Citation Nr: 0809698	
Decision Date: 03/24/08    Archive Date: 04/09/08

DOCKET NO.  05-25 106	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUES

1.  Entitlement to an increased rating for a lumbosacral 
strain with herniated pulposus at L4/5, currently rated as 20 
percent disabling.

2.  Whether new and material evidence has been received to 
reopen a service connection claim for an anxiety disorder 
(also claimed as fatigue and sleep disturbances).

3.  Whether new and material evidence has been received to 
reopen a service connection claim for multiple joints pain 
(also claimed as muscle/joint pain).  

4.  Whether new and material evidence has been received to 
reopen a service connection claim for irritable bowel 
syndrome (IBS) (also claimed as gastrointestinal ailments and 
a stomach condition).  

5.  Entitlement to an increased rating for recurrent bladder 
infections, currently rated as 0 percent disabling.

6.  Entitlement to a higher initial rating for migraine 
headaches, currently rated as 10 percent disabling.

7.  Entitlement to service connection for leishmaniasis.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Prem, Counsel


INTRODUCTION

The veteran served on active duty from September 1988 to 
September 1992.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from rating decisions by a Regional Office (RO) of 
the Department of Veterans Affairs (VA).  Notices of 
disagreement were received in February 2004 and September 
2004, a statement of the case was issued in April 2005, and a 
substantive appeal was received in July 2005.   

The Board notes that the veteran's previous claim for service 
connection for leishmaniasis was denied in January 1998.  She 
submitted a March 1998 notice of disagreement in which she 
indicated her disagreement with the decision.  However, the 
RO's December 1998 statement of the case failed to list 
leishmaniasis as an issue.  As such, the January 1998 rating 
decision never became final as to this issue.  Consequently, 
the claim does not need to be reopened; and it can be decided 
under a merits analysis (the veteran does not need to submit 
new and material evidence).  

The veteran indicated a desire to testify at a Board hearing; 
however, she then withdrew her hearing request in a July 2005 
correspondence.  

The issues of entitlement to higher ratings for migraine 
headaches and bladder/urinary tract infections; as well as 
the issue of entitlement to service connection for 
leishmaniasis are addressed in the REMAND portion of the 
decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The veteran's service-connected lumbosacral strain with 
herniated pulposus at L4/5 not manifested by forward flexion 
of the thoracolumbar spine 30 degrees or less; favorable 
ankylosis of the entire thoracolumbar spine; or 
incapacitating episodes having a total duration of at least 
four weeks, but less than six weeks during the past 12 
months.   

2.  By rating decision in January 1998, the RO denied the 
veteran's claim for service connection for fatigue and 
insomnia as due to an undiagnosed illness; the veteran did 
not file a substantive appeal.

3.  Evidence received since the January 1998 rating decision 
raises a reasonable possibility of substantiating the claim 
of service connection for fatigue and insomnia.  

4.  By rating decision in January 1998, the RO denied the 
veteran's claim for service connection for multiple joint 
pains involving the arms, shoulders, and wrists as due to an 
undiagnosed illness; the veteran did not file a notice of 
disagreement.

5.  Evidence received since the January 1998 rating decision 
does not, by itself or in conjunction with the evidence 
previously assembled, raise a reasonable possibility of 
substantiating the claim of service connection for multiple 
joint pains involving the arms, shoulders, and wrists.  

6.  By rating decision in January 1998, the RO denied the 
veteran's claim for service connection for a stomach 
condition as due to an undiagnosed illness; the veteran did 
not file a notice of disagreement.  

7.  Evidence received since the January 1998 rating decision 
raises a reasonable possibility of substantiating the claim 
of service connection for a stomach disability.  


CONCLUSIONS OF LAW

1.  The criteria for entitlement to a disability evaluation 
in excess of 20 percent for the veteran's service-connected 
lumbosacral strain with herniated pulposus at L4/5 have not 
been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
Part 4, including § 4.7 and Codes 5235 to 5243 (2007).

2.  Evidence pertaining to the service connection claim for 
an anxiety disorder (also claimed as fatigue and insomnia) 
since the January 1998 rating decision is new and material; 
accordingly, that claim is reopened.  38 U.S.C.A. § 5108 
(West 2002); 38 C.F.R. § 3.156 (2007). 

3.  Evidence pertaining to the service connection claim for 
multiple joint pains involving the arms, shoulders, and 
wrists since the January 1998 rating decision is not new and 
material; accordingly, that claim is not reopened.  38 
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 

4.  Evidence pertaining to the service connection claim for 
IBS (also claimed as gastrointestinal ailments and a stomach 
condition) since the January 1998 rating decision is new and 
material; accordingly, that claim is reopened.  38 U.S.C.A. 
§ 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant of the information 
and evidence not of record that is necessary to substantiate 
a claim, which information and evidence VA will obtain, and 
which information and evidence the claimant is expected to 
provide.  38 U.S.C.A. 
§ 5103(a).  VA must request that the claimant provide any 
evidence in the claimant's possession that pertains to a 
claim.  38 C.F.R. § 3.159.

