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