Citation Nr: 0811184	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  05-16 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
lumbar spine degenerative disc disease.

2.  Entitlement to service connection for lumbar spine 
degenerative disc disease.

3.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
cervical spine degenerative joint disease.

4.  Entitlement to service connection for cervical spine 
degenerative joint disease.

5.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for an 
acquired nervous disorder.

6.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
cerebral aneurysms.  

7.  Entitlement to service connection for cerebral aneurysms. 

8.  Entitlement to service connection for headaches.

9.  Entitlement to service connection for residuals of a left 
shoulder injury.

10.  Entitlement to service connection for residuals of a 
left arm injury.

11.  Entitlement to an increased rating for injury to Muscle 
Group XII (left leg), currently evaluated as 10 percent 
disabling. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

The veteran had active military service from July 1977 to 
July 1985.

This appeal comes to the Board of Veterans' Appeals (Board) 
from a November 2004-issued rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Huntington, 
West Virginia, that determined that new and material evidence 
had been received to reopen claims for service connection for 
lumbar spine degenerative disc disease, cervical spine 
degenerative joint disease, an acquired nervous disorder, and 
residuals of cerebral aneurysm.  That decision denied service 
connection for headaches, for residuals of a left shoulder 
injury, and for residuals of a left arm injury and denied an 
increased rating for injury to Muscle Group XII of the left 
leg.

Regardless of the RO's determination to reopen several 
service connection claims, the Board must address whether the 
evidence submitted is sufficiently new and material to reopen 
those claims.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. 
Cir. 1996), aff'd 8 Vet. App. 1 (1995) (Before considering a 
previously adjudicated claim, Board must determine that new 
and material evidence was submitted, making RO determination 
in that regard irrelevant.  38 U.S.C.A. §§ 5108, 7104).  If 
new and material evidence has been submitted, the Board will 
grant the application to reopen the claims and may then 
consider the claims on the merits.  

Service connection for lumbar spine degenerative disc 
disease, for cervical spine degenerative joint disease, for 
cerebral aneurysms, for headaches, for residuals of a left 
shoulder injury, and for residuals of a left arm injury are 
addressed in the REMAND portion of the decision below and are 
REMANDED to the Agency of Original Jurisdiction (AOJ) via the 
Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  By rating decision of September 2002, the RO denied 
service connection for lumbar spine degenerative disc 
disease, cervical spine degenerative joint disease, and for a 
nervous disorder and properly notified the veteran of that 
decision.  

2.  The veteran did not appeal the September 2002 RO decision 
and it became final.

3.  Evidence received at the RO since the September 2002 
rating decision raises a reasonable possibility of 
substantiating the claim for service connection for lumbar 
spine degenerative disc disease and service connection for 
cervical spine degenerative joint disease.  

4.  Evidence received at the RO since the September 2002 
rating decision does not raise a reasonable possibility of 
substantiating the claim for service connection for a nervous 
disorder.  

5.  By rating decision of July 2003, the RO denied service 
connection for residuals of aneurysm and notified the veteran 
and his representative of that decision.  

6.  The veteran did not appeal the July 2003 RO decision and 
it became final.

7.  Evidence received at the RO since the July 2003 rating 
decision raises a reasonable possibility of substantiating 
the claim for service connection for residuals of an 
aneurysm.  

8.  Injury to Muscle Group XII is manifested by loss of power 
of the left leg, painful use, and inability to keep up with 
work requirements; ragged, depressed, and adherent scars 
indicating wide damage to muscle groups are not shown.  


CONCLUSIONS OF LAW

1.  The September 2002 rating decision, which denied service 
connection for lumbar spine degenerative disc disease, 
cervical spine degenerative joint disease, and for a nervous 
disorder is final.  38 U.S.C.A. § 7105(c) (West 2002); 
38 C.F.R. §§ 20.302, 20.1103 (2007).

2.  New and material evidence has been received to warrant 
reopening the previously and finally denied claims of 
entitlement to service connection for lumbar spine 
degenerative disc disease and cervical spine degenerative 
joint disease and the claims are reopened.  38 U.S.C.A. 
§ 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007).

3.  New and material evidence has not been received to 
warrant reopening the previously and finally denied claim for 
service connection for an acquired nervous disorder and the 
claim is not reopened.  38 U.S.C.A. § 5108 (West 2002); 
38 C.F.R. § 3.156(a) (2007).

4.  The July 2003 rating decision, which denied service 
connection for residuals of an aneurysm, is final.  
38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 
20.1103 (2007).

5.  New and material evidence has been received to warrant 
reopening the previously and finally denied claim of 
entitlement to service connection for residuals of aneurysm 
and the claim is reopened.  38 U.S.C.A. § 5108 (West 2002); 
38 C.F.R. § 3.156(a) (2007).

6.  The criteria for a 20 percent schedular rating for injury 
to Muscle Group XII (left leg) are met.  38 U.S.C.A. §§ 1155, 
5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.55, 4.56, 4.73 
Diagnostic Code 5312 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As set forth at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 
5126 (West 2002 
& Supp. 2007), and at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
and 3.326(a) (2007), VA has a duty to notify and to assist 
claimants in substantiating a claim for VA benefits. 

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  VA must give notice to 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; 
(3) that the claimant is expected to provide; and (4) must 
ask the claimant to provide any evidence in her or his 
possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b) (1).  The RO must provide this notice 
prior to an unfavorable decision.  Mayfield v. Nicholson, 
444 F.3d 1328 (Fed. Cir. 2006).  

VA has attempted to satisfy its duty to notify the claimant 
of the information and any medical or lay evidence that is 
necessary to substantiate the claims by way of notices sent 
to the claimant in December 2001, April 2003, June 2004, May 
2005, and in March 2006.  These letters mention what evidence 
is required to substantiate the claims, the claimant's and 
VA's duty to obtain this evidence, and asks the claimant to 
submit relevant evidence in his possession.  

VA provided the additional notices recommended by the Court 
in Dingess v. Nicholson, 19 Vet. App. 473 (2006), in March 
2006.  Any timing error (see Mayfield, supra) has been cured 
by new notification followed by issuance of a supplemental 
statement of the case (SSOC).  Overton v. Nicholson, 20 Vet. 
App. 427, 437 (2006) (timing error may be cured by a new 
notification followed by readjudication of the claim).  