The notice requirements apply to all five elements of a 
service connection claim: 1) veteran status; 2) existence of 
a disability; (3) a connection between the veteran's service 
and the disability; 4) degree of disability; and 5) effective 
date of the disability.  Dingess v. Nicholson, 19 Vet. App. 
473 (2006).

The notice must be provided to a claimant before the initial 
unfavorable adjudication by the RO.  Pelegrini v. Principi, 
18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), 
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

The RO provided the appellant pre-adjudication notice by a 
letter dated April 2004.  

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008).   
Further, if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Vazquez-Flores, slip op. at 5-6. 

In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the 
United States Court of Appeals for the Federal Circuit held 
that any error by VA in providing the notice required by 38 
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed 
prejudicial, and that once an error is identified as to any 
of the four notice elements the burden shifts to VA to 
demonstrate that the error was not prejudicial to the 
appellant.  The Federal Circuit stated that requiring an 
appellant to demonstrate prejudice as a result of any notice 
error is inconsistent with the purposes of both the VCAA and 
VA's uniquely pro-claimant benefits system.  

Instead, the Federal Circuit held in Sanders that all VCAA 
notice errors are presumed prejudicial and require reversal 
unless VA can show that the error did not affect the 
essential fairness of the adjudication.  To do this, VA must 
show that the purpose of the notice was not frustrated, such 
as by demonstrating:  (1) that any defect was cured by actual 
knowledge on the part of the claimant, see Vazquez-Flores v. 
Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 
30, 2008) ("Actual knowledge is established by statements or 
actions by the claimant or the claimant's representative that 
demonstrate an awareness of what was necessary to 
substantiate his or her claim.") (citing Dalton v. Nicholson, 
21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person 
could be expected to understand from the notice what was 
needed; or (3) that a benefit could not have been awarded as 
a matter of law.  Sanders, 487 F.3d at 889.  Additionally, 
consideration also should be given to "whether the post-
adjudicatory notice and opportunity to develop the case that 
is provided during the extensive administrative appellate 
proceedings leading to the final Board decision and final 
Agency adjudication of the claim ... served to render any pre-
adjudicatory section 5103(a) notice error non-prejudicial."  
Vazquez-Flores v. Peake, No. 05-0355, slip op. at 9 (U.S. 
Vet. App. January 30, 2008).

In this case, the Board finds that the notice error did not 
affect the essential fairness of the adjudication because the 
veteran was provided with the rating criteria in an April 
2005 statement of the case.  She indicated, through numerous 
correspondences (dated February 2004, September 2004, October 
2004, and July 2005) that she was aware of the evidence 
needed to substantiate her claim.      

The VCAA notification substantially complied with the 
requirements of Quartuccio v. Principi, 16 Vet. App. 183 
(2002), identifying the evidence necessary to substantiate a 
claim and the relative duties of VA and the claimant to 
obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 
(2004), requesting the claimant to provide evidence in her 
possession that pertains to the claims.  

VA has obtained service medical records, assisted the 
appellant in obtaining evidence, afforded the veteran a 
physical examination, and afforded the appellant the 
opportunity to give testimony before the Board.  All known 
and available records relevant to the issues on appeal have 
been obtained and associated with the veteran's claims file; 
and the appellant has not contended otherwise.  

In Kent v. Nicholson, No. 04-181 (U.S. Vet. App. March 31, 
2006), the Court addressed directives consistent with VCAA 
with regard to new and material evidence.  The Court stated 
that in order to successfully reopen a previously and finally 
disallowed claim, the law requires the presentation of a 
special type of evidence-evidence that is both new and 
material.  The terms "new" and "material" have specific, 
technical meanings that are not commonly known to VA 
claimants. Because these requirements define particular types 
of evidence, when providing the notice required by the VCAA 
it is necessary, in most cases, for VA to inform claimants 
seeking to reopen a previously and finally disallowed claim 
of the unique character of evidence that must be presented.  
This notice obligation does not modify the requirement that 
VA must provide a claimant notice of what is required to 
substantiate each element of a service-connection claim.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In other words, VA must notify a claimant of the evidence and 
information that is necessary to reopen the claim and VA must 
notify the claimant of the evidence and information that is 
necessary to establish his entitlement to the underlying 
claim for the benefit sought by the claimant.  In addition, 
VA's obligation to provide a claimant with notice of what 
constitutes new and material evidence to reopen a service 
connection claim may be affected by the evidence that was of 
record at the time that the prior claim was finally denied.  
In order to satisfy the legislative intent underlying the 
VCAA notice requirement to provide claimants with a 
meaningful opportunity to participate in the adjudication of 
their claims, the VCAA requires, in the context of a claim to 
reopen, the Secretary to look at the bases for the denial in 
the prior decision and to respond with a notice letter that 
describes what evidence would be necessary to substantiate 
that element or elements required to establish service 
connection that were found insufficient in the previous 
denial.  Therefore, the question of what constitutes material 
evidence to reopen a claim for service connection depends on 
the basis on which the prior claim was denied.

