Citation Nr: 0810038 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 00-11 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for migraine headaches, including as secondary to service-connected knee disabilities. 3. Entitlement to service connection for a hip disability, including as secondary to service-connected knee disabilities. 4. Entitlement to service connection for a muscle disability. 5. Entitlement to service connection for anxiety. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for depression. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative bone growths (claimed as arthritis of the back and cervical spine). 8. Entitlement to an evaluation in excess of 10 percent for musculoskeletal strain with bursitis, left knee. 9. Entitlement to an evaluation in excess of 10 percent for musculoskeletal strain with bursitis, right knee. 10. Entitlement to a certificate of eligibility for financial assistance in purchasing an automobile and/or adaptive equipment. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL Veteran and his sister ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from June 1976 to January 1977. These claims come before the Board of Veterans' Appeals (Board) on appeal of May 1999, March 2000, December 2005 and August 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran and his sister testified in support of this appeal at hearings held at the RO and by videoconference in October 2000 and April 2002, before a Decision Review Officer and the undersigned Veterans Law Judge. Transcripts of the hearing testimony are part of the claims file. In October 2003, the Board remanded two of the claims on appeal to the RO for additional action. Since then, the RO has characterized another claim on appeal as entitlement to service connection for anxiety and depression. As explained below, however, the Board previously denied the veteran entitlement to service connection for depression and that decision is final. The Board has thus recharacterized this claim as two separate claims: one as entitlement to service connection for anxiety, the other as whether new and material evidence has been received to reopen the claim of entitlement to service connection for depression. Below, the Board reopens that claim and then remands it on its merits, as well as the claims of entitlement to service connection for migraine headaches, including as secondary to service-connected disability, and anxiety, and entitlement to evaluations in excess of 10 percent for musculoskeletal strain with bursitis, left and right knees, to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. VA provided the veteran adequate notice and assistance with regard to the claims being decided. 2. A right ankle disability is related to the veteran's active service. 3. The veteran does not currently have a left hip disability. 4. A right hip disability is not related to the veteran's active service or service-connected knee disabilities. 5. The veteran does not currently have a muscle disability. 6. The Board denied the veteran entitlement to service connection for depression, including as secondary to service- connected disability, in a decision dated in August 2002. 7. The Board notified the veteran of the August 2002 decision and of his appellate rights with regard to the decision, but the veteran did not appeal the decision or seek reconsideration thereof. 8. The evidence received since August 2002 is neither cumulative, nor redundant of the evidence previously of record and, by itself or when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim for service connection for depression and raises a reasonable possibility of substantiating that claim. 9. In a rating decision dated September 2003, the RO denied the veteran's claims of entitlement to service connection for cervical spine and back disabilities. 10. The RO notified the veteran of the September 2003 rating decision and of his appellate rights with regard to that decision, but the veteran did not appeal it to the Board. 11. The evidence received since September 2003 is neither cumulative, nor redundant of the evidence previously of record but, by itself or when considered with the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for degenerative bone growths (claimed as arthritis of the back and cervical spine) and does not raise a reasonable possibility of substantiating that claim. 12. The veteran is not entitled to compensation for the loss, or permanent loss of use, of a hand or a foot, permanent impairment of vision of both eyes, with central visual acuity of 20/200 or less in the better eye, or central visual acuity of more than 20/200 if there is a field defect in the better eye, or ankylosis of a knee or a hip. CONCLUSIONS OF LAW 1. A right ankle disability was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 2. A hip disability was not incurred in or aggravated by service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2007). 3. A muscle disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). 4. The August 2002 decision, in which the Board denied entitlement to service connection for depression, including as secondary to service-connected disability, is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (2000). 5. New and material evidence has been received to reopen a claim of entitlement to service connection for depression, including as secondary to service-connected disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 6. The September 2003 rating decision, in which the RO denied the veteran's claims of entitlement to service connection for cervical spine and back disabilities, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). 7. New and material evidence has not been received to reopen a claim of entitlement to service connection for degenerative bone growths (claimed as arthritis of the back and cervical spine). 