For an increased rating claim, § 5103(a) requires, at a 
minimum, that VA notify the claimant to 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, --- Vet. 
App. ---, 2008 WL 239951 (U.S. Vet. App. Jan. 30, 2008).  If 
the diagnostic code under which the disability 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 diagnostic codes that 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.  

VA's notice letters 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.  Id, at*4. 

The March 2006 notice letter provided specific information 
regarding increased rating claims.  The letter requested 
information about how the disability has affected the 
veteran's employment and the nature and severity of symptoms 
noticed.  The notice is sufficient according to standards set 
forth in Vazquez, supra.

The claimant has not identified, nor does the record 
indicate, that any additional evidence is necessary for 
adjudication of the claims.  Hence, no further notice or 
assistance to the claimant is required to fulfill VA's duty 
to assist.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 
15 Vet. App. 143 (2001).  Because all necessary development 
has been accomplished, adjudication may proceed without 
unfair prejudice to the claimant.  Bernard v. Brown, 4 Vet. 
App. 384 (1993).  

New and Material Evidence

When a claim has been disallowed by the RO, "the claim may 
not thereafter be reopened and allowed and a claim based upon 
the same factual basis may not be considered" unless new and 
material evidence has been presented.  38 C.F.R. §§ 3.156(a), 
20.1103 (2007).

Pursuant to 38 C.F.R. § 3.156(a) (2007), a claimant may 
reopen a finally adjudicated claim by submitting new and 
material evidence.  New evidence means existing evidence not 
previously submitted to agency decision makers.  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 neither be 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.

This version of 38 C.F.R. § 3.156(a) applies to any claim to 
reopen a finally decided claim received on or after August 
29, 2001.  The veteran's applications to reopen his service 
connection claims were received at the RO no earlier than 
March 2004, subsequent to the effective date of the revision.  
Therefore, this version of § 3.156(a) applies.   

In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United 
States Court of Appeals for the Federal Circuit stressed that 
newly submitted evidence could be material if it resulted in 
a more complete record for evaluating the disability.  

With respect to any application to reopen a finally decided 
claim, the credibility of the newly submitted evidence is 
presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

If new and material evidence is presented or secured with 
respect to a claim that has been disallowed, the Secretary 
shall reopen the claim and review the former disposition of 
the claim.  38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. 
App. 140, 145 (1991).

Lumbar Spine Degenerative Disc Disease

In a September 2002 RO rating decision, the Cleveland, Ohio, 
RO denied service connection for lumbar spine degenerative 
disc disease and degenerative joint disease.  The veteran and 
his representative were notified of the decision in a 
September 20, 2002, letter from the RO, but did not appeal.  
Thus, the rating decision became final.  38 U.S.C.A. § 
7105(b), (c) (West 2002).  That decision is the most recent 
final decision on the matter.  The Board must review all 
evidence submitted since then to determine whether any of it 
is sufficiently new and material to reopen the claim.  In 
order to determine what evidence is new, the Board must first 
review what evidence is old, that is, the evidence that had 
been considered in the September 20, 2002, and earlier RO 
rating decisions.  

The evidence of record at the time of the September 20, 2002, 
RO rating decision includes service medical records (SMRs), 
VA examination reports, VA treatment records, private medical 
reports, and claims and statements of the veteran, as 
discussed below.

The SMRs reflect that the veteran was treated for low back 
pain in March and November 1980 and once again in November 
1984.  An April 1985 separation examination report notes a 
normal spine.  

A September 1985 VA compensation examination report notes 
that the veteran fell down the stairs during active service, 
which resulted in a left leg injury.  No back injury was 
mentioned, however.  In October 1985, the veteran underwent a 
VA orthopedic consultation for a left leg injury, but no 
other injury was mentioned.  In December 1990, he requested 
service connection for an eye disability and for a nervous 
condition.  He related these disorders to a fall when on 
active duty.  He made no mention of a back injury, however.

In November 1995, the RO received VA outpatient treatment 
reports, one of which notes that the veteran was treated at a 
VA facility on February 16, 1988.  He had been in an auto 
accident one day prior, and was wearing a soft neck collar.  
A March 1988 VA mental health clinic consultation report 
notes nervousness, insomnia, crying, nightmares, and temper 
problems.  The assessment was anxiety disorder, not otherwise 
specified (NOS). 

A February 1989 medical certificate notes that the veteran 
presented to a VA emergency room with low back pain.  He had 
recently passed a kidney stone, but low back pain remained.  
The assessment was gastrointestinal pathology.

A May 1990 VA medical certificate notes a walk-in complaint 
for 2 days of back and neck pains.  The assessment was low 
back strain. 

A February 2005 VA neurology report notes that the etiology 
of chronic neck and low back pains included some signs that 
were suspicious for sub-arachnoid hemorrhage (SAH). 

A September 1995 VA muscles compensation examination report 
reflects the musculoskeletal system was unremarkable, except 
for tenderness in the lumbar and cervical area.  Full range 
of motion of the lumbar spine was reported.  

A January 1996 VA hospital report notes an overnight 
admission after a slip and fall injury at work at Wendy's.  
The veteran reportedly fell on his back and hit his head.  X-
rays of the thoracolumbar spine were normal.  The diagnoses 
were head trauma and muscle strain.

A February 1996 report from C. Craythorne, M. D., notes an 
evaluation of the January 1996 slip-and-fall injury for 
insurance purposes.  The veteran reported constant lumbar 
pain radiating to both buttocks and to the left leg.  

A March 1996 VA report notes that ever since a fall two 
months prior, the veteran had low back pains, hip pains, and 
neck pains.  The assessment was traumatic degenerative joint 
disease.  

In April 1996, private physician, R. Lowe, M.D., noted 
treatment for the neck and back since a disabling injury in 
January 1996.  

A June 1996 VA magnetic resonance imaging (MRI) report notes 
degenerative disc disease at the L5-S1 level.  An August 1997 
VA clinical record notes low back pain due to old injury.  
The assessments were degenerative joint disease and low back 
pain.  

A December 1998 VA outpatient treatment report notes low back 
pain.  The report mentions that since the fall in January 
1996, the veteran experienced an increase in preexisting back 
pains.  Another December 1998 report notes that low back pain 
radiated down both legs to the feet.

In May 1999, the RO denied service connection for back 
degenerative disc disease. The veteran did not appeal the 
decision.  

A VA hospital report reflects that during a March and April 
2001 hospitalization, the veteran reported chronic back pain 
since a fall in 1996.  