In the present case, the Board observes that the RO furnished 
the appellant with adequate notice letters in April 2004 and 
June 2004.  They set forth the criteria for entitlement to 
the benefit sought by the appellant, and included discussion 
of new and material evidence so as to comply with the Kent 
requirements.  The Board believes that the April 2004 and 
June 2004 notices constituted adequate notice to the 
appellant.   

VA has substantially complied with the notice and assistance 
requirements and the appellant is not prejudiced by a 
decision on the claim at this time.

Increased Ratings

Disability evaluations are determined by the application of 
the Schedule For Rating Disabilities, which assigns ratings 
based on the average impairment of earning capacity resulting 
from a service-connected disability.  38 U.S.C.A. § 1155; 38 
C.F.R. Part 4.  Where there is a question as to which of two 
evaluations shall be applied, the higher evaluation will be 
assigned if the disability picture more nearly approximates 
the criteria required for that rating.  Otherwise, the lower 
rating will be assigned.  38 C.F.R. § 4.7.  

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition.  Schafrath v. 
Derwinski, 1 Vet.App. 589, 594 (1991).  However, where an 
increase in the level of a service-connected disability is at 
issue, the primary concern is the present level of 
disability.  Francisco v. Brown, 7 Vet.App. 55 (1994).  

When service connection was granted, the veteran's 
lumbosacral strain with herniated pulposus at L4/5 was rated 
under Diagnostic Code 5292.  Under Diagnostic Code 5292, a 
rating of 40 percent was warranted for severe limitation of 
motion; a 20 percent rating was warranted for moderate 
limitation of motion; and a rating of 10 percent was 
warranted for slight limitation of motion.  The RO found that 
the veteran suffered from no more than slight limitation of 
motion, entitling her to a 10 percent rating.  In its January 
1998 rating decision, the RO increased the veteran's rating 
to 20 percent effective January 12, 1994.

The Board notes that the regulations pertaining to the 
evaluation of spinal disabilities have been amended.  See 68 
Fed. Reg. 51454- 51456 (Aug. 27, 2003) (effective September 
26, 2003).  The current General Rating Formula for Diseases 
and Injuries holds that for diagnostic codes 5235 to 5243 
(unless 5243 is evaluated under the Formula for Rating 
Intervertebral Disc Syndrome based on incapacitating episode) 
a 100 percent rating is warranted when there is unfavorable 
ankylosis of the entire spine.  A 50 percent rating is 
warranted when there is unfavorable ankylosis of the entire 
thoracolumbar spine.  A 40 percent rating is warranted when 
there is unfavorable ankylosis of the entire cervical spine; 
or, forward flexion of the thoracolumbar spine 30 degrees or 
less; or, favorable ankylosis of the entire thoracolumbar 
spine.  A 30 percent rating is warranted when there is 
forward flexion of the cervical spine 15 degrees or less; or, 
favorable ankylosis of the entire cervical spine.  A 20 
percent rating is warranted when there is forward flexion of 
the thoracolumbar spine greater than 30 degrees but not 
greater than 60 degrees; or, forward flexion of the cervical 
spine greater than 15 degrees but not greater than 30 
degrees; or, combined range of motion of the cervical spine 
not greater than 170 degrees; or, muscle spasm or guarding 
severe enough to result in abnormal gait or abnormal spinal 
contour such as scoliosis, reversed lordosis, or abnormal 
kyphosis.  

The new criteria also includes the following provisions:

Note (1): Evaluate any associated objective neurologic 
abnormalities, including, but not limited to, bowel or 
bladder impairment, separately, under an appropriate 
diagnostic code. 

Note (2):  (See also Plate V.)  For VA compensation 
purposes, normal forward flexion of the cervical spine is 
zero to 45 degrees, extension is zero to 45 degrees, left 
and right lateral flexion are zero to 45 degrees, and left 
and right lateral rotation are zero to 80 degrees.  Normal 
forward flexion of the thoracolumbar spine is zero to 90 
degrees, extension is zero to 30 degrees, left and right 
lateral flexion are zero to 30 degrees, and left and right 
lateral rotation are zero to 30 degrees.  The combined range 
of motion refers to the sum of the range of forward flexion, 
extension, left and right lateral flexion, and left and 
right rotation.  The normal combined range of motion of the 
cervical spine is 340 degrees and of the thoracolumbar spine 
is 240 degrees.  The normal ranges of motion for each 
component of spinal motion provided in this note are the 
maximum that can be used for calculation of the combined 
range of motion. 