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 8. The criteria for entitlement to a certificate of eligibility for financial assistance in purchasing an automobile and/or adaptive equipment have not been met. 38 U.S.C.A. §§ 3901, 3902, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326, 3.808, 17.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, VA provided the veteran adequate notice and assistance with regard to the claims being decided such that the Board's decision to proceed in adjudicating them does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). A. Duty to Notify The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. In March 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Id. at 486. Later in March 2006, the Court held that, with regard to claims to reopen, VA must inform the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The Court explained that in notifying the claimant of what evidence would be considered new and material, VA should look at the basis for the denial in the prior decision and identify the evidence that would substantiate the element(s) of a service connection claim found lacking in the previous denial. Id. 1. Timing a. Right Ankle, Headaches The RO provided the veteran VCAA notice on his right ankle and headache claims by letters dated June 2001, April 2004, February 2005 and July 2005, after initially deciding those claims in rating decisions dated May 1999 and March 2000. Given that VCAA notice was not mandated at the time of the rating decisions, the timing of the remedial notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. b. Hip, Muscle, Bone Disabilities & Automobile and Adaptive Equipment The RO provided the veteran VCAA notice on his hip, muscle and bone disabilities and automobile and adaptive equipment claims by letters dated October 2003, December 2003, December 2004, February 2006 and March 2006, before initially deciding those claims in rating decisions dated December 2005 and August 2006. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. c. Depression The RO did not provide the veteran VCAA notice on his depression claim. However, given the Board's decision to proceed in reopening that claim, the veteran is not prejudiced by any failure to remand for additional notification pertaining to claims to reopen. Rather, as explained below, the RO can cure any notification defect when it readjudicates the claim on its merits. 2. Content The content of the aforementioned notice letters, considered in conjunction with the content of other letters the RO sent the veteran in December 1998, November 1999, June 2003, September 2005, March 2006, September 2006 and December 2006, reflects compliance with the requirements of the law as found by the Court in Pelegrini II and Dingess/Hartman. In the aforementioned notice letters, the RO acknowledged the claims being decided, notified the veteran of the evidence needed to substantiate those claims, identified the type of evidence that would best do so, informed him of VA's duty to assist, and indicated that it was developing his claims pursuant to that duty. The RO also provided the veteran all necessary information on disability ratings and effective dates. As well, it identified the evidence it had received in support of the veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the veteran in obtaining all outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the veteran's responsibility to ensure VA's receipt of all pertinent evidence. The RO advised the veteran to sign the enclosed forms authorizing the release of his treatment records if he wished VA to obtain such records on his behalf. The RO also advised the veteran to identify or send directly to VA all evidence he had in his possession, which pertained to his claims. The content of the notice letters does not reflect compliance with the requirements of the law as found by the Court in Kent. Therein, the RO did not identify the basis of the RO's last denials of the veteran's claims for service connection for depression and cervical spine and low back disabilities. The veteran is not, however, prejudiced as a result of the RO's error in this regard because, first, as explained below, new and material evidence has been received to reopen the claim for service connection for depression. Moreover, since the other claim to reopen was initially denied, the RO has issued the veteran a statement of the case and supplemental statement of the case, which include the necessary information. Following the issuance of these documents, the veteran responded and the RO readjudicated his claims. B. Duty to Assist VA made reasonable efforts to identify and obtain relevant records in support of the claims being decided. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO endeavored to secure and associate with the claims file all evidence the veteran identified as being pertinent to these claims, including service medical records and post-service treatment records. In some cases, including with regard to requests for additional service medical records and identified records from the Social Security Administration, the RO received responses that such records were unavailable. Since then, in a written statement received in July 2007, the veteran has indicated that he has no other information or evidence to submit. The RO also conducted medical inquiry in support of the veteran's claims by affording the veteran VA examinations, during which VA examiners addressed the etiology and severity of the disabilities at issue in this decision. The veteran does not now claim that the reports of these examinations are inadequate to decide the claims at issue. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what additional evidence he should submit to substantiate his claim[s]." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). II. Analysis of Claims A. Claims for Service Connection The veteran claims entitlement to service connection for right ankle, hip and muscle disabilities. He asserts that these disabilities either manifested in service or, with regard to the hip disability, secondary to his service- connected knee disabilities and the pain associated therewith. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when aggravation of a nonservice-connected disorder is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2005); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that, pursuant to 38 U.S.C.A. § 1110 and § 3.310(a), when aggravation of a veteran's nonservice- connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). Service connection may be presumed for arthritis if it is shown that the veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and such condition manifested to a degree of 10 percent within one year from the date of discharge with no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Right Ankle Disability According to the veteran's written statements and hearing testimony, written statements of his mother, daughter, P.A., C.A and P.C., and his sister's hearing testimony, the veteran injured his right ankle in service and experienced residuals of that injury consistently from the time it occurred. Allegedly, within months of the veteran's discharge from service, the veteran sought treatment for such residuals from multiple physicians. The veteran's post-service medical records, including VA treatment records and reports of VA examinations, establish that the veteran currently has a right ankle disability, most recently diagnosed as avascular necrosis and degenerative joint disease. The question is thus whether this right ankle disability is related to the veteran's active service. As previously indicated, the veteran served on active duty from June 1976 to January 1977. During basic training, he injured his right ankle and sought treatment for pain. According to letters the veteran wrote to family members while participating in such training, the injury resulted in a fractured right ankle. However, x-rays of the right ankle taken in December 1976 reveal no abnormalities. A medical professional diagnosed a right ankle strain. Following discharge, beginning in February 1977, the veteran reported right ankle complaints, primarily pain. He further reported that he had had the pain for three and a half months, had seen several doctors during that time period, had been told such pain was secondary to a bruised right ankle, and had not experienced resolution of the pain. Based on x- rays showing no significant abnormality, a private physician diagnosed right foot pain of unclear etiology. In 1979, the veteran reported right ankle pain of two years' duration, since injuring his right ankle while running. X- rays showed cystic changes of the distal end of the talus. A private physician indicated that such changes were the same seen on x-rays two years previously, but more marked in severity. The physician attributed these changes to possible avascular necrosis of the head of the talus with developing arthritis. In 1984, the veteran reported that he had twisted his ankle five years prior to the visit, while running. He also reported that, three weeks prior to the visit, he rolled a heavy platform over the same ankle. X-rays revealed post- traumatic arthritis of the right foot. A private physician diagnosed the veteran with recurrent right ankle pain secondary to avascular necrosis or post-traumatic arthritis. Since then, the veteran has continued to receive treatment for right ankle complaints and has undergone VA examinations of his right ankle. During treatment visits and examinations, medical professionals have addressed the etiology of the right ankle disability. Their opinions, which follow, conflict. During a visit in February 2001, and based on a review of the veteran's service medical records and post-service VA treatment records, a VA physician who had been evaluating the veteran for years opined that the veteran's right ankle disability was at least as likely as not related to his service. The same VA physician submitted a written statement in April 2006 reiterating this opinion and indicating that the opinion was based on service medical records documenting in-service ankle injuries. During an August 2001 VA examination and based on a review of the veteran's service medical records only, a VA examiner opined that the veteran's right ankle disability was not at least as likely as not related to his service. The examiner based this opinion on findings that the relevant record began in 1998, twenty-three years after the in-service right ankle injury, and that prior to that time, despite multiple visits, physicians noted essentially normal examinations of the veteran's right ankle. During a September 2005 examination, an examiner diagnosed post-traumatic degenerative talonavicular joint, residuals of a small chip fracture in the medial aspect of the talus, and aseptic necrosis possibility at the talonavicular joint. He opined that it was less likely than not that these conditions happened in the military and probable that they happened after 1979. He based this opinion on the following findings: (1) The veteran was able to run prior to 1979; (2) He injured his right ankle in December 1976, in service, but x-rays showed no chip fracture or other abnormalities; (3) The right ankle pain gradually subsided thereafter; (4) The veteran reinjured his ankle again in 1979, 1984 and February 1988, when he was involved in a car accident; and (5) The veteran had a history of repeated alcohol abuse, which is related to aseptic necrosis. During a May 2007 examination and based on a review of the veteran's service medical records, an examiner opined that the veteran's right ankle condition was well known by records and secondary to previous injuries. He further opined that the avascular necrosis was secondary