In a September 2002 rating decision, the RO denied service 
connection for degenerative disc disease of the lumbar spine.  
The RO based that denial on the absence of a link between the 
current degenerative disc disease and active service.  The 
veteran did not appeal the decision and it became final.

The Board will review the evidence submitted since the RO 
decision to determine whether any of it is new and material 
evidence, that is, whether it is neither cumulative nor 
redundant and whether it raises a reasonable possibility of 
substantiating the claim.  

The evidence submitted since the September 2002 RO decision 
includes a December 2003 request to reopen the claim.  The 
veteran reported that his back condition stemmed from an 
incident wherein another soldier pushed him down the stairs 
in or around July 1977.  

An October 2004 VA muscles compensation examination report 
reflects that the veteran reported that he was pushed down 
several flights of steps causing a left leg injury and back 
pains.  He complained of paresthesia and pains all over the 
body.  He was taking narcotics for chronic back pains.  

An October 2004 VA general medical examination report 
reflects that the veteran reported a fall in 1977 that 
resulted in chronic back pains.

In November 2004, the RO reopened the service connection 
claim, but denied service connection on the merits.  The RO 
did not mention what evidence was new and material to reopen 
the claim. 

Since November 2004, the RO has received duplicate private 
medical reports that are not new and material.

In November 2005, the veteran testified before an RO hearing 
officer that he was pushed, either accidentally or 
deliberately, down some stairs in July 1977 and had back pain 
thereafter. 

The veteran' s allegations of back pains since 1977 are new 
and material evidence to reopen the claim.  Prior to the 
current claim, all lay and medical evidence attributed the 
onset of back pains to a post-service injury in January 1996.  
Although the new allegations of back pains since 1977 must 
eventually be weighed against conflicting reports, for the 
purpose of reopening a claim, weighing such positive and 
negative evidence is not appropriate.  The credibility is 
presumed (Justus, supra,) and the veteran is competent to 
report personal symptoms.  38 C.F.R. § 3.159.  Given the 
benefit of the doubt doctrine set forth at 38 U.S.C.A. 
§ 5107; 38 C.F.R. § 3.102, the new evidence raises a 
reasonable possibility of substantiating the claim.  
Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (If lay 
evidence presented by a veteran is credible and ultimately 
competent, the lack of contemporaneous medical evidence 
should not be an absolute bar to the veteran's ability to 
prove his claim of entitlement to disability benefits based 
on that competent lay evidence.) 

Because the evidence submitted is sufficiently new and 
material to reopen the claim, the application to reopen the 
service connection claim must be granted.  The issue of 
service connection will be addressed further in the REMAND 
below.

Cervical Spine Degenerative Joint Disease

In a September 2002 RO rating decision, the RO denied service 
connection for cervical spine degenerative joint disease.  
The veteran and his representative were notified of the 
decision in September 2002, but did not appeal.  Thus, the 
rating decision became final.  38 U.S.C.A. § 7105(b), (c) 
(West 2002).  That decision is the most recent final decision 
on the matter.  The Board must review the evidence to 
determine whether new and material evidence has been 
submitted.  

The SMRs do not mention neck pain or neck injury.  An April 
1985 separation examination report notes a normal spine.  

A September 1985 VA compensation examination report notes 
that the veteran fell during active service and injured the 
left leg.  No neck injury was mentioned.  In October 1985, 
the veteran underwent a VA orthopedic consultation, but only 
the left leg was mentioned.  In December 1990, he requested 
service connection for other disabilities, but made no 
mention of a neck injury.

In November 1995, the RO received VA outpatient treatment 
reports, one of which notes that the veteran was treated at a 
VA facility on February 16, 1988.  He had been in an 
automobile accident one day prior, and was wearing a soft 
neck collar.  A May 1990 VA medical certificate notes a walk-
in complaint for 2 days of back and neck pains.  The neck was 
omitted from the assessment. 

A September 1995 VA muscles compensation examination report 
reflects the musculoskeletal system was unremarkable, except 
for tenderness in the lumbar and cervical spine.  Full range 
of motion of the neck was reported.  

A January 1996 VA hospital report notes an overnight 
admission after a slip and fall injury at work.  The veteran 
reportedly fell on his back and hit his head, but did not 
lose consciousness.  X-rays of the neck showed possible soft 
tissue swelling.  The diagnoses were head trauma and muscle 
strain.

A February 1996 report from Dr. Craythorne notes that X-rays 
of the spine taken immediately after the January 1996 injury 
showed osteophyte formation at C6-7 and an abnormal C5, felt 
to be unrelated to the acute injury.  Another physician 
reviewed these X-rays, but concluded that they did not show 
any abnormality.  During the examination, the veteran 
reported constant neck pain.  New X-rays showed spurring at 
C4 and C6 with no soft tissue swelling.  Magnetic resonance 
imaging (MRI) was recommended to rule out neck injury. 

A March 1996 VA report notes that ever since a fall two 
months prior, the veteran had neck pains.  The assessment was 
traumatic degenerative joint disease.  

In April 1996, R. W. Lowe, M.D., noted treatment for the neck 
since a disabling injury in January 1996.  On a medical 
report form dated in April 1996, Dr. Lowe noted that a 
computed tomography (CT) of the cervical spine suggested a 
synovial cyst. 

A June 1996 VA MRI report notes mild cervical spondylosis.  A 
July 1996 VA report notes a cervical synovial cyst.  

An August 1997 VA clinical record notes neck pains due to old 
injury and a reported history of a cervical spine synovial 
cyst.  The relevant assessment was degenerative joint 
disease.  

Additional VA records include a July 1998 VA nerve conduction 
velocity study that showed right C-7 radiculopathy.  A 
December 1998 VA outpatient treatment report notes neck pain.  
Possible cervical radiculopathy was found.  A January 1999 VA 
report notes that neck pains radiated to the shoulders and 
arms.  

In a September 2002 rating decision, the RO denied service 
connection for degenerative joint disease of the cervical 
spine.  The RO based that denial on the absence of a link 
between the current degenerative disc disease and active 
service.  The veteran did not appeal the decision and it 
became final.

The evidence submitted since the September 2002 RO decision 
includes a December 2003 request to reopen the claim.  The 
veteran reported that his neck condition stemmed from an 
incident wherein another soldier pushed him down the stairs 
in or around July 1977.  

A July 2004 VA CT of the cervical spine showed mild arthritic 
changes.

In November 2004, the RO reopened the service connection 
claim, but denied service connection on the merits.  The RO 
did not mention what evidence was new and material to reopen 
the claim. 