Note (3):  In exceptional cases, an examiner may state that 
because of age, body habitus, neurologic disease, or other 
factors not the result of disease or injury of the spine, 
the range of motion of the spine in a particular individual 
should be considered normal for that individual, even though 
it does not conform to the normal range of motion stated in 
Note (2).  Provided that the examiner supplies an 
explanation, the examiner's assessment that the range of 
motion is normal for that individual will be accepted. 

Note (4):  Round each range of motion measurement to the 
nearest five degrees. 

Note (5):  For VA compensation purposes, unfavorable 
ankylosis is a condition in which the entire cervical spine, 
the entire thoracolumbar spine, or the entire spine is fixed 
in flexion or extension, and the ankylosis results in one or 
more of the following: difficulty walking because of a 
limited line of vision; restricted opening of the mouth and 
chewing; breathing limited to diaphragmatic respiration; 
gastrointestinal symptoms due to pressure of the costal 
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or 
cervical subluxation or dislocation; or neurologic symptoms 
due to nerve root stretching.  Fixation of a spinal segment 
in neutral position (zero degrees) always represents 
favorable ankylosis. 

Note (6):  Separately evaluate disability of the 
thoracolumbar and cervical spine segments, except when there 
is unfavorable ankylosis of both segments, which will be 
rated as a single disability.  5235 Vertebral fracture or 
dislocation 5236 Sacroiliac injury and weakness 5237 
Lumbosacral or cervical strain 5238 Spinal stenosis 5239 
Spondylolisthesis or segmental instability 5240 Ankylosing 
spondylitis 5241 Spinal fusion 5242 Degenerative arthritis 
of the spine (see also diagnostic code 5003) 5243 
Intervertebral disc syndrome

Pursuant to Diagnostic Code 5243 (regarding intervertebral 
disc syndrome), a 60 percent disability rating is warranted 
when there are incapacitating episodes having a total 
duration of at least six weeks during the past 12 months.  A 
40 percent rating is warranted when there are incapacitating 
episodes having a total duration of at least four weeks, but 
less than six weeks during the past 12 months.  A 20 percent 
rating is warranted when there are incapacitating episodes 
having a total duration of at least two weeks, but less than 
four weeks during the past 12 months.  A 10 percent rating is 
warranted when there are incapacitating episodes having a 
total duration of at least one week, but less than two weeks 
during the past 12 months.  An incapacitating episode is 
defined as a period of acute signs and symptoms due to 
intervertebral disc syndrome that required bed rest 
prescribed by a physician and treatment by a physician.  An 
evaluation can be had either on the total duration of 
incapacitating episodes over the past 12 months or by 
combining separate evaluations of the chronic orthopedic and 
neurologic manifestations along with evaluations for all 
other disabilities under 38 C.F.R. § 4.25, whichever method 
resulted in the higher evaluation.  

It should also be noted that when evaluating disabilities of 
the musculoskeletal system, 38 C.F.R. § 4.40 allows for 
consideration of functional loss due to pain and weakness 
causing additional disability beyond that reflected on range 
of motion measurements.  DeLuca v. Brown, 8 Vet.App. 202 
(1995).  Further, 38 C.F.R. § 4.45 provides that 
consideration also be given to weakened movement, excess 
fatigability and incoordination.  

The veteran underwent a VA examination in May 2004.  She 
complained of pain in her back, arms, and legs that she 
described the pain as aching, sharp, or cramping.  She stated 
that on a scale of 1 to 10, the severity of the pain is a 10; 
and that she cannot function due to pain.  She alleged that 
she has needed 30 to 60 days of bedrest over the past year.  
She cannot lift any heavy objects and it is difficult for her 
to get up after sitting or lying down.    

Upon examination, there was no radiation of pain on movement.  
There was no muscle spasm.  There was tenderness in the 
muscle of the lumbar spine.  Straight leg raising test was 
positive on both sides.  The veteran was able to achieve 80 
degrees of flexion (with pain occurring at 20 degrees); 20 
degrees of extension (with pain occurring at 10 degrees); 
bilateral flexion to 30 degrees (with pain occurring at 20 
degrees); and bilateral rotation to 30 degrees with no pain.  
Range of motion was limited by pain, but not by fatigue, 
weakness, lack of endurance, or incoordination.  There was no 
ankylosis present.  There was intervertebral disk syndrome 
with nerve root involvement in the lumbar spine with pain 
radiation into her legs.  There was no bowel or bladder 
dysfunction.  Peripheral nerve examination was normal.  Lower 
extremity neurological examination was normal.  Knee and 
ankle reflexes were 3+ bilaterally.  X-rays of the lumbar 
spine revealed osteopenia.  She was diagnosed with lumbar 
strain with herniated nucleus pulposus at L4-L5.  The 
examiner noted that the lumbar spine disability has affected 
her ability to perform the activities of daily life. 

In order to warrant a rating in excess of 20 percent, the 
veteran's disability must be manifested by limitation of 
motion in which forward flexion of the thoracolumbar spine is 
30 degrees or less; or, there is favorable ankylosis of the 
entire thoracolumbar spine; or incapacitating episodes having 
a total duration of at least four weeks, but less than six 
weeks during the past 12 months.    