to a combination of ethanol abuse and injuries, not to the veteran's bilateral knee disabilities. The record clearly establishes that the veteran had an in- service right ankle injury, continuously reported and received treatment for right ankle complaints after the injury, including within three months of his discharge from service, and was shown to have cystic changes of the distal end of the talus within three months of discharge, prior to reinjuring the right ankle. Considering these facts in conjunction with the favorable opinions noted above, to which the Board assigns greater evidentiary weight, the Board finds that the veteran's right ankle disability is related to his active service. The Board assigns less weight to the unfavorable opinions noted above because the medical professionals who offered these opinions based them on faulty or unsubstantiated findings. They failed to notice or did not consider the medical evidence showing treatment for right ankle complaints within three months of the veteran's discharge from service. In addition, they did not consider one physician's finding that the right ankle abnormalities shown on x-rays in 1979 were the same seen in 1977, within three months of the veteran's discharge from service and prior to any reinjury. As well, one medical professional related the veteran's right ankle disability to, in part, a February 1998 automobile accident. However, records from that accident reflect that, after it occurred, the veteran reported right-sided joint and muscle pain affecting various parts of his body, not including his right ankle. Moreover, no physician noted any right ankle symptomatology or abnormalities. In light of the foregoing, the Board concludes that a right ankle disability was incurred in service. Inasmuch as the evidence in this case supports the veteran's claim of entitlement to service connection for a right ankle disability, such claim must be granted. 2. Hip Disability The veteran and his family members and acquaintances assert that the veteran's current hip disability either developed in service, or thereafter, secondary to the pain and altered gait caused by his service-connected knee disabilities. Allegedly, with regard to the medical opinions of record, there is, at least, an approximate balance of negative and positive evidence of record. The veteran requests the Board to assign the favorable opinion greater weight because it is offered by the veteran's treating VA physician, who has evaluated him for years, despite the fact that it is not based on a review of the entire claims file. He alternatively requests the Board to give him the benefit of the doubt in the resolution of this claim. The veteran's post-service medical records, including VA and private treatment records and reports of VA examinations, establish that the veteran currently has a right hip disability, most recently diagnosed as avascular necrosis. The question is thus whether this right hip disability is related to the veteran's active service. During active service from June 1976 to January 1977, the veteran did not report any hip complaints and medical professionals did not note any hip abnormalities. According to letters the veteran wrote to his family during basic training, he hurt his legs. However, when he sought treatment for these complaints in service, medical professionals attributed them to knee, not hip, problems. The veteran first mentioned hip problems many years after discharge, in 1998, after being involved in an automobile accident. At that time, physicians noted right hip symptomatology. Since then, the veteran has continued to receive treatment for right hip complaints and has undergone VA examinations of his right hip. In addition, medical professionals have addressed the etiology of the right hip disability. Their opinions, which follow, conflict. During a March 2006 examination, the veteran reported that he started having problems with his hip in 1994, which eventually necessitated a hip replacement in 2004. An examiner reviewed the claims file, considered the veteran's medical history and clinical findings and diagnosed right hip avascular necrosis, status post total joint replacement with residuals. He opined that this condition was less likely than not caused by, or the result of, the veteran's service- connected knee disabilities and more likely than not caused by the veteran's post-service automobile accident. He based this opinion on a finding that a chronic joint condition below the hip would not cause avascular necrosis and that there were other systemic causes for such a disability. In April 2006, the veteran's treating VA physician submitted a written statement indicating that the veteran's right hip disability was at least as likely as not related to the altered gait caused by his service-connected knee disabilities and right ankle disability (service connected above). She indicated that she based this opinion on long- standing leg and ankle problems, as documented in the service medical records. During a May 2007 examination, an examiner diagnosed right hip avascular necrosis, status post total joint replacement with residuals and opined that this condition was not secondary to the veteran's service-connected knee disabilities. He based this opinion on findings that avascular necrosis was caused by trauma, which was not sustained in service, steroid use, chronic alcoholism, pancreatitis, infiltrative disorders, and sickle cell disease, and that the veteran had a long history of alcoholism. In an addendum dated June 2007, the same examiner noted that, prior to offering this opinion, he reviewed the veteran's claims file. The Board assigns greater evidentiary weight to the aforementioned VA examiners' opinions. These opinions are based on a review of the veteran's claims file and supported by rationale. Although, in her written statement, the VA physician indicated