Since November 2004, the RO has received duplicate private 
medical reports that are not new and material.

A February 2005 VA neurology report notes that the etiology 
of chronic neck pains included some signs that were 
suspicious for SAH. 

In November 2005, the veteran testified before an RO hearing 
officer that he was pushed, either accidentally or 
deliberately, down some stairs in July 1977 and that he 
injured his head and spine. 

The allegation of a neck injury in a fall in 1977 is new and 
material evidence to reopen the claim.  Prior to the current 
claim, all lay and medical evidence attributed the onset of 
any neck pathology and pain to a January 1996 slip-and-fall 
injury.  Although the new allegation of neck pain since 1977 
must eventually be weighed against conflicting reports, for 
the purpose of reopening a claim, the veteran's credibility 
(and perhaps competence) is presumed (Justus, supra; 
38 C.F.R. § 3.159).  Thus, the new evidence raises a 
reasonable possibility of substantiating the claim.  
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Buchanan, supra. 

Because the evidence submitted is sufficiently new and 
material to reopen the claim, the application to reopen the 
service connection claim must be granted.  The issue of 
service connection will be addressed further in the REMAND 
below.

Acquired Nervous Disorder

In pertinent part of a February 1996 RO rating decision, the 
RO denied service connection for depressive disorder claimed 
as a nervous disorder.  The veteran was notified of the 
decision in a February 1996 letter from the RO.  He timely 
submitted a notice of disagreement (NOD) and the RO issued a 
statement of the case (SOC), but he did not submit a VA Form 
9, Substantive Appeal and the RO administratively closed the 
appeal.  Thus, the rating decision became final.  38 U.S.C.A. 
§ 7105(b), (c) (West 2002).  In May 1999 and again in 
September 2002, the RO determined that no new and material 
evidence had been submitted.  The veteran and his 
representative were properly notified, but did not appeal.  
Thus, the September 2002 rating decision is the most recent 
final decision on the matter.  The Board must review all 
evidence submitted to determine whether any of it is 
sufficiently new and material to reopen the claim.  

The SMRs reflect that the veteran was hospitalized during 
February and March 1982 for psychiatric evaluation.  A 
February 1982 psychiatric evaluator found psychosomatic pain.  
In March 1982, this diagnosis became psychological 
gastrointestinal reaction.  The veteran had reacted to a 
stressful situation that included a separation from his 
family.  Another March 1982 report notes psychophysiological 
reaction.  

In his original service connection claim submitted in July 
1985, the veteran requested service connection for an ulcer 
based on relevant treatment for gastrointestinal reaction.  

A March 1988 VA mental health clinic consultation report 
notes nervousness, insomnia, crying, nightmares, and temper 
problems.  The veteran reported a severe blow to the head in 
1982 for which he was hospitalized by the Army.  He reported 
that he had blackouts, headaches, increased irritability, and 
violent behavior since then.  He was given a tranquilizer for 
anxiety and sleep.  The assessment was anxiety disorder, not 
otherwise specified (NOS). 

In December 1990, the veteran requested service connection 
for a nervous condition.  He related the disorder to a fall 
when on active duty.  The claim was denied in March 1991.  

In April 1995, the veteran again claimed service connection 
for a nervous condition.  A July 1995 VA mental health clinic 
report notes anxiety, insomnia, irritability, and depression 
for the past year.  The veteran reported frequent headaches 
since a fall during active service in 1980 or 1981.  The 
assessment was anxiety disorder.   

According to a September 1995 VA mental disorders 
compensation examination report, the veteran did not work 
from 1985 to 1988 because of nervous problems.  He reported 
violent behavior since the 1980s.  The diagnosis was 
depressive disorder, NOS.  No etiology was offered.

A December 1995 VA mental health clinic report notes 
depression due to medical condition.  June and November 1996 
VA mental health clinic reports note depression, NOS.   

A July 2001 VA mental health clinic report notes a diagnosis 
of mood disorder secondary to medical condition; status post 
brain surgery.  

In a September 2002 rating decision, the RO determined that 
new and material evidence had not been submitted to reopen 
the claim.  The veteran did not appeal the decision and it 
became final.

The Board will review the evidence submitted since the RO 
decision to determine whether any of it is new and material 
evidence, that is, whether it is neither cumulative nor 
redundant and whether it raises a reasonable possibility of 
substantiating the claim.  

The evidence submitted since the September 2002 RO decision 
includes a December 2003 request to reopen the claim.  The 
veteran reported that his mental condition stemmed from an 
incident wherein another soldier pushed him down the stairs 
in or around July 1977.  

A December 2003 VA mental health clinic report notes a 
depressed mood since his spouse left him.  The impression was 
personality change secondary to brain injury secondary to 
ruptured aneurysm.  A February 2004 VA mental health clinic 
report noted personality change due to general medical 
condition. 

In November 2004, the RO reopened the service connection 
claim, but denied service connection on the merits.  The RO 
did not mention what evidence was new and material to reopen 
the claim. 

Since November 2004, the RO has received duplicate private 
medical reports that are not new and material.

In September 2005, the veteran testified before an RO hearing 
officer, but did not add any detail of the claim for service 
connection for a nervous disorder.  Since then, VA and 
private medical reports received at the RO are either 
duplicates of earlier submitted evidence or are not material 
to the issue of service connection for an acquired nervous 
disorder.   

The allegation that an acquired nervous disorder arose as a 
result of a fall in 1977 is not new and material evidence to 
reopen the claim.  Prior to the current claim, the veteran 
had made a similar claim, which was considered in a March 
1991 rating decision.  Thus, the allegation simply duplicates 
an earlier allegation.  

After considering all the evidence of record, including the 
testimony, the Board finds that the preponderance of it is 
against the claim.  Because the preponderance of the evidence 
is against the claim, the benefit of the doubt doctrine is 
not for application.  See 38 U.S.C.A. § 5107 (West 2002); 
Gilbert, supra.  The application to reopen a claim for 
service connection for an acquired nervous disorder is 
therefore denied.

Residuals of Cerebral Aneurysm

In a July 2003 RO rating decision, the RO denied service 
connection for residuals of aneurysm claimed as residuals of 
head injury.  The veteran and his representative were 
notified of the decision, but did not appeal.  Thus, the 
rating decision became final.  38 U.S.C.A. § 7105(b), (c) 
(West 2002).   

The SMRs reflect that in 1979, the veteran fell in the shower 
and hit his head.  A laceration was treated but X-rays were 
negative.  Headaches were noted at various times afterward, 
however.  