The veteran was able to forward flex to 80 degrees; and there 
was no ankylosis.  The Board notes that the veteran stated 
that she has required 30 to 60 days of bedrest over the past 
year.  However, an incapacitating episode is defined as a 
period of acute signs and symptoms due to intervertebral disc 
syndrome that requires bed rest prescribed by a physician and 
treatment by a physician.  The record fails to reflect that 
the veteran has been prescribed bedrest for at least four 
weeks over the past year.  

In regards to DeLuca criteria, the May 2004 VA clinician 
opined that the veteran's lumbar strain with herniated 
nucleus pulposus at L4-L5 does not cause the veteran to 
suffer from excessive fatigability or incoordination.  There 
is no medical evidence to show that there is any additional 
loss of motion of the lumbar spine due to pain or flare-ups 
of pain, supported by objective findings, or due to excess 
fatigability, weakness or incoordination, to a degree that 
supports a rating in excess of 20 percent.

Finally, the Board notes that the veteran has insisted that 
the VA has ignored the results of an April 2004 MRI.  The 
Board acknowledges that the veteran has undergone MRIs of her 
cervical spine (neck) and her thoracic spine.  However, the 
veteran is only service connected for a disability to her 
lumbar spine (low back).  
   
As the preponderance of the evidence is against this claim, 
the benefit-of-the-doubt doctrine does not apply, and the 
claim for a rating in excess of 20 degrees for a  lumbar 
strain with herniated nucleus pulposus at L4-L5 must be 
denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).

The potential application of various provisions of Title 38 
of the Code of Federal Regulations has also been considered 
but the record does not present such "an exceptional or 
unusual disability picture as to render impractical the 
application of the regular rating schedule standards."  
38 C.F.R. § 3.321(b)(1).  In this regard, the Board finds 
that there has been no showing by the veteran that the 
service connected disorder has resulted in marked 
interference with employment or necessitated frequent periods 
of hospitalization.  Under these circumstances, the Board 
finds that the veteran has not demonstrated marked 
interference with employment so as to render impractical the 
application of the regular rating schedule standards.  In the 
absence of such factors, the Board finds that criteria for 
submission for assignment of an extraschedular rating 
pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell 
v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. 
App. 218, 227 (1995).

New and Material Evidence

When a claim to reopen is presented, a two-step analysis is 
performed.  The first step of which is a determination of 
whether the evidence presented or secured since the last 
final disallowance of the claim is "new and material."  See 
Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); 
see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 
1359-60 (Fed. Cir. 1998).  

38 C.F.R. § 3.156(a) (2007) provides as follows:   

New evidence means existing evidence not 
previously submitted to agency 
decisionmakers.  Material evidence means 
existing evidence that, by itself or when 
considered with previous evidence of 
record, relates to an unestablished fact 
necessary to substantiate the claim.  New 
and material evidence can be neither 
cumulative nor redundant of the evidence 
of record at the time of the last prior 
final denial of the claim sought to be 
reopened, and must raise a reasonable 
possibility of substantiating the claim.	

Second, if VA determines that the evidence is new and 
material, the VA may then proceed to evaluate the merits of 
the claim on the basis of all evidence of record, but only 
after ensuring that the duty to assist has been fulfilled.  
See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) 
(discussing the analysis set forth in Elkins), overruled on 
other grounds sub nom.  Winters v. Gober, 219 F.3d 1375, 1378 
(Fed. Cir. 2000); Elkins, supra.  The second step becomes 
applicable only when the preceding step is satisfied.  See 
Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).  In 
order for evidence to be sufficient to reopen a previously 
disallowed claim, it must be both new and material.  If the 
evidence is not material, the inquiry ends and the claim 
cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 
(1999).

Anxiety (fatigue/sleep disturbances)
By rating decision in January 1998, the RO denied a claim for 
service connection for fatigue and insomnia as due to an 
undiagnosed illness.  The record shows that the veteran filed 
a timely notice of disagreement, and a statement of the case 
was issued.  However, the veteran failed to file a 
substantive appeal.  The January 1998 rating decision 
therefore became final.  38 U.S.C.A. § 7105(c).  A claim 
which is the subject of a prior final determination is not 
subject to revision except on the receipt of new and material 
evidence.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.

When the RO denied the claim in January 1998, the evidence 
included the veteran's service medical records; post service 
VA treatment records; a February 1994 Gulf War Registry 
examination, and a July 1997 VA examination.  The RO 
apparently denied the claim on the basis that the veteran's 
fatigue and insomnia were caused by an anxiety disorder that 
was not related to service.  The Board notes that the July 
1997 VA examination reflected that the veteran's fatigue may 
have been due to her insomnia.  The examination report also 
reflected the veteran's belief that her insomnia may have 
been due to the alleged atrocities that she witnessed in the 
Persian Gulf.  However, the VA psychiatric and personality 
examination was normal.  She was not diagnosed with an 
anxiety disorder.  