that she based her opinion on service medical records showing right ankle and leg problems, she does not explain how such problems are related to a hip disability. As previously indicated, in service, a medical professional attributed the leg problems to knee disabilities, In addition, in offering her opinion, she did not diagnose any particular right hip disability and failed to mention the veteran's avascular necrosis. In light of the foregoing, the Board finds that the veteran does not currently have a left hip disability and that his right hip disability is not related to his active service or service-connected knee disabilities. Based on these findings, the Board concludes that a hip disability was not incurred in or aggravated by service and is not proximately due to or the result of a service-connected disability. The claim for service connection for a hip disability is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution thereof. Rather, as a preponderance of the evidence is against the claim, it must be denied. 3. Muscle Disability The veteran and his family members and acquaintances assert that the veteran currently has a muscle disability that first manifested in service, when he sustained musculoskeletal injuries. During active service from June 1976 to January 1977, the veteran did not report any muscle complaints other than those related to his knees, which are now service connected. Moreover, medical professionals did not diagnose any muscle disability. According to letters the veteran wrote to his family during basic training, he hurt his legs. However, when he sought treatment for these complaints in service, medical professionals attributed them to knee problems. Following discharge, the veteran sought treatment for multiple medical complaints, including involving his muscles, but no medical professional attributed such complaints to a muscle disability. Rather, they attributed them to knee disabilities, now service connected, and a back disability, which is the subject of another claim on appeal. As noted above, to prevail in a claim for service connection, the veteran must submit competent evidence establishing that he has a current disability resulting from service. In this case, the veteran's assertions represent the only evidence of record establishing that he currently has a muscle disability that is not part of his service-connected knee disabilities, or separate from his back disability, which is the subject of another claim. Such assertions may not be considered competent evidence of a current disability as the record does not reflect that the veteran possesses a recognized degree of medical knowledge to diagnose a medical condition. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that laypersons are not competent to offer medical opinions). In light of the foregoing, the Board finds that the veteran does not currently have a muscle disability. Based on this finding, the Board concludes that a muscle disability was not incurred in service. The claim for service connection for a muscle disability is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution thereof. Rather, as a preponderance of the evidence is against the claim, it must be denied. B. Claims to Reopen 1. Depression The RO and the Board previously denied the veteran's claim of entitlement to service connection for depression, including as secondary to service-connected disability. The Board last did so in a decision dated in August 2002. In deciding the claim, the Board considered: the veteran's service medical records and letters to his family dated during service, which the Board indicated were negative for any psychiatric findings; post-service VA and private treatment records, which the Board indicated showed treatment for depression; and a February 2001 medical opinion of a VA physician linking the depression to the veteran's active service, which the Board discounted completely. The Board noted that the physician did not explain why symptoms of the veteran's depression were entirely absent in service and during the following twenty years after service. Based on a lack of competent evidence linking the depression to service or the veteran's service-connected knee disabilities, the Board denied the claim. The Board notified the veteran of the August 2002 decision and of his appellate rights with regard to the decision. When the Board disallows a claim, the disallowance becomes final unless the Chairman determines that reconsideration is warranted, or another exception to finality applies. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). The veteran in this case did not file a motion for reconsideration of the Board's August 2002 decision, nor did he appeal the decision to the Court. The Board's August 2002 decision is thus final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (2000). The veteran attempted to reopen his claim for service connection for depression in December 2003. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). For claims filed prior to August 29, 2001, new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2000). For claims filed on or after August 29, 2001, as in this case, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the 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. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.156(a) (2007)). The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the evidence that has been associated with the claims file since the Board's August 2002 decision includes service medical records, VA and private treatment records, reports of VA examinations and written statements of the veteran, his representative, family members and acquaintances. With the exception of some of the written statements, which essentially restate assertions made prior to the Board's August 2002 decision, and the service medical records, which are duplicates of records previously associated with the claims file, the Board finds this evidence new. Such evidence was not previously submitted to agency decisionmakers and is neither cumulative, nor redundant of the evidence previously of record. The Board also finds this evidence material. Such evidence, by itself or when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim for service connection for depression and raises a reasonable possibility of substantiating that claim. This evidence, specifically, the treatment records, link the veteran's depression to the pain caused by his musculoskeletal disabilities, which now include service- connected knee and right ankle disabilities. The absence of this type of evidence formed the basis of the Board's previous denial of the veteran's claim. Having determined that new and material evidence has been received, the Board may reopen the claim of entitlement to service connection for depression, including as secondary to service-connected disability. The Board may not, however, decide this claim on its merits because, as explained below, VA has not yet satisfied its duty to assist the veteran in the development of this claim under the VCAA. 2. Degenerative Bone Growths The RO previously denied the veteran's claims of entitlement to service connection for cervical spine and low back disabilities in a rating decision dated September 2003. The RO denied the claims on the basis that, although the veteran then had cervical spine and low back disabilities, there was no evidence of record showing that these disabilities were related to service, including documented complaints of low back pain. In deciding the claim, the RO considered the veteran's service medical records, post-service treatment records, reports of VA examinations, and written statements of the veteran, his representative, family members and acquaintances. In a letter dated the same month, the RO notified the veteran of the September 2003 rating decision and of his appellate rights with regard to that decision. Thereafter, however, the veteran did not appeal the decision to the Board. The September 2003 rating decision is thus final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). The veteran attempted to reopen his claim for service connection for cervical spine and low back arthritis by written statement received in June 2003. The evidence that has been associated with the claims file since the RO's September 2003 rating decision includes service medical records, post-service treatment records, reports of VA examinations, and the veteran's and his representative's written statements. With the exception of the service medical records, this evidence is new because it was not previously submitted to agency decisionmakers and is neither cumulative, nor redundant of the evidence of record at the time of the last prior final denial. This evidence is not material, however, because, by itself or when considered with the evidence previously of record, it does not relate to an unestablished fact necessary to substantiate the claim for service connection for degenerative bone growths (claimed as arthritis of the back and cervical spine). In addition, it does not raise a reasonable possibility of substantiating that claim. The post-service treatment records and reports of VA examinations merely show that the veteran has continued to receive treatment for cervical spine and low back complaints, now attributable to, in part, arthritis. They do not include a medical opinion linking the cervical spine disability or low back disability to the veteran's service. The written statements reflect the veteran's belief that these disabilities are related to his active service. However, for the same reason noted earlier, such statements may not be considered a competent opinion on causation. Having determined that new and material evidence has not been received, the Board may not reopen and decide on its merits the claim of entitlement to service connection for degenerative bone growths (claimed as arthritis of the back and cervical spine). Rather, the claim must be denied. C. Claim for Automobile and/or Adaptive Equipment The veteran asserts that, due, in part, to his service- connected knee and right ankle disabilities, he needs an automobile to assist him in getting around. Allegedly, these disabilities, which cause the loss of use of his legs, necessitate the use of a cane, walker and/or scooter, thereby entitling him to a certificate of eligibility in the purchase of such automobile. VA will certify a claimant's eligibility for financial assistance in purchasing an automobile with adaptive equipment or adaptive equipment alone provided such claimant meets certain criteria. 38 U.S.C.A. § 3902 (West 2002); 38 C.F.R. § 3.808 (2007). An "eligible person" is one who, because of injury or disease incurred or aggravated during active military service, is entitled to receive VA compensation for loss, or permanent loss of use, of a hand or foot, or for permanent impairment of vision of both eyes, with central visual acuity of 20/200 or less in the better eye, or central visual acuity of more than 20/200 if there is a field defect in the better eye, or for ankylosis of a knee or a hip. 38 U.S.C.A. § 3901 (West 2002); 38 C.F.R. §§ 3.808, 17.156 (2007). At present, the veteran is entitled to receive VA compensation for bilateral knee and right ankle disabilities. Since his discharge from service, the veteran has received extensive treatment for, and undergone VA examinations of, these disabilities. During treatment visits and examinations, however, no medical professional has found these disabilities to be so severe as to cause the loss of use of a foot. 38 C.F.R. §§ 3.350(a)(2), 4.63 (2007) (providing that, as to hands and feet, the medical evidence of record must show that no effective function remains other than that which would be equally well served by an amputation stump