A March 1988 VA mental health clinic consultation report 
mentions that the veteran reported a severe blow to the head 
in 1982 for which he was hospitalized by the Army.  He had 
blackouts, headaches, increased irritability, and violent 
behavior since then.  He was given a tranquilizer for anxiety 
and sleep.  The assessment was anxiety disorder, not 
otherwise specified (NOS). 

A July 1995 VA mental health clinic report notes that the 
veteran reported frequent headaches since a fall during 
active service in 1980 or 1981.  The assessment was anxiety 
disorder.   

A January 1996 VA hospital report notes an overnight 
admission after a slip and fall injury at work.  The veteran 
reportedly fell on his back and hit his head, but did not 
lose consciousness.  The report notes that the veteran 
reported a history of a subdural hematoma in 1983.  A CT of 
the head was normal.  The diagnoses were head trauma and 
muscle strain.

In February 1996, Dr. Craythorne noted an evaluation of the 
January 1996 slip-and-fall injury for insurance purposes.  
The veteran reported no history of relevant injuries, but 
during the examination, he reported occipital headaches. 

In March 2001, the veteran underwent "clipping" of multiple 
bleeding cranial aneurysms at a private hospital after he had 
reported left-sided weakness and a change in mental status.  
After his discharge from that hospital, VA re-hospitalized 
the veteran until April 2001 because of the sudden onset of 
severe headaches.  Subsequent reports note left foot drop 
secondary to aneurysm.

In March 2003, the veteran reported that the Army had 
discharged him because of an aneurysm. 

In a July 2003 rating decision, the RO denied service 
connection for aneurysms or residuals of a head injury.  The 
RO based that denial on the absence of a link between the 
aneurysms treated in March 2001 and active service.  The 
veteran did not appeal the decision and it became final.

The Board will review the evidence submitted since the July 
2003 RO decision to determine whether any of it is new and 
material evidence, that is, whether it is neither cumulative 
nor redundant and whether it raises a reasonable possibility 
of substantiating the claim for service connection for 
residuals of aneurysm.  

The evidence submitted since the July 2003 RO decision 
includes a December 2003 request to reopen the claim.  

In a November 2004 rating decision, the RO reopened the 
service connection claim, but denied service connection on 
the merits.  The RO did not mention what evidence was new and 
material to reopen the claim. 

Since November 2004, the RO has received duplicate private 
medical reports that are not new and material.

In November 2005, the veteran testified before an RO hearing 
officer that he was first told that he had an aneurysm on 
February 8, 1978, at a Navy hospital.  He testified that he 
was told that it was a hematoma that would go away in time.  
He testified that soon after active service, he was told at 
St. Luke's private hospital in Puerto Rico that an X-ray 
showed a hematoma in his head.  He testified that current 
residuals of aneurysm were poor vision and reduced mental 
state.  

The veteran' s allegations with respect to having a hematoma 
during active service and having received private care at St. 
Luke's hospital soon after active service are sufficiently 
new and material evidence to reopen the claim.  Prior to the 
current claim, such evidence was not of record.  Although the 
veteran's allegations will be weighed against conflicting 
reports, for the purpose of reopening a claim, weighing the 
positive evidence against the negative is not appropriate.  
The veteran's credibility is presumed (Justus, supra,).  The 
veteran is competent to report personal symptoms and private 
treatment.  38 C.F.R. § 3.159.  Given the benefit of the 
doubt doctrine set forth at 38 U.S.C.A. § 5107; 38 C.F.R. 
§ 3.102, the new evidence raises a reasonable possibility of 
substantiating the claim.  Buchanan, supra (If lay evidence 
presented by a veteran is credible and ultimately competent, 
the lack of contemporaneous medical evidence should not be an 
absolute bar to the veteran's ability to prove his claim of 
entitlement to disability benefits based on that competent 
lay evidence.) 

Because the evidence submitted is sufficiently new and 
material to reopen the claim, the application to reopen the 
service connection claim must be granted.  The issue of 
service connection for residuals of aneurysm will be 
addressed further in the REMAND below.

Disability Rating for Injury to Muscle Group XII

Disability ratings are based upon the average impairment of 
earning capacity as determined by a schedule for rating 
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007).  
Diagnostic codes identify the various disabilities.  
38 C.F.R. Part 4.  The entire medical history is reviewed 
when making disability evaluations.  38 C.F.R. § 4.1; 
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  In 
determining the current level of impairment, the disability 
must be considered in the context of the whole recorded 
history, including service medical records.  38 C.F.R. § 4.2.  
Where there is a question as to which of two ratings shall be 
applied, the higher rating will be assigned if the disability 
picture more nearly approximates the criteria required for 
that rating.  38 C.F.R. § 4.7.  

Evaluation of a disability includes consideration of the 
veteran's ability to engage in ordinary activities, including 
employment, and the effect of symptoms on functional 
abilities.  38 C.F.R. § 4.10.

Where an increase in disability is at issue, the present 
level of disability, rather than remote history, is of 
primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  
The Court held that where the evidence contains factual 
findings that demonstrate distinct time periods in which the 
service-connected disability exhibited diverse symptoms 
meeting the criteria for different ratings during the course 
of the appeal, the assignment of staged ratings would be 
necessary.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The rating schedule contains general guidelines for rating 
all muscle injuries, which are briefly discussed below.  

A muscle injury rating will not be combined with a peripheral 
nerve paralysis rating of the same body part, unless the 
injuries affect entirely different functions.  38 C.F.R. 
§ 4.55(a) (2007).  

For VA rating purposes, the cardinal signs and symptoms of 
muscle disability are loss of power, weakness, lowered 
threshold of fatigue, fatigue-pain, impairment of 
coordination, and uncertainty of movement.  38 C.F.R. § 
4.56(c) (2007).  

According to § 4.56, an open or comminuted fracture with 
muscle or tendon damage will be rated as a severe injury of 
the muscle group involved, unless for certain locations the 
evidence establishes that the muscle damage is minimal.  
38 C.F.R. § 4.56(a) (2007).  Because no open or comminuted 
fracture has been shown, this subsection does not apply.  

The type of injury associated with a slight muscle disability 
is described as a simple muscle wound.  Significantly, a 
slight muscle disability results in no impairment.  Because 
the Muscle Group XII injury has resulted in measurable 
impairment, and because the RO has already assigned a rating 
that reflects moderate muscle disability, the Board must 
consider a greater rating.