Evidence submitted since the January 1998 decision includes 
post-service treatment records reflecting treatment for 
depression and anxiety.  A September 2000 VA treatment report 
shows a diagnosis of depression and an allegation by the 
veteran that she was sexually assaulted while in the 
military.  These treatment records show treatment for various 
psychiatric disabilities, including depression and anxiety.  

The Board finds that this new evidence reflects treatment for 
a psychiatric disability that may be related to service.  As 
such, the veteran's insomnia and fatigue may also be related 
to service.  This new evidence presented is neither 
cumulative nor redundant.  Moreover, the Board finds that it 
raises a reasonable possibility of substantiating the claim.  

Accordingly, the claim for service connection for a 
psychiatric disorder manifested by insomnia and fatigue is 
reopened.  To this extent, the appeal is granted.  

However, the Board also finds that further development is 
needed before the Board can properly decide whether service 
connection is warranted.  This is further discussed in the 
Remand portion of this decision.         

Joint Pain
By rating decision in January 1998, the RO denied a claim for 
service connection for multiple joint pains involving the 
arms, shoulders, and wrists as due to an undiagnosed illness.  
The record shows that the veteran failed to file notice of 
disagreement.  The January 1998 rating decision therefore 
became final.  
38 U.S.C.A. § 7105(c).  A claim which is the subject of a 
prior final determination is not subject to revision except 
on the receipt of new and material evidence.  
38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.

When the RO denied the claim in January 1998, the evidence 
included the veteran's service medical records; post service 
VA treatment records; a February 1994 Gulf War registry 
examination that showed no evidence of joint pain; a December 
1994 VA examination that was negative for any complaints of 
joint pain involving the arms, shoulders or wrists; and a 
July 1997 VA examination that stated that the veteran had 
normal joints with normal function (and minimal occupational 
carpal tunnel syndrome).  The RO denied the claim, finding 
that the service medical records contained no findings 
attributed to multiple joint pain involving the arms, 
shoulders, or wrists; and that the subsequent examinations 
showed no chronic disability.  

Evidence submitted since the January 1998 decision includes 
post-service medical records from San Benito Medical 
Associates; Valley Baptist Health System; Valley Doctors 
Clinic; and the VA Medical Center of South Texas.  These 
records fail to show any additional evidence attributed to 
joint pain of the shoulders, arms, or wrists.   

The Board finds that the veteran has not submitted any new 
evidence regarding her claim for service connection for joint 
pain involving the arms, shoulders, and wrists.  

Accordingly, the claim for service connection for joint pain 
involving the arms, shoulders, and wrists is not reopened.  

Irritable Bowel Syndrome (IBS)
By rating decision in January 1998, the RO denied a claim for 
service connection for a stomach condition as due to an 
undiagnosed illness.  The record shows that the veteran 
failed to file a notice of disagreement.  The January 1998 
rating decision therefore became final.  38 U.S.C.A. 
§ 7105(c).  A claim which is the subject of a prior final 
determination is not subject to revision except on the 
receipt of new and material evidence.  38 U.S.C.A. §§ 5108, 
7105; 38 C.F.R. § 3.156.

In its May 2004 rating decision, the RO found that no new and 
material evidence had been received; and therefore denied the 
veteran's application to reopen the claim.  However, in its 
April 2005 statement of the case, the RO noted that a change 
in the law expanded the definition of a qualifying chronic 
disability associated with Gulf War service to include 
chronic multi-symptom illness such as IBS.  The RO found that 
new and material evidence was received; and consequently, the 
RO reopened the veteran's claim.  It then denied the claim on 
a de novo basis because it determined that although the 
veteran has been diagnosed with a presumptive Gulf War 
disability, the evidence did not show that it met the 
requirement of being at least 10 percent disabling (there was 
no evidence of frequent episodes of bowel disturbance with 
abdominal distress).  

The Board notes that despite the determination made by the 
RO, the Board must find new and material evidence in order to 
establish its jurisdiction to review the merits of a 
previously denied claim.  See Jackson v. Principi, 265 F. 3d 
1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. 

When the RO denied the claim in January 1998, the evidence 
included the veteran's service medical records; post service 
VA treatment records; and a July 1997 VA examination in which 
the veteran complained of some irregularity problems, 
reported that she was being treated with Metamucil, and was 
diagnosed with "probably IBS, asymptomatic".  

In its January 1998 rating decision, the RO acknowledged that 
the veteran had complained of abdominal pain in May 1992 and 
was diagnosed with gastroenteritis.  It denied the claim on 
the basis that the condition was temporary and that no 
permanent disability was shown.  

Evidence submitted since the January 1998 decision includes 
post-service VA treatment records and post service private 
treatment records.  The VA medical records reflect that the 
veteran was diagnosed with IBS several times in April 2001.  
A September 2004 private treatment report from Dr. O.C.J. 
also reflects a diagnosis of IBS and gastroesophageal reflux 
disease.  

