Citation Nr: 0000153 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 96-11 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for lupus, claimed as due to exposure to herbicide agents. 3. Entitlement to service connection for headaches. 4. Entitlement to service connection for a disorder manifested by pain and tingling in the extremities. 5. Whether new and material evidence has been presented to reopen a claim for service connection for hearing loss. 6. Whether new and material evidence has been presented to reopen a claim for service connection for a duodenal ulcer. 7. Entitlement to an increased (compensable) rating for benign premature heartbeats. 8. Entitlement to an increased (compensable) rating for a lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from November 1966 to November 1969, and from June 1971 to June 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 1995 by the Department of Veterans Affairs (VA) Winston-Salem, North Carolina, Regional Office (RO). The Board notes that the veteran has made arguments pertaining to a claim for compensation for defective vision. That issue, however, has not been developed or certified for appellate review. Further, it appears from the hearing testimony that the veteran is raising a claim of entitlement to service connection for chloracne as due to exposure to Agent Orange. This matter also has not been developed for appellate review. Accordingly, the Board refers these issues to the RO for any appropriate action. The Board has found that additional development of evidence is required with respect to the claims for increased ratings for benign premature heartbeats and a lumbosacral strain. Accordingly, those issues are the subject of a remand located at the end of this decision. FINDINGS OF FACT 1. The preponderance of the medical evidence shows that the veteran does not have post-traumatic stress disorder. 2. The veteran has not presented any competent evidence linking a current diagnosis of lupus to his period of service or to exposure to herbicide agents. 3. The veteran has not presented any competent evidence linking a current diagnosis of headaches to his period of service or to a service-connected disability. 4. The veteran has not presented any competent evidence linking any current disorder manifested by pain and tingling in the extremities to his period of service or to a service- connected disability. 5. The RO denied the veteran's claim for service connection for hearing loss in November 1988, and the veteran did not file an appeal. 6. The additional evidence presented since November 1988 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for hearing loss. 7. The RO denied the veteran's claim for service connection for a duodenal ulcer in November 1988, and the veteran did not file an appeal. 8. The additional evidence presented since November 1988 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for a duodenal ulcer. CONCLUSIONS OF LAW 1. Post-traumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.304(f) (1999). 2. The claim for service connection for lupus, claimed as due to exposure to herbicide agents, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The claim for service connection for headaches is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 4. The claim for service connection for a disorder manifested by pain and tingling in the extremities is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 5. The decision of November 1988 which denied service connection for hearing loss is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 6. The additional evidence presented since November 1988 is not new and material, and the claim for service connection for hearing loss has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 7. The decision of November 1988 which denied service connection for a duodenal ulcer is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 8. The additional evidence presented since November 1988 is not new and material, and that claim for service connection for a duodenal ulcer has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reviewing any claim for VA benefits the initial question is whether the claim is well grounded. The veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded." See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). If not, the claim must be denied and there is no further duty to assist the veteran with the development of evidence pertaining to that claim. See 38 U.S.C.A. § 5107(a) (West 1991). In order for a claim for service connection to be well grounded, there must be competent evidence of current disability, of incurrence or aggravation of a disease or injury in service, and a nexus between the in-service injury or disease and the current disability. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Competent medical evidence is also required to satisfy the medical etiology or medical diagnosis issues in secondary service connection claims. See Libertine v. Brown, 9 Vet. App. 521, 522 (1996). The nexus to service may also be satisfied by the presumption noted above. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). I. Entitlement To Service Connection For Post-Traumatic Stress Disorder. A claim for service connection for post-traumatic stress disorder is well grounded if a claimant has submitted medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability. See Cohen v. Brown, 10 Vet. App. 128, 137 (1997). The veteran has presented an account of a stressor in service and competent medical evidence showing that he has a diagnosis of post-traumatic stress disorder based on a claimed stressor. Therefore, the Board finds that the claim for service connection for post-traumatic stress disorder is well grounded. The Board also finds that all relevant evidence necessary for resolution of the issue has been obtained. The veteran's medical treatment records have been obtained, and he has been afforded a disability evaluation examination. He has also been afforded a personal hearing. In general, service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be granted for disease which is diagnosed after discharge from military service, when all of the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Establishing service connection for PTSD requires a greater evidentiary showing than that necessary to well ground the claim. Establishing service connection for PTSD requires (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998); Cohen, 10 Vet. App. at 138. The evidence required to support the occurrence of an in- service stressor varies "depending on whether or not the veteran was 'engaged in combat with the enemy' . . . . Where . . . VA determines that the veteran did not engage in combat with the enemy . . . the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor." Zarycki, 6 Vet. App. at 98 (citations omitted). The requisite additional evidence may be obtained from sources other than the veteran's SMRs. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table). Prior to March 7, 1997, governing regulations provided 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. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f). However, on June 18, 1999 and retroactive to March 7, 1997, that regulation was amended to read as follows: Service connection for PTSD requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter, a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed inservice stressor actually occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances, conditions, and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of this part and the claimed stressor is related to that prisoner-of- war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f) (effective March 7, 1997). Pursuant to Karnas v. Derwinski, 1 Vet. App. 308 (1991), where a law or regulation changes after the claim has been filed or reopened before administrative or judicial review has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. The medical evidence which is in favor of the claim consists of a private medical record dated in July 1995 from Edwin W. Hoeper, M.D., which shows that the veteran reported a history of being in Vietnam in 1968 and 1969, and of having been shot at a lot. He said that this started to affect him around 1981, and that he had nightmares all of the time. He said that he would wake up out of breath and sweating. He also said that he startled easily. The impression was post- traumatic stress disorder. Other records, however, reflect that the veteran does not have post-traumatic stress disorder. The report of a psychological examination of the veteran conducted in June 1995 by a fee basis examiner shows that the veteran was evaluated based on self report, a copy of the DD 214 supplied by the veteran, and psychological tests. The veteran reported that his most traumatic memory from Vietnam was an incident in which he was stopped by enemy soldiers while driving a truck, but later released. The veteran also said that he did not experience significant direct combat, but was frequently caught in ambushes and sniper fire. He said that he was married and had three children. He spent his free time working on projects around the house. He was active in his church, but did not initiate close relationships with others. He said that he had occasional suicidal ideation. He also said that he planned to work as long as possible, and felt fortunate to have a good paying job. He reported that he had seen movies about Vietnam and that they brought back bothersome memories. He said that he had never visited the Vietnam Veterans Memorial in Washington DC, but said that he would like to do so. During the examination, there was no evidence of agitation or arousal. Insight and judgment appeared to be intact. His thinking was devoid of overtly suspicious or delusional self critical components. The psychology examination report further shows that testing failed to confirm a diagnosis of post-traumatic stress disorder. On the MMPI-2, the veteran produced a clinically invalid profile endorsing overt psychotic items. This pattern reportedly was often seen in individuals seeking secondary gain from the evaluation process. Therefore, the examiner concluded that elevated scores on the experimental PTSD "PK" scale and Mississippi Scale for Combat related PTSD were of limited utility. Moreover, evidence of significant agitation, arousal and avoidance as required by the DSM-IV criterion for PTSD were not present in the results. The only diagnostic impression was dysthymic disorder. Similarly, the report of a post-traumatic stress disorder examination conducted by the VA in July 1995 shows that on examination the veteran was neatly dressed in causal clothing. He appeared alert and pleasant. He gave a history of symptoms of sleep disturbance, nightmares, frequent waking, difficulty concentrating and periods of anxiety and tension. Verbal productivity, orientation, memory, insight, and judgment appeared adequate. The diagnosis was (1) depressive disorder NOS, and (2) PTSD not diagnosed on this examination. The Board finds that the evidence which weighs against the claim is more credible that the evidence which supports the claim. In this regard, the Board notes that the VA examiners based their opinions not only on examination of the veteran but also on extensive testing. Furthermore, the VA examination reports contain substantially more history and findings that the relatively short private medical record. Thus, the preponderance of the evidence shows that the veteran does not have post-traumatic stress disorder. Accordingly, the Board concludes that post-traumatic stress disorder was not incurred in or aggravated by service. II. Entitlement To Service Connection For Lupus, Claimed As Due To Exposure To Herbicide Agents. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). If a chronic disorder such as arthritis or systemic lupus erythematosus is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a) (1999). This regulation has been interpreted by the United States Court of Appeals for Veterans Claims (Court) to allow service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice-connected disorder by a service- connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). Regarding Agent Orange exposure, the Board notes that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii) (1999). 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 U.S.C.A. § 1116, 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 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See 38 C.F.R. § 3.309(e) (1999). The Secretary of the Department of Veterans Affairs has determined that 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. 341-346 (1994). See also 61 Fed. Reg. 57586-57589 (1996). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). However, as will be discussed below, where the issue involves such a question of medical causation, competent evidence which indicates that the claim is plausible is required to set forth a well-grounded claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) The veteran testified at the hearing held in June 1999 that he believed that the lupus developed as a result of exposure to Agent Orange in service. After considering all of the evidence of record, the Board finds that the veteran has not presented competent evidence to support his contentions. Regarding the contention that the veteran's disability resulted from exposure to herbicides, the Board notes initially that the disability for which he seeks compensation is not among the diseases which may be presumed to have been due to exposure to herbicides in Vietnam. Furthermore, the veteran has not presented any medical opinion showing a link between his disability and herbicide exposure. Therefore, he has not presented a well-grounded claim for service connection based on a theory that the disease was due to herbicide exposure. See Tidwell v. West, 11 Vet. App. 242 (1998). The medical treatment records pertaining to the claimed disability do not contain any indication that the disorder is related to the veteran's period of service or to any exposure to an herbicide agent during service. The report of an Agent Orange examination conducted by the VA in November 1994 shows that the veteran reported that he had been in areas of Vietnam that had been sprayed with herbicides and that there was a possibility that he had been exposed to herbicides through consuming food and drink. The veteran related several disabilities to Agent Orange exposure, including lupus. The examiner prescribed a medication, but did not offer an opinion linking the lupus to the Agent Orange exposure. Similarly, the report of a dioxin exposure examination conducted by the VA in July 1995 shows that the veteran gave a history of having been in areas of Vietnam which had been sprayed by Agent Orange. He also said that he had a chronic recurrent hyperpigmented rash on his torso and had a skin biopsy in 1992. The lesions were supposedly typical of discoid lupus. On the VA examination, there were scattered hyperpigmented patches measuring anywhere from .5 to 2 centimeters in diameter on the back, torso and the forearm. The pertinent diagnosis was cutaneous lupus. The examiner, however, did not give any indication that he believed that the lupus was related to the Agent Orange exposure. The fact that the veteran's own account of the etiology of his disability was recorded in his medical records is not sufficient to support the claim. In LeShore v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. The Board has considered the veteran's testimony in which he expressed his own opinion that there was a relationship between his lupus and his exposure to Agent orange in service. However, the Court has held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). See also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), in which the Court held that a veteran does not meet his burden of presenting evidence of a well-grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer medical opinions. In summary, the veteran has not presented any competent evidence linking his current lupus to his period of service or to exposure to herbicide agents. Accordingly, the Board concludes that the claim for service connection for lupus, claimed as due to exposure to herbicide agents, is not well- grounded. III. Entitlement To Service Connection For Headaches. The veteran and his wife testified during the hearing held in June 1999 that the veteran had bad headaches, and his wife said that she believed that a doctor had told her that the headaches were related to his service-connected heart disorder. The veteran's own testimony regarding a medical issue such as the cause of a medical disorder is not enough to support a claim. Moreover, the veteran has not presented any competent evidence linking any current headaches to his period of service or to a service-connected disability. Accordingly, the Board concludes that the claim for service connection for headaches is not well-grounded. The Board notes that the veteran may at any time submit a medical statement from the treating physician referred to in his testimony for the purpose of demonstrating that his service-connected heart disorder caused his headaches. IV. Entitlement To Service Connection For A Disorder Manifested By Pain And Tingling In The Extremities. The veteran testified during the hearing held in June 1999 that he experienced symptoms such as his hands and feet going to sleep. He said that there was a tingling sensation. The veteran expressed his opinion that the tingling was secondary to the ineffectiveness of his heart due to his service- connected heart disorder. Significantly, however, the veteran has not presented any competent evidence linking any current disorder manifested by pain and tingling in the extremities to his period of service or to a service-connected disability. The Board also notes that the veteran has not been diagnosed as having acute or subacute peripheral neuropathy. Therefore, the Agent Orange presumption pertaining to those disorders is not applicable. Accordingly, the Board concludes that the claim for service connection for a disorder manifested by pain and tingling in the extremities is not well-grounded. V. Whether New And Material Evidence Has Been Presented To Reopen A Claim For Service Connection For Hearing Loss. The RO denied the veteran's claim for service connection for hearing loss in November 1988, and the veteran did not file an appeal. The evidence which was considered at that time included the veteran's service medical records which the RO characterized as showing normal hearing throughout. Also of record was the report of an audiological evaluation conducted by the VA in August 1988, which shows that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 30 35 LEFT 10 15 20 30 40 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 in the left ear. The diagnoses were right ear slight high frequency hearing impairment, and left ear high frequency hearing impairment. In the decision of November 1988, the RO found that the claimed hearing loss had not been shown to be related to service. The veteran was notified of that decision and of his right to file an appeal, but he did not do so and the decision became final. In order to reopen a claim which was denied previously, a claimant must present new and material evidence. See 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" means evidence not previously submitted to the agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156 (1999). When determining whether new and material evidence has been presented to reopen a claim, the VA considers the evidence presented since the most recent decision in which the claim was denied on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). In the present case, the most recent decision which denied the veteran's claim on any basis was the November 1988 decision. The reopening standard calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. See Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998); Fossie v. West, 12 Vet. App. 1 (1998). If no new and material evidence is presented to reopen the claim, the prior denial remains final. See 38 U.S.C.A. § 7105 (West 1991). The additional evidence which has been presented includes testimony given by the veteran during a hearing held in June 1999. He stated that he first started having problems with his hearing while he was in Vietnam due to the noise from rounds going off. He said that his ears started ringing. He also said that he did not recall getting treated while he was over there because they did not have time to do anything like that. The veteran's wife testified that he had to turn the television up loud and that he had trouble hearing when using the phone. The Board finds that the additional evidence presented since November 1988 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for hearing loss. What was lacking previously and is still lacking is competent medical evidence linking the veteran's hearing loss to service. Therefore, the additional evidence presented since November 1988 is not new and material, and the claim for service connection for hearing loss has not been reopened. Accordingly, the decision of November 1988 which denied service connection for hearing loss remains final. VI. Whether New And Material Evidence Has Been Presented To Reopen A Claim For Service Connection For A Duodenal Ulcer. The RO denied the veteran's claim for service connection for a duodenal ulcer in November 1988, and the veteran did not file an appeal. In the decision, the RO found that the claimed ulcer had pre-existed service, and that there were no current manifestations. The evidence which was of record at that time included the veteran's service medical records. A record dated in November 1987 shows that the veteran had a history of having a peptic ulcer when he was in his teens with no recurrence since then except that he had recently noted some epigastric aching. An upper GI series was performed and showed a small 2 millimeter duodenal ulcer. Also of record was the report of a disability evaluation examination conducted by the VA in August 1988. The report shows that the veteran stated that he had a duodenal ulcer and was taking medication to prevent ulcer attacks. On examination, the abdomen felt soft and flat. There were no masses and no tenderness. The pertinent diagnosis was history of duodenal ulcer - not found. In the decision of November 1988, the RO concluded that the veteran's duodenal ulcer pre-existed service and, in the complete absence of current manifestations, it was held that permanent aggravation of the condition had not been shown. The veteran was notified of the decision and of his right to file and appeal; however, he did not do so and the decision became final. The additional evidence which has been presented includes testimony given by the veteran during a hearing held in June 1999. He stated that he first started having problems with an ulcer when he was in basic training. He said that he had been taking medication since then. He said that