Injury associated with a moderate muscle disability is 
described as being from through-and-through or deep 
penetrating wound of short track from a single bullet, small 
shell or shrapnel fragment, without explosive effect of high-
velocity missile, residuals of debridement, or prolonged 
infection.  

History should include service department record or other 
evidence of in-service treatment for the wound.  Record of 
consistent complaint of one or more of the cardinal signs and 
symptoms of muscle disability, as defined in paragraph (c) of 
this section, particularly lowered threshold of fatigue after 
average use, affecting the particular functions controlled by 
the injured muscles.  

Objective findings should include entrance and (if present) 
exit scars, small or linear, indicating short track of 
missile through muscle tissue.  Some loss of deep fascia or 
muscle substance, or impairment of muscle tonus, and loss of 
power or lowered threshold of fatigue when compared to the 
sound side.  38 C.F.R. § 4.56(d) (2).  

Injury associated with a moderately severe muscle disability 
is described as being from through-and-through or deep 
penetrating wounds by a small high-velocity missile or a 
large low-velocity missile, with debridement, prolonged 
infection, or sloughing of soft parts, and intermuscular 
scarring.  History should include prolonged hospitalization 
in service for treatment of the wound and consistent 
complaints of the cardinal signs and symptoms of muscle 
disability, and, if present, evidence of inability to keep up 
with work requirements.  Objective findings should include 
entrance and (if present) exit scars indicating the track of 
the missile through one or more muscle groups.  Tests of 
strength, endurance, or coordination movements compared with 
the corresponding muscles of the uninjured side demonstrate 
positive evidence of impairment.  Palpation of the muscles 
shows loss of deep fascia or of muscle substance or soft 
flabby muscles in the wound area, with moderate loss of deep 
fascia, muscle substance, or normal firm resistance of 
muscles as compared with the sound side.  38 C.F.R. § 4.56(d) 
(3).  

Injury associated with a severe disability of muscles 
includes a through and through or deep penetrating wound due 
to high velocity missile, or large or multiple low velocity 
missiles, or with a shattering bone fracture or open 
comminuted fracture with extensive debridement, prolonged 
infection, or sloughing of soft parts, intermuscular binding 
and scarring.  The history and complaint should include 
cardinal signs and symptoms of muscle disability (loss of 
power, weakness, lowered threshold of fatigue, fatigue-pain, 
impairment of coordination, and uncertainty of movement) 
worse than those shown for moderately severe muscle injuries, 
and, if present, evidence of inability to keep up with work 
requirements.  Objective findings show ragged, depressed, and 
adherent scars indicating wide damage to muscle groups in the 
track of the missile.  Tests of strength, endurance, or 
coordinated movements compared with the corresponding muscles 
of the uninjured side indicate severe impairment of function.  
Palpation of the muscles shows loss of deep fascia or of 
muscle substance or soft flabby muscles in the wound area.  
38 C.F.R. § 4.56(d) (4).  

Injury to Muscle Group XII has been rated 10 percent 
disabling for the entire appeal period under Diagnostic Code 
5312.  According to Diagnostic Code 5312, the function of 
Muscle Group XII is dorsiflexion of the foot, extension of 
the toes, and stabilization of the arch.  This muscle group 
includes the tibialis anterior, extensor digitorum longus, 
and the extensor hallucis longus.  Under Diagnostic Code 
5312, a noncompensable rating is warranted where the injury 
is slight.  A 10 percent rating is warranted for moderate 
injury.  A 20 percent rating is warranted for moderately 
severe injury.  A 30 percent rating is warranted for severe 
injury to Muscle Group XII.  38 C.F.R. § 4.73, Diagnostic 
Code 5312 (2007). 

Because a 10 percent rating for moderate muscle injury has 
already been assigned, the question is whether the 
manifestations more nearly approximate a moderately severe, 
or worse, muscle injury.  

The SMRs reflect prolonged hospitalization in service for 
treatment of a soft tissue injury of the left leg with 
persistent pain and swelling.  X-rays showed no fracture.  
Persistent swelling involved the left leg from above the knee 
to the left foot and included left ankle limitation of motion 
to about 50 percent of normal range.  The left leg muscle 
injury rendered the veteran unretainable by the Army and led 
to his medical discharge.  VA had originally rated the 
disability 10 percent disabling, but reduced that to 
noncompensable effective from September 1, 1996; however, the 
reduction was later found to be erroneous and the 10 percent 
rating was restored.  In March 2003, the veteran requested an 
increased rating.

According to a March 2004 VA muscles compensation examination 
report, the veteran had not worked since 1998 due to medical 
problems (including the left leg disability).  Following a 
ruptured cerebral aneurysm in 2001, left foot drop developed, 
which complicates the evaluation of the service-connected 
left leg muscle injury.  The veteran could walk less than one 
block and wore a left leg brace.  There was no evidence of 
muscle tissue loss, but the left calf measured 35 
centimeters, compared to 36 centimeters on the right.  A 
superficial scar that resulted from an in-service hematoma 
evacuation was not tender.  The examiner attributed left foot 
drop to a cerebral hematoma rather than injury to Muscle 
Group XII.  Passive range of motion of the left ankle was 
normal.  The veteran could not actively move the ankle due to 
paralysis.  

In September 2005, the veteran testified before an RO hearing 
officer, but was not asked about current left leg symptoms.  

A May 2007 VA muscles compensation examination report 
reflects that the original muscle injury caused a hematoma of 
the left leg, which implicated the circulatory system.  The 
examiner found pain, decreased coordination, and increased 
fatigability with uncertainty of movement.  The examiner also 
noted daily flare-ups of severe residuals.  Most of the 
functional impairment was due to painful limitation of motion 
of the left leg.  The examiner stated that both legs looked 
normal in appearance "with obvious muscle atrophy noted."  
The diagnosis was soft tissue trauma to left leg.

In this case, a through-and-through or deep penetrating wound 
due to high velocity missile, or large or multiple low 
velocity missiles, or with a shattering bone fracture or open 
comminuted fracture with extensive debridement, prolonged 
infection, or sloughing of soft parts, or intermuscular 
binding and scarring is not shown.  Cardinal signs and 
symptoms of muscle disability (loss of power, weakness, 
lowered threshold of fatigue, fatigue-pain, impairment of 
coordination, and uncertainty of movement) are shown, but 
they are not worse than those shown for moderately severe 
muscle injuries.  Inability to keep up with work requirements 
is clearly shown, which is a manifestation of both moderately 
severe and severe injury.  Objective findings do not show 
ragged, depressed, and adherent scars indicating wide damage 
to muscle groups.  

The chief symptoms in this case are loss of power of the left 
leg, painful use, and inability to keep up with work 
requirements.  These manifestations appear more nearly 
approximate the criteria for a moderately severe injury.  
Thus, a 20 percent rating must be granted.  

Extraschedular Consideration

The provisions of 38 C.F.R. § 3.321(b) (2007) provide that 
where the disability picture is so exceptional or unusual 
that the normal provisions of the rating schedule would not 
adequately compensate the veteran for his service-connected 
disability, an extra-schedular evaluation will be assigned.  
Where the veteran has alleged or asserted that the schedular 
rating is inadequate or where the evidence shows exceptional 
or unusual circumstances, the Board must specifically 
adjudicate the issue of whether an extraschedular rating is 
appropriate, and if there is enough such evidence, the Board 
must direct that the matter be referred to the VA Central 
Office for consideration.  If the matter is not referred, the 
Board must provide adequate reasons and bases for its 
decision to not so refer it.  Colayong v. West 12 Vet. 
App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 
(1995).  

In this case, injury to Muscle Group XII has not been shown, 
or alleged, to cause such difficulties as marked interference 
with employment or to warrant frequent periods of 
hospitalization or to otherwise render impractical the 
application of the regular schedular standards.  In the 
absence of evidence of such factors, the Board is not 
required to remand this matter to the RO for the procedural 
actions outlined in 38 C.F.R. § 3.321(b)(1).  See Bagwell v. 
Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. 
App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227.  See also 
VAOPGCPREC. 6-96. 


ORDER

New and material evidence having been submitted, the claims 
for service connection for lumbar spine degenerative disc 
disease, cervical spine degenerative joint disease, and 
residuals of aneurysms are reopened.  To this extent, those 
appeals are granted.

New and material evidence not having been submitted to reopen 
a claim for service connection for an acquired nervous 
disorder, the claim is denied.

A 20 percent schedular rating for injury to Muscle Group XII 
(left leg) is granted, subject to the laws and regulations 
governing payment of monetary benefits. 


REMAND

Service Connection for Lumbar Spine Degenerative Disc Disease 
and Cervical Spine Degenerative Joint Disease

The duty to assist includes obtaining a medical opinion on 
the matter.  38 U.S.C.A. § 5103A; McLendon v. Nicholson, 
20 Vet. App. 79 (2006).  In McLendon, the Court discussed the 
steps to be taken in determining whether a VA examination is 
necessary prior to final adjudication of a claim.  In 
disability compensation claims, VA must provide a medical 
examination when there is (1) competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability, (2) evidence establishing that an event, injury, 
or disease occurred in service, or establishing certain 
diseases manifesting during an applicable presumptive period 
for which the claimant qualifies, and (3) an indication that 
the disability or persistent or recurrent symptoms of a 
disability may be associated with the veteran's service or 
with another service-connected disability, but (4) there is 
insufficient competent medical evidence on file for the 
Secretary to make a decision on the claim.  38 U.S.C.A. 
§ 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i).  The Court 
observed that the third prong, which requires that the 
evidence of record "indicates" that the claimed disability 
or symptoms "may be" associated with the established event, 
is a low threshold.  McLendon, 20 Vet. App. at 83.  

The veteran has reported neck and back injuries concurrent 
with the leg injury during active service.  The SMRs doe 
reflect the leg injury.  The veteran alleges continuous low 
back and neck pains since that time and a diagnosis of 
traumatic degenerative joint disease has been made.  Although 
the case is complicated by an intercurrent neck and low back 
injury in 1996, the four-pronged McLendon test set forth 
above is met.  VA must offer the veteran an examination to 
determine the nature and etiology of his low back and neck 
disorders.  

Service Connection for Residuals of Aneurysms

During a hearing in September 1995, the veteran alleged that 
he received treatment for a cranial aneurysm almost 
immediately after discharge from active service.  He 
reportedly received this treatment at St. Luke's Hospital in 
Puerto Rico.  It does not appear that these private medical 
records have been obtained.  Where the veteran is attempting 
to reopen a previous service connection claim, VA's duty to 
assist includes obtaining VA and non-VA medical records.  
38 C.F.R. § 3.159(c); Duenas v. Principi, 18 Vet. App. 512 
(2004).  

The duty to assist where the claim has been reopened includes 
providing a VA medical examination where necessary.  
38 C.F.R. § 3.159(c)(4); McLendon, supra.  It would be 
helpful prior to adjudication if the veteran were examined to 
determine whether one or more cerebral aneurysm was caused by 
active service, and, if so, whether there is a current 
disability stemming from such aneurysm.  

Service Connection for Headaches

The SMRs reflect that in 1979 the veteran fell in the shower 
and hit his head.  A laceration was treated but X-rays were 
negative.  Headaches were noted at various times afterward.  
He was treated for headache in August 1982 and in April 1983.  
An April 1985 separation examination report does not mention 
headaches. 

A February 1988 VA outpatient treatment report reflects that 
the veteran reported a severe blow to the head in 1982 for 
which he was hospitalized by the Army.  He had blackouts, 
headaches, increased irritability, and violent behavior since 
then.  In June 1989, the veteran had headaches and watery 
eyes.  A July 1995 VA mental health clinic report notes hat 
the veteran reported frequent headaches since a fall during 
active service in 1980 or 1981. 

Dr. Craythorne's February 1996 report notes that after a 
January 1996 slip-and-fall injury, the veteran reported no 
previous relevant injury.  During the examination, the 
veteran reported occipital headaches.  

In March 2001, the veteran underwent "clipping" of multiple 
bleeding cerebral aneurysms at a private hospital after he 
had reported the sudden onset of headaches.  In December 
2003, he reported that headaches resulted from being pushed 
down the stairs in 1979.

In November 2005, the veteran testified before an RO hearing 
officer that he was pushed down some stairs in July 1977 and 
had headaches thereafter.  

The 4-pronged McLendon test to determine whether an 
examination is necessary is met.  There is competent evidence 
of current headache symptoms.  A head injury did occur during 
active service.  There is an indication that current 
headaches may be associated with active service.  But, there 
is insufficient evidence to grant the claim at this time.  
Thus, VA's duty to assist includes offering the veteran an 
examination to determine the nature and etiology of his 
claimed headaches.  

