proximate to service, has been continuous since service, or has a nexus or relationship to the veteran's military service. The veteran was informed, including in a January 1999 SOC, that there was no medical evidence that he developed tinnitus in service or within any applicable presumptive period proximate thereto, and that there was no medical evidence or opinion to link a current diagnosis of tinnitus to his service. The veteran has not identified any additional information that might be relevant, nor is VA on notice of the possible existence of such evidence. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). The claim must be denied as not well grounded. 4. Request to Reopen Claim of Service Connection, Left Inguinal Hernia The veteran's service medical records, including a November 1967 separation examination, are devoid of any reference to, complaint of, diagnosis of, or treatment of, an inguinal hernia. On VA examination conducted in January 1968, a small left inguinal hernia was present. The RO noted that the veteran, who was working as a grocery clerk, did not state that the hernia was present during service, nor did he include a left inguinal hernia among the disorders for which he was seeking service connection when he completed his original application for service connection in November 1967. In contrast, the veteran did list a skin disorder in his November 1967 applications, and, at the time of VA examination, he specifically described a skin disorder as having been present in service. By a rating decision issued in April 1968, service connection for a left inguinal hernia was denied. The veteran was specifically notified that service connection for a left inguinal hernia was denied, by correspondence dated in April 1968. The veteran did not appeal that decision, and it became final. In January 1998, the RO notified the veteran that his October 1997 submissions, which included, in a request for a new compensation examination, reference to a "hernia," did not constitute timely appeal of the 1968 denial of service connection for a left inguinal hernia. The veteran thereafter, through his representative, argued that he was entitled to a VA examination to determine the etiology of a left inguinal hernia. The Board has interpreted these arguments as contentions that new and material evidence had been submitted to reopen a claim for service connection for a left inguinal hernia. The Board notes that, although its analysis of this claim differs from the RO's analysis, remand of the claim is not required. By January 1998 correspondence setting out the date of the previous denial of service connection for a left inguinal hernia, and advising the veteran of the requirement that new and material evidence be submitted to reopen the claim, and by a statement of the case issued in January 1998, the RO advised the veteran of the laws and regulations governing requests to reopen claims, and advised the veteran of the nature of evidence required to constitute new and material evidence. Thus, the veteran is not prejudiced by the Board's review of the issue as recharacterized. The Board notes as well, that, if the veteran's claim is interpreted as an attempt to appeal the April 1968 rating decision, that appeal clearly fails for lack of timely submission. Under the governing provisions, it is clear that disagreement with a rating decision must be submitted no later than one year after the veteran is notified of issuance of the decision. In this case, the record establishes that the veteran was notified of the denial of service connection for left inguinal hernia in April 1968. More than 25 years elapsed before the veteran submitted the claim as to a left inguinal hernia that is now before the Board. Without timely disagreement within one year, timely appeal cannot be made. 38 U.S.C.A. §§ 7105, 7108. The veteran is not harmed by the Board's approach, since the appeal would fail if analyzed under provisions governing timely appeal. To determine whether the veteran has submitted new and material evidence that would allow VA to reopen and readjudicate this claim, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The first step of the three-part analysis now required is to determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) to reopen the prior claim. If so, the second step requires a determination of whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is not well grounded, the adjudication process must halt, despite reopening, because a claim that is not well grounded cannot be allowed. See Winters, supra. If the claim is well grounded, then VA must ensure that the duty to assist has been fulfilled before proceeding to the third step, adjudication of the merits of the claim. In determining whether new and material evidence has been presented, "new" evidence is that which has not previously been submitted to agency decision-makers, and is neither cumulative nor redundant. See 38 C.F.R. § 3.156(a); see generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "Material" evidence is that which bears directly or substantially on the specific matter under consideration, and which by itself, or in conjunction with other evidence previously submitted, is so significant that it must be considered in order to fairly decide the merits of that claim. Id. New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered by the RO in reaching the April 1968 rating decision included the veteran's service medical records, his November 1967 original application for compensation, the report of VA examination conducted in January 1968, and the veteran's statements in connection with and during that examination. The evidence submitted since April 1968 includes additional statements by the veteran, the report of VA examination conducted in April 1997, and VA clinical records from 1982 through 1997. Those clinical records, including the report of Agent Orange examination conducted in 1987, reflect continued findings of a left inguinal hernia. The veteran's contention that he first developed a left inguinal hernia in service is "new" evidence, in that the veteran did not make that contention in his original application for compensation, during VA examination, or prior to or at the time of the April 1968 rating decision. However, the veteran's lay statement is not competent medical evidence to establish that the disorder was present prior to service separation, since there is no evidence that the disorder was observable by a lay person. Thus, the veteran's statements as to the date of onset of a left inguinal hernia are not "competent" evidence, and thus are not material evidence sufficient to establish a well-grounded claim for service connection for a left inguinal hernia. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When the fact asserted is beyond the competence of the person making the assertion, as here, where the veteran's statement as to onset of that medical disorder is beyond his competence, the Board need not presume the statement credible for purposes of determining whether the claim is well-grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). Consequently, the Board finds that the evidence received since the April 1968 rating decision regarding the claim for service connection for a left inguinal hernia does not bear directly and substantially upon the specific matter under consideration and is so insignificant as to not warrant reconsideration of the merits of the claim on appeal. As the evidence received since the April 1968 rating decision to deny service connection for a left inguinal hernia is not new and material, it follows that the claim for service connection for a left inguinal hernia is not reopened. 5. Request to Reopen Claim of Service Connection, Eye Disorder The veteran's service medical records reflect that distance vision was 20/20 bilaterally at the time of an April 1965 examination for service induction. In February 1966, the veteran reported poor depth perception on a driver test. The clinical record reflects that the veteran's vision was 20/20, states that there was "no depth on AFVT," states that there was no subjective complaint regarding depth perception, and concludes that "no Rx" is indicated. However, it is not clear whether this notation means that the veteran had no depth perception or that the vision testing administered did not measure depth perception. The veteran's visual acuity remained 20/20 in each eye at the time of service separation examination conducted in November 1967. On VA examination conducted in January 1968, the veteran complained of faulty depth perception. His central vision was 20/20 in each eye. The eye examination was essentially negative. In the absence of medical evidence of an eye disability, the claim of service connection for an eye disability was denied by a rating decision issued in April 1968. That rating decision was not appealed, and became final. In January 1998, the RO notified the veteran that new and material evidence was required to reopen a claim for service connection for an eye disorder, as that claim had been denied in April 1968. Initially, the Board notes that, when the RO reviewed the veteran's request to reopen these claims in 1997, the request was reviewed under a standard which has since been overruled by the United States Court of Appeals for the Federal Circuit. See Hodge, supra. However, although the RO did not consider the veteran's request to reopen his claim under the current case law, the Board finds that, under the circumstances of this case, there has been no prejudice to the veteran that would warrant a remand pursuant to Bernard v. Brown, 4 Vet. App. 384 (1993). To return the case to the RO to cure a deficiency in the statement of the case would not result in a determination more favorable to the veteran than the Board's decision herein as to any of these claims, nor change the current analysis as provided by the Board. In particular, as there is no medical evidence of a current eye disorder, the veteran's request to reopen the claim for service connection for an eye disorder will fail, under either analysis. See Winters, supra; VAOPGCPREC 16-92 (1992). The Board concludes, therefore, that the veteran's procedural rights have not been abridged by this omission and will proceed accordingly with appellate review. See Bernard, 4 Vet. App. at 393. The additional medical evidence obtained since the 1968 decision does not include a medical diagnosis of a current eye disorder. The Board notes that the veteran asserted, in a December 1996 statement, that his "eye disability" was worse because he had to replace his lenses every six months, and he noted that he was treated by a private ophthalmologist. However, the veteran did not identify the private ophthalmologist, nor did he submit those records. Moreover, the veteran did not allege that the ophthalmologist had told him that a current eye disorder was related to his service. The only "new" evidence regarding a relationship between the veteran's service and an eye disorder is the veteran's statement that his eye disorder "dates back to my service in Viet Nam." The additional evidence is, therefore, cumulative of the veteran's assertions already of record, and thus, not "new," since the medical evidence is unchanged. The additional medical evidence, including VA outpatient and inpatient treatment records covering many years, includes no notation as to a history or diagnosis of an eye disorder. While this evidence is "new" in the sense that it has not been previously considered, it is not material because it contains no objective findings that the claimed disability, an eye disorder, was incurred or aggravated in service, was manifested proximate to service, or has been continuous since service. The additional evidence is not "material" since it does not assist in proving the matter at issue; to the extent that the additional evidence bears directly on the issue of service connection, it tends to disprove the veteran's claim. Accordingly, the Board concludes that the evidence submitted subsequent to the April 1968 rating decision is not "new and material" as contemplated by 38 C.F.R. § 3.156(a), and provides no basis to reopen the veteran's claim for entitlement to service connection for an eye disorder. The Board further notes that evidence of record as a whole, including the additional evidence, is still insufficient to establish a well-grounded claim of entitlement to service connection for an eye disorder. In particular, there is no medical evidence of a current diagnosis of an eye disorder. 6. Claim for Compensable Evaluation for Skin Disability The veteran's service medical records are silent as to any skin disorder. On VA examination conducted in January 1968, the veteran reported the onset of genital warts in service. The examiner diagnosed verrucae, multiple, supra-pubic area. Based on the veteran's assertion that the warts first appeared during service, the RO, by an April 1968 rating decision, granted service connection for that disorder and assigned a noncompensable disability evaluation. That evaluation has remained in effect, unchanged. The veteran contends that his skin disorder is more severely disabling than the noncompensable evaluation reflects. A well-grounded claim of entitlement to an increased evaluation for a service-connected disability may be established by an allegation that the disability has increased in severity. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Thus, the claim for an increased (compensable) evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. 38 C.F.R. §§ 4.1, 4.2, 4.41; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). By a claim submitted in January 1997, the veteran contended that he had six to eight warts removed each time he was treated. The veteran was afforded VA examination in April 1997. At that time, the veteran reported having several lesions removed with liquid Nitrogen. The examiner noted that the lesions most recently removed were on the arms and hands, and were not related to the service-connected disorder, suprapubic verrucae. The examiner concluded that the veteran had a remote history of verruca, "long since removed by dermatologist." No photographs were taken since no lesions were evident. The veteran, through his representative, requested a new examination. The veteran was scheduled for an examination in February 1998, but the veteran's representative objected to the examiner, on the basis that the examiner had previously examined the veteran, and advised the veteran not to attend the examination. Thus, any additional clinical information that might have been developed at this examination is not available. The veteran has not submitted or identified any additional VA or private clinical records relevant to this claim. By a statement of the case issued in March 1998, the veteran was notified of the effect of his failure to report, and was offered the opportunity to submit additional evidence. The Board must decide the claim on the evidence of record. 38 C.F.R. § 3.655(b) (1999). There is no medical evidence that the veteran's service- connected skin disability, verrucae of the suprapubic area, has resulted in any residual disability or is active at this time. In the absence of evidence of any residual disability due to this service-connected disorder, there is no evidence that an increased evaluation is available under the diagnostic code currently used to evaluate that disorder, 38 C.F.R. § 4.118, Diagnostic Code 7819, or under any other diagnostic code, or that consideration of any other regulation provision is appropriate. See, e.g., 38 C.F.R. § 3.321(b)(1) (1999). Therefore, the preponderance of the evidence is against an increased (compensable) evaluation for a skin disorder. Because the evidence as to whether the next higher evaluation may be assigned is not in equipoise, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. ORDER Entitlement to service connection for peripheral neuropathy is denied. Entitlement to service connection for PTSD is denied. The claim of service connection for a psychiatric disorder, to include dysthymia, is well grounded. Entitlement to service connection for tinnitus is denied. New and material evidence having not been submitted, the application to reopen a claim entitlement service connection for a left inguinal hernia is denied. New and material evidence having not been submitted, the application to reopen a claim of entitlement to service connection for an eye disorder is denied. Entitlement to an increased (compensable) evaluation for a service-connected skin disability is denied. REMAND The medical evidence and opinion of record, as discussed above, establishes that the veteran's claim that he incurred dysthymia in service is plausible, i.e., well grounded. 38 U.S.C.A. § 5107(a). Once the claimant has established a well-grounded claim, VA must assist the claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F. 3d 1464 (Fed. Cir. 1997). In this regard, the Board finds that additional factual development is required. The RO should advise the veteran of the evidence he must submit to prove his claim for service connection for dysthymia. The RO should afford necessary examinations and obtain any necessary expert opinion. Accordingly, the claim is REMANDED to the RO for the following actions: 1. The veteran should be offered the opportunity to identify any sources of post-service clinical evidence regarding onset or continuity of dysthymia, including, but not limited to, clinical records proximate to service. 2. The veteran should also be offered the opportunity to identify or submit alternative types of evidence to establish psychiatric disorder post- discharge, such as employment, insurance, or education-related medical examinations, reports of observation of friends, co-workers, or fellow servicemen, counseling records, and the like. 3. The veteran should also be offered the opportunity to obtain medical opinion as to the onset or etiology of a psychiatric disorder in writing. 4. All VA medical records, from April 1997 to the present, which might be relevant to the veteran's claims for service connection for dysthymia, must be obtained. The veteran should be offered the opportunity to identify or submit any private medical records that might be relevant, or any VA clinical records that might be relevant which have not yet been associated with the file. 5. The veteran should be afforded a VA psychiatric examination by a physician who has not previously examined the veteran. The claims file and a copy of this decision should be made available to the examiner prior to the request examination. The examiner is requested to review the veteran's claims file, including service medical records, VA examination reports and private and VA medical records and statements. This physician should then examine the veteran and the examiner should discuss the veteran's in-service and post-service clinical history. Any diagnostic tests or studies necessary should be completed and all clinical manifestations should be reported in detail. The examiner should render an opinion, with supporting analysis, as to whether it is at least as likely as not that a psychiatric disorder, to include dysthymia, if present, was incurred during service or as a result of service. The physician should include a complete rationale for all opinions and conclusions expressed and the examiner is specifically asked to address the opinions and conclusions expressed in the VA examiner's July 1997 examination report. 6. After all development requested has been accomplished, the RO should readjudicate the claim. If the benefit sought remains denied, the RO should ensure that the veteran and his representative are furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). D.J. DRUCKER Acting Member, Board of Veterans' Appeals