The Board finds that this new evidence reflects that the 
veteran's stomach and intestinal disabilities may not have 
been temporary.  This new evidence presented is neither 
cumulative nor redundant.  Moreover, the Board finds that it 
raises a reasonable possibility of substantiating the claim.  

As such, the Board finds that the veteran's claim for IBS 
(previously claimed as a stomach disability) is reopened.  To 
this extent, the appeal is granted.  

However, the Board also finds that further development is 
needed before the Board can properly decide whether service 
connection is warranted.  This is further discussed in the 
Remand portion of this decision.    	


ORDER

Entitlement to a rating in excess of 20 percent for the 
veteran's service connected lumbosacral strain with herniated 
pulposus at L4/5 is not warranted.  No new and material 
evidence has been received to reopen a service connection 
claim for muscle/joint pain involving the shoulders, arms, 
and wrists.  To this extent, the appeal is denied.  

New and material evidence has been received to reopen service 
connection claims for an anxiety disorder (also claimed as 
fatigue and sleep disturbances), and for IBS (also claimed as 
gastrointestinal illnesses and a stomach condition).  These 
claims are reopened.  To this extent, the appeal is granted.  


REMAND

Anxiety disorder (manifested by fatigue and insomnia)
There is evidence that the veteran's alleged insomnia, 
fatigue, and anxiety are related to each other.  However, the 
Board notes that even if they are not related to each other, 
they each may be separately related to the veteran's military 
service.  The Board finds that a VA examination is warranted 
for the purpose of determining the nature and etiology of the 
veteran's psychiatric disorder, fatigue, and insomnia.   

IBS
The Board reopened the veteran's claim for IBS (previously 
claimed as a stomach disability).  As noted above, the RO 
denied the claim on a de novo basis, noting that the 
disability was not 10 percent disabling; and it thereby did 
not meet the criteria needed to become service connected on a 
presumptive basis.  The Board finds that the RO failed to 
consider whether or not service connection was warranted on a 
direct basis; and that a VA examination is necessary to make 
that determination.  The RO should schedule the veteran for a 
VA examination for the purpose of determining the etiology 
and severity of any gastrointestinal disabilities, to include 
IBS.  The RO should then readjudicate the claim and determine 
whether service connection is warranted on either a 
presumptive or direct basis.     

Bladder infections 
The Board notes that the veteran was not given a VA 
examination in response to her claim for an increased rating.  
Instead, the claim was denied based on a lack of treatment 
records from October 2001 through March 2002.  The record 
reflects that the veteran has consistently complained of 
urinary problems; and an April 2002 treatment note from San 
Benito Medical Associates reflects complaints of painful 
urination and a diagnosis of urinary tract infection.  The 
Board finds that the veteran is entitled to a VA examination 
for the purpose of determining the nature and severity of the 
veteran's urinary or bladder infections.  

Headaches/migraines
The Board notes that the veteran's most recent examination 
for her headaches took place in April 2002 (almost six years 
ago).  While a new examination is not required simply because 
of the time which has passed since the last examination, the 
Board notes that the examination was for the purpose of 
determining whether or not the veteran's headaches were 
caused by service.  The examination was scheduled as a result 
of the veteran's service connection claim for headaches.  The 
severity of the headaches was not addressed by the examiner.  
Furthermore, the veteran's description of the headaches is 
unclear in that she stated that a couple of times per month, 
the headaches are incapacitating, though she is still able to 
go to work.

The Board finds that a VA examination is warranted for the 
purpose of determining the severity of the veteran's 
headaches.     

Leishmaniasis
The RO denied the veteran's service connection claim for 
leishmaniasis on the basis that she has never been diagnosed 
with it.  The Board notes that a November 1997 VA treatment 
report states that "By history and laboratory findings [the 
veteran] contracted cutaneous leishmaniasis while stationed 
in Saudi Arabia...I don't doubt the diagnosis."  The examiner 
recommended confirmation of cutaneous leishmaniasis as a 
service connected disorder.  A July 1998 VA treatment report 
states that the veteran "has undoubtedly had cutaneous 
Leishmaniasis in the past, but her current problems may be 
something else."  The Board finds that a VA examination is 
warranted for the purpose of determining the nature and 
etiology of the veteran's disability.    

Additionally, the Board notes that during the pendency of 
this appeal, on March 3, 2006, the Court issued a decision in 
the consolidated appeal of Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006), which held that the VCAA notice 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) apply to all five elements of a service connection 
claim.  Those five elements include:  (1) veteran status; (2) 
existence of a disability; (3) a connection between the 
veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  The 
Court held that upon receipt of an application for a service-
connection claim, 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to 
review the information and the evidence presented with the 
claim and to provide the claimant with notice of what 
information and evidence not previously provided, if any, 
will assist in substantiating or is necessary to substantiate 
the elements of the claim as reasonably contemplated by the 
application.  Dingess/Hartman, slip op. at 14.  The Board 
recognizes that the new requirements of VCAA notice were not 
in effect at the time the RO issued its VCAA notices.  As 
such, the new requirements do not constitute the basis of 
this remand.  However, since these issues need to be remanded 
on other grounds, the Board finds that the RO should comply 
with the most recent Court analysis.

Finally, there has been a recent judicial decision that holds 
that for an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008).  
Further, if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Vazquez-Flores, slip op. at 5-6.  Action to 
comply with this recent Court holding is also appropriate 
since the case must be returned to the RO for other reasons 
discussed above. 

Accordingly, the case is REMANDED for the following actions:

1.  The RO should furnish the veteran 
with an appropriate letter to ensure 
compliance with the Dingess/Hartman 
decision.  The RO should ensure that the 
veteran is furnished proper notice in 
compliance with 38 C.F.R.§ 3.159(b)(1), 
including notice of (a) the information 
and evidence not of record that is 
necessary to substantiate his claim, (b) 
the information and evidence that VA will 
seek to provide, and (c) the information 
and evidence that the veteran is expected 
to provide, including the need to furnish 
all pertinent evidence in his possession.  
See Quartuccio v. Principi, 16 Vet. App. 
183 (2002); Charles v. Principi, 16 Vet. 
App. 370 (2002).  

     The RO should also furnish the 
veteran a VCAA notice letter in 
compliance with the guidance set forth in 
Vazquez-Flores v. Peake, No. 05-0355, 
(U.S. Vet. App. January 30, 2008).

2.  The veteran should be afforded a VA 
psychiatric examination for the purpose 
of determining the nature, etiology and 
severity of any psychiatric disability; 
fatigue; or insomnia; that may be 
present.  The claims file should be made 
available to the examiner for review.  
Following a review of the relevant 
medical evidence in the claims file, to 
include the service medical records; 
post-service medical records; the medical 
history obtained from the veteran; the 
clinical evaluation; and any tests that 
are deemed necessary, the clinician 
should be asked to opine whether it is at 
least as likely as not (50 percent or 
more likelihood) that any psychiatric 
disability, fatigue, or insomnia that is 
currently present began during or is 
causally linked to service.  The 
clinician is also requested to provide a 
rationale for any opinion expressed.          

3.  The veteran should be afforded a VA 
examination for the purpose of 
determining the nature, etiology and 
severity of any stomach or intestinal 
disability that may be present.  The 
claims file should be made available to 
the examiner for review.  Following a 
review of the relevant medical evidence 
in the claims file, to include the 
service medical records; post-service 
medical records; the medical history 
obtained from the veteran; the clinical 
evaluation; and any tests that are deemed 
necessary, the clinician should be asked 
to opine whether it is at least as likely 
as not (50 percent or more likelihood) 
that any stomach or intestinal disability 
that is currently present began during or 
is causally linked to service.  The 
clinician is also requested to provide a 
rationale for any opinion expressed.          
 
4.  The veteran should be afforded a VA 
examination for the purpose of 
determining the nature, etiology and 
severity of any skin disability, to 
include leishmaniasis, that may be 
present.  The claims file should be made 
available to the examiner for review.  
Following a review of the relevant 
medical evidence in the claims file, to 
include the service medical records; 
post-service medical records; the medical 
history obtained from the veteran; the 
clinical evaluation; and any tests that 
are deemed necessary, the clinician 
should be asked to opine whether it is at 
least as likely as not (50 percent or 
more likelihood) that any skin disability 
that is currently present began during or 
is causally linked to service.  The 
clinician is also requested to provide a 
rationale for any opinion expressed.          

5.  The veteran should be scheduled for a 
VA examination for the purpose of 
determining the nature and severity of 
the veteran's urinary tract and/or 
bladder infections.  The claims file 
should be made available to the examiner 
for review.  Any special tests deemed 
medically advisable should be conducted.  

6.  The veteran should be afforded a VA 
examination for the purpose of 
determining the severity of the veteran's 
service connected headaches.  The claims 
file should be made available to the 
examiner for review.  Following a review 
of the relevant medical evidence in the 
claims file, the rating criteria for 
evaluating headaches, the medical history 
obtained from the veteran, the clinical 
evaluation, and any tests that are deemed 
necessary, the clinician should be asked 
to specifically note whether the 
veteran's headaches are incapacitating or 
prostrating in nature.  If so, the 
examiner should note the length and 
frequency of such episodes.  The 
clinician is also requested to provide a 
rationale for any opinion expressed.          

7.  After completion of the above, the RO 
should review the expanded record and 
readjudicate the claims on appeal.  The 
veteran and his representative should be 
furnished an appropriate supplemental 
statement of the case and be afforded an 
opportunity to respond.  Thereafter, the 
case should be returned to the Board for 
appellate review.

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

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court 
of Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals







 Department of Veterans Affairs