Service Connection for a Left Shoulder Injury

The SMRs are negative for any complaint or treatment for the 
left shoulder.  An April 1985 separation examination report 
does not note a relevant abnormality.  

A September 1985 VA compensation examination report notes 
that the veteran fell down the stairs during active service, 
which resulted in a left leg injury.  A shoulder injury was 
not mentioned.  In October 1985, the veteran underwent a VA 
orthopedic consultation for a left leg injury, but no other 
injury was mentioned. 

A September 1995 VA muscles compensation examination report 
does not mention the left shoulder.  Dr. Craythorne's January 
1996 examination does not mention a shoulder complaint; 
however, an August 1997 VA clinical record notes neck, low 
back pain, and left arm and left leg pains due to old injury 
and a January 1999 VA report notes that neck pains radiated 
to the shoulders and arms.  

In December 2003, the veteran reported that a left shoulder 
condition stemmed from an incident wherein another soldier 
pushed him down the stairs in or around July 1977.  A January 
2005 VA neurology consultation report notes a complaint of 
chronic left shoulder pains.  

In November 2005, the veteran testified before an RO hearing 
officer that he was pushed down some stairs in July 1977 and 
injured his left shoulder.  

The 4-pronged McLendon test is met.  There is competent 
evidence of left shoulder symptoms.  An injury did occur 
during active service, which raises the question of direct 
service connection.  Moreover, the issue of secondary service 
connection is also raised, as there is evidence of cervical 
spine radiculopathy to the left shoulder.  However, there has 
not been an examination of the left shoulder to determine the 
nature and etiology of any current left shoulder disability.  
Thus, there is insufficient evidence to grant the claim at 
this time.  An examination prior to appellate adjudication to 
determine the nature and etiology of any left shoulder 
disorder is necessary.  

Service Connection for a Left Arm Injury

The SMRs do not mention the left arm.  An April 1985 
separation examination report notes normal upper extremities.  

A September 1985 VA compensation examination report does not 
mention a left arm injury.  In October 1985, the veteran 
underwent a VA orthopedic consultation for a left leg injury, 
but no other injury was mentioned.  

An August 1997 VA clinical record notes left arm pains due to 
old injury.  A July 1998 VA nerve conduction velocity study 
showed C-7 radiculopathy.  A December 1998 VA outpatient 
treatment report notes that possible cervical radiculopathy 
was found.  A January 1999 VA report notes that neck pains 
radiated to the shoulders and arms.  

In December 2003, the veteran reported that a left arm 
condition stemmed from an incident wherein another soldier 
pushed him down the stairs in or around July 1977.  

An October 2004 VA muscles compensation examination report 
reflects that the veteran complained of left upper extremity 
pain and paresthesia.

In November 2005, the veteran testified before an RO hearing 
officer that he was pushed down some stairs in July 1977 and 
had left arm pain thereafter.  He testified that he reported 
left arm pains at his medical board appearance.

The 4-pronged McLendon test is met.  There is competent 
evidence of left arm symptoms.  An injury did occur during 
active service, which raises the question of direct service 
connection.  Moreover, the issue of secondary service 
connection is also raised, as there is evidence of cervical 
spine radiculopathy to the left arm.  However, there has not 
been an examination to determine the nature and etiology of 
any current left arm disability.  Thus, there is insufficient 
evidence to grant the claim at this time and an examination 
is necessary.  

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should attempt to locate any 
private record of treatment for a 
cerebral aneurysm that the veteran 
reportedly received at St. Luke's 
Hospital in Puerto Rico shortly after 
discharge from active service.  If the 
search yields no record, the AOJ must 
document that fact in the claims file.  

2.  After the development requested above 
has been completed, the AOJ should make 
arrangements with the appropriate VA 
medical facility for the veteran to be 
afforded an orthopedic examination by an 
appropriate specialist.  The claims file 
should be made available to the physician 
for review of the pertinent evidence.  
The physician should elicit a complete 
history of cervical and lumbar spine 
trauma and any left shoulder and left arm 
trauma from the veteran, and answer the 
following:

I.  What is the current diagnosis or 
diagnoses relative to the cervical 
and lumbar spine and the left 
shoulder and left arm?

II.  For each diagnosis offered, is 
it at least as likely as not that 
this disability had its onset in 
service?  

III.  If, and only if, the cervical 
spine disability is found to have 
had its onset during active service, 
but the left shoulder disability is 
not found to have had its onset 
during active service, then, is it 
at least as likely as not that any 
left shoulder symptom is caused or 
aggravated by the cervical spine 
disability?  

If, and only if, the cervical spine 
disability is found to have had its 
onset during active service, but any 
left arm disability is not found to 
have had its onset during active 
service, then, is it at least as 
likely as not that any left arm 
symptom is caused or aggravated by 
the cervical spine disability?  

IV.  The physician should offer a 
rationale for any conclusion in a 
legible report.  If any question 
cannot be answered, the physician 
should state the reason.

3.  The AOJ should also arrange for an 
examination by an appropriate specialist 
to determine the nature and etiology of 
any cerebral aneurysm and the nature and 
etiology of the veteran's headaches.  The 
physician should review the pertinent 
evidence in the claims file, examine the 
veteran, elicit a complete history of 
symptoms from the veteran, and offer a 
diagnosis.  The physician should address 
whether it is at least as likely as not 
(50 percent or greater probability) that 
an aneurysm began during active service.  
The physician should address whether it 
is at least as likely as not that a 
headache disorder, if found, began during 
active service.  The physician should 
offer a rationale for any conclusion in a 
legible report.  If any question cannot 
be answered, the physician should state 
the reason.  

4.  After the development requested above 
has been completed to the extent 
possible, the AOJ should readjudicate the 
service connection claims.  If the 
benefits sought remain denied, the 
veteran and his representative should be 
furnished a supplemental statement of the 
case and given opportunity to respond.

Thereafter, the case should be returned to the Board, if 
otherwise in order.  The purposes of this remand are to 
comply with due process of law and to further develop the 
veteran's claims.  No action by the veteran is required until 
he receives further notice; however, the veteran is advised 
that failure to cooperate by reporting for examination may 
result in the denial of the claim.  38 C.F.R. § 3.655 (2007).  
The Board intimates no opinion, either legal or factual, as 
to the ultimate disposition warranted in this case, pending 
completion of the above.

The veteran has the right to submit additional evidence and 
argument on 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).



______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals







 Department of Veterans Affairs