they (presumably referring to his treating physicians) called it acid reflux and ulcer disease. There is still no current medical evidence showing that the veteran has an active duodenal ulcer. Although a post- service medical record from a military medical facility dated in October 1993 shows that the diagnosis was questionable peptic ulcer, a subsequent record dated later in October 1993 shows that the only diagnosis was probable GERD (gastroesophageal reflux disease). Thus, an ulcer was not ultimately diagnosed. The VA Agent Orange examination conducted in July 1995 shows that the veteran reported complaints, but the digestive system was normal on examination, and ulcer was only diagnosed "by history". Similarly, VA medical treatment records show that the veteran takes medications and has a history of having an ulcer, but no current objective findings reflecting the presence of an active duodenal ulcer have been noted in recent years. The Board finds that the additional evidence presented since November 1988 is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for a duodenal ulcer. Therefore, the additional evidence presented since November 1988 is not new and material, and that claim for service connection for a duodenal ulcer has not been reopened. Accordingly, the Board concludes that the decision of November 1988 which denied service connection for a duodenal ulcer remains final. ORDER 1. Service connection for post-traumatic stress disorder is denied. 2. Service connection for lupus, claimed as due to exposure to herbicide agents, is denied. 3. Service connection for headaches is denied. 4. Service connection for a disorder manifested by pain and tingling in the extremities is denied. 5. New and material has not been presented to reopen a claim for service connection for hearing loss and therefore, the appeal is denied. 6. New and material evidence has not been presented to reopen a claim for service connection for a duodenal ulcer and therefore, the appeal is denied. REMAND The Court has held that a mere allegation that a service- connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has presented a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that additional evidence is necessary for equitable resolution of the issue on appeal has been obtained. The veteran has not been afforded disability evaluation examinations specifically for the purpose of evaluating his heart disorder and his lumbosacral sprain. The only physical examination which has been conducted in connection with his current claims was the herbicide exposure examination conducted by the VA in July 1995. The examination, however, does not contain the extensive information necessary to properly evaluate the veteran's heart disorder and lumbosacral strain. The Board also notes that the veteran's heart disease has been evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7011. Subsequent to filing his claim, the rating schedule for determining the disability evaluations to be assigned for disorders of the cardiovascular system were changed, effective January 12, 1998. See 62 Fed. Reg. 65207-65224 (December 11, 1997). Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Because the revised regulations in this case do not allow for their retroactive application prior to January 12, 1998, the new provisions may not be applied prior to that date. Rhodan v. West, 12 Vet. App. 55 (1998). In other words, the evidence dated prior to January 12, 1998, must be reviewed only in light of the old regulations, but the evidence dated after January 12, 1998, must be reviewed under both the old and newly revised regulations, using whichever version is more favorable to the veteran. Another VA examination is necessary in order to obtain the information needed to evaluate the veteran's heart disorder under the revised criteria. Regarding the veteran's lumbosacral strain, the Board notes that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (1999). The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45 (1999). It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. See 38 C.F.R. § 4.59 (1999). Another orthopedic examination is need to assess these factors. As a final note, the Board observes that the veteran, at the June 1999 personal hearing, requested that the VA examinations be scheduled at the Hampton VA Medical Center. As the veteran's request is of record, the RO is requested to note the veteran's preference in this regard. Therefore, to ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers who have recently treated the veteran for his benign premature heart beats or his lumbosacral strain. After securing the necessary release, the RO should obtain these records. 2. The veteran should be afforded a VA cardiology examination and an orthopedic examination to determine the current severity of his benign premature heart beats and his lumbosacral strain. The claims folder should be made available to the examiners for review before the examinations. The cardiology examination report should include all findings necessary to evaluate the veteran's heart disorder under both the old and new rating criteria. The orthopedic examiner should specifically note whether there is functional loss due to weakness, fatigability, incoordination, pain on movements, or when the back is used repeatedly over time. The examiner should attempt to quantify the degree of additional impairment, if any, during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). 3. The RO should review the examination report to determine if it is in compliance with this REMAND. If deficient in any manner, it should be returned, along with the claims file, for immediate corrective action. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). S. L. KENNEDY Member, Board of Veterans' Appeals