with use of a suitable prosthesis). In addition, no medical professional has noted ankylosis of either knee. Inasmuch as the veteran is not entitled to receive VA compensation for loss, or permanent loss of use, of a hand or foot, permanent impairment of vision of both eyes, or ankylosis of a knee or a hip, he is not an "eligible person" with regard to the financial assistance he is seeking. Based on this finding, the Board concludes that the criteria for entitlement to a certificate of eligibility for financial assistance in purchasing an automobile and/or adaptive equipment have not been met. This claim is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution thereof. Rather, as a preponderance of the evidence is against the claim, it must be denied. ORDER Service connection for a right ankle disability is granted. Service connection for a hip disability, including as secondary to service-connected knee disabilities, is denied. Service connection for a muscle disability is denied. New and material evidence having been received, the claim of entitlement to service connection for depression is reopened and, to this extent only, granted. New and material evidence not having been received, the claim of entitlement to service connection for degenerative bone growths (claimed as arthritis of the back and cervical spine) is denied. A certificate of eligibility for financial assistance in purchasing an automobile and/or adaptive equipment is denied. REMAND The veteran claims entitlement to service connection for migraine headaches, including as secondary to service- connected disability, and depression and anxiety, and entitlement to evaluations in excess of 10 percent for left and right knee disabilities. Additional action is necessary before the Board decides these claims. As previously indicated, the VCAA provides that VA must notify a claimant of the evidence necessary to substantiate his claim and assist him in obtaining and fully developing all of the evidence relevant to his claim. In this case, with regard to the claims being remanded, VA has not yet provided the veteran adequate notice and assistance; therefore, to proceed in adjudicating these claims would prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. at 392-94. Under 38 U.S.C.A. § 5103A, VA's duty to assist includes pro vid ing a claimant a medical examination or obtaining a medical opinion whe n an examination or opinion is necessary to make a decision on a cla im. In thi s cas e, examinations in support of the veteran's service connection cla ims are nec ess ary . Reports of VA examinations afforded the veteran during the cou rse of thi s app eal and other medical evidence of record, including treatment rec ord s and opi nio ns of a VA physician conflict with regard to the etiology of the vet era n's hea dac hes and psychiatric symptomatology. Further medical inquiry is thus nee ded to rec onc ile the conflicting medical evidence now of record. In addition, in January 2008, the Court held that, with regard to claims for increased compensation, 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. Jan. 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. Such evidence includes 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 this case, during the course of this appeal, the RO pro vid ed the vet era n VCA A notice with regard to his claims for increased evaluations for his kne e dis abi lit ies . However, given the Court's recent decision, such notice is ina deq uat e. Based on the foregoing, this case is REMANDED for the fol low ing act ion : 1. Provide the veteran VCAA notice on his claims for increased evaluations, which complies with recent case precedent, discussed above. 2. Arrange for the veteran to undergo a VA examination in support of his claim for service connection for migraine headaches. Forward the claims file to the examiner for review of all pertinent documents therein, including letters the veteran wrote to his family during service, and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) opine whether the veteran's migraine headaches are at least as likely as not related to his active service, during which the veteran reported having had headaches, and, if not, whether they are proximately due to or the result of his service- connected knee and right ankle disabilities, including the pain caused thereby; and b) provide detailed rationale, with specific references to the record, for the opinions provided. 3. Arrange for the veteran to undergo a VA examination in support of his claim for service connection for anxiety and depression. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) diagnose any psychiatric disability shown to exist; b) opine whether such disability is at least as likely as not related to the veteran's active service and, if not, whether it is proximately due to or the result of his service-connected knee and right ankle disabilities, including the pain caused thereby; and c) provide detailed rationale, with specific references to the record, for the opinions provided. 4. Readjudicate the claims being remanded. For all denied claims, provide the veteran and his representative a supplemental statement of the case and an opportunity to respond thereto. Subject to current appellate procedure, return this case to the Board for further consideration. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the claims being remanded. No action is required of the veteran unless he receives further notice. He does, however, have the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that these claims be afforded expeditious treatment. 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 2002) (Historical and Statutory Notes) (providing that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled expeditiously); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court). ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs