Citation Nr: 0812706	
Decision Date: 04/17/08    Archive Date: 05/01/08

DOCKET NO.  04-31 063	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUES

1.  Entitlement to service connection for a left hand 
condition, status post surgery.

2.  Entitlement to service connection for a right hand 
condition.

3.  Entitlement to service connection for a bilateral arm 
condition.

4.  Entitlement to service connection for acid reflux 
disease, to include as secondary to the veteran's service 
connected cervical spine disability.

5.  Whether new and material evidence has been received to 
reopen a claim for service connection for a bilateral knee 
condition.

6.  Entitlement to service connection for a bilateral knee 
condition.

7.  Whether new and material evidence has been received to 
reopen a claim for service connection for headaches.

8.  Entitlement to service connection for headaches.

9.  Entitlement to an increased rating for a keloid scar of 
the chest, currently evaluated noncompensably.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans 
Affairs


ATTORNEY FOR THE BOARD

J. Smith, Associate Counsel


INTRODUCTION

The veteran served on active duty from April 1983 to August 
1998, with prior unverified service.
        
The veteran's claim comes before the Board of Veterans' 
Appeals (Board) on appeal from a January 2003 rating decision 
of the Department of Veterans Affairs' (VA) Regional Office 
(RO) in Montgomery, Alabama, that denied the benefits sought 
on appeal.  

The following issues are addressed in the REMAND portion of 
the decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC: entitlement to 
service connection for a left hand condition, a right hand 
condition, a bilateral arm condition, acid reflux disease, a 
bilateral knee condition, and headaches, and entitlement to 
an increased rating for a keloid scar of the chest, currently 
evaluated noncompensably.

FINDINGS OF FACT

1.  An unappealed rating decision of April 1999 denied 
service connection for headaches and a bilateral knee 
condition.

2.  The evidence pertaining to the veteran's headaches and 
bilateral knee condition received subsequent to the April 
1999 rating decision was not previously submitted, relates to 
an unestablished fact necessary to substantiate the claim, is 
not cumulative or redundant, and raises a reasonable 
possibility of substantiating the claims.   


CONCLUSIONS OF LAW

1. The April 1999 rating decision that denied service 
connection for headaches and a bilateral knee condition is 
final.  38 U.S.C.A. § 7105 (West 2002); 
38 C.F.R. § 20.1103 (2007).

2. New and material evidence has been received to reopen the 
veteran's claims for service connection for headaches and a 
bilateral knee condition. 38 U.S.C.A. § 5108 (West 2002); 38 
C.F.R. § 3.156 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In an April 1999 rating decision, the veteran was denied 
service connection for a bilateral knee disorder and 
headaches.  In May 1999 the veteran was mailed notice of the 
decision and of her appellate rights.  The veteran did not 
appeal this decision and it became final.  In January 2002 
the veteran filed a claim to reopen her previously denied 
claims for service connection for both a bilateral knee 
condition and headaches.

For claims such as this received on or after August 29, 2001, 
a claim shall be reopened and reviewed if "new and 
material" evidence is presented or secured with respect to a 
claim that is final.  Evidence is considered "new" if it was 
not of record at the time of the last final disallowance of 
the claim.  "Material" evidence is evidence which relates to 
an unestablished fact necessary to substantiate the claim.  
New and material evidence can be neither cumulative nor 
redundant of the evidence of record at the time of the last 
prior final denial and must raise a reasonable possibility of 
substantiating the claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 
3.156(a) (2005).  In determining whether evidence is new and 
material, the credibility of the evidence is to be presumed.  
Justus v. Principi, 3 Vet. App. 510, 513 (1992).  If it is 
determined that new and material evidence has been submitted, 
the claim must be reopened.  VA may then proceed to the 
merits of the claim on the basis of all of the evidence of 
record.

The evidence received since the RO's April 1999 denial of the 
veteran's claim for service connection for a bilateral knee 
disorder and for headaches, includes VA treatment records, 
other federal treatment records, and private medical 
treatment records.  This evidence is new because it was not 
previously associated with the claims file.

The evidence is material because it raises a reasonable 
possibility of substantiating the veteran's claim, and it is 
not cumulative or redundant of existing evidence.  The 
veteran's claim for service connection for a bilateral knee 
condition was denied by the RO in April 1999 because there 
was no diagnosis of a disability at the time.  The RO noted 
that the only diagnosed condition was arthralgia, and pain is 
not a disability for which service connection can be 
established.  Since that time, however, the veteran has 
received diagnoses pertaining to her knees on a number of 
occasions.  For example, osteoarthritis and degenerative 
changes have been noted in medical treatment records from 
June 2005, September 2004, May 2003, and September 2000.  As 
for her headaches, it appears that in April 1999 the RO 
denied service connection because there was no evidence of 
"an actually disabling condition" as the veteran was not 
shown to suffer from migraine headaches.  The Board finds 
that the current evidence pertaining to the veteran's 
headaches, while not necessarily indicative of migraine 
headaches, nonetheless establishes a disability for which 
compensation could be established, even if by analogy under 
the rating criteria for migraine headaches via 38 C.F.R. 
§ 4.20.  The evidence is clear that the veteran suffers from 
severe headaches.  For example, in April 2004 she was 
diagnosed with chronic headaches and was placed on 
prescription medication.  In April 2003 she was diagnosed 
with tension headaches and.  In February 2003 she was 
diagnosed with "stabbing headaches."  Also in February 2003 
migraine headaches were included on her "problem list" for 
an emergency room visit due to neck pain.  In December 2002 
the veteran was diagnosed with headaches based on her 
complaints of lancinating sharp left sided temporal pain, and 
the examining physician found it necessary to order a CT scan 
of her head, which was performed in January 2003.  

To establish service connection, the record must contain (1) 
medical evidence of a current disability, (2) medical 
evidence, or in certain circumstances, lay testimony, of in-
service incurrence or aggravation of an injury or disease, 
and (3) medical evidence of a nexus between the current 
disability and the in-service disease or injury.  As this new 
evidence now establishes a current diagnosis as to both the 
veteran's knees and headache condition, the first requirement 
for service connection has been met and the veteran's claims 
for service connection for these conditions are thus 
reopened. 

Notice and Assistance

A discussion addressing whether VA's duties to notify and 
assist the veteran have been complied with is not warranted.  
To the extent necessary, VA has fulfilled its duties to 
notify and to assist the veteran in the development of her 
claim.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 
5126 (West 2002).  In light of the determination reached in 
this case, no prejudice will result to the veteran by the 
Board's consideration of this appeal at this time.  Bernard 
v. Brown, 4 Vet. App. 384, 393-94 (1993).

It is further noted that as the issue on appeal is whether 
new and material evidence has been received, the Board calls 
attention to Kent v. Nicholson, 20 Vet. App. 1 (2006), which 
addresses notice requirements specific to new and material 
claims.  Essentially, under Kent, the veteran must be 
apprised as to the requirements both of the underlying 
service connection claim, as well as the definitions of new 
and material evidence.  Kent further requires that the notice 
inform the veteran as to the basis for the prior final denial 
and as to what evidence would be necessary to substantiate 
the claim.

Here, April 2002, January 2004, and March 2006 letters from 
the RO do not fully meet the requirements of Kent.  However, 
because the instant decision reopens the veterans' claim any 
deficiency with respect to notice regarding new and material 
evidence is moot.


ORDER

New and material evidence having been received, the veteran's 
claim for service connection for a bilateral knee condition 
is reopened.

New and material evidence having been received, the veteran's 
claim for service connection for headaches is reopened.


REMAND

At the outset, the Board notes VCAA deficiencies with regard 
to the claims on appeal.  As for her increased rating claim 
for the keloid scar, the Board calls attention to the Court's 
recent decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. 
Vet. App. January 30, 2008).  In Vazquez-Flores, the Court 
found that, at a minimum, adequate VCAA notice requires that 
VA notify the claimant that, to substantiate such a claim: 
(1) the claimant must provide, or ask VA 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; (2) if the 
diagnostic code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of 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; (3) 
the claimant must be notified that, should an increase in 
disability be found, a disability rating will be determined 
by applying relevant diagnostic codes; and (4) the notice 
must also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask VA to obtain) 
that are relevant to establishing entitlement to increased 
compensation.  In this case, the Board finds that the April 
2002, January 2004, and March 2006 VCAA letters do not 
contain the level of specificity set forth in Vazquez-Flores 
and that a remand in this regard is required.

In addition, in her January 2002 claim the veteran alleged 
her acid reflux disease is secondary to her service-connected 
neck disability.  While in later correspondence the veteran 
emphasizes that she also seeks direct service connection for 
this claim, which the RO should appropriately adjudicate in 
addition to secondary service connection, the veteran must be 
advised of the requirements for secondary service connection.  
The April 2002, January 2004, and March 2006 VCAA letters do 
not advise the veteran in this regard.  The VCAA letter 
should also generally advise the veteran to submit any 
pertinent evidence in her possession as to any of her claims.

In addition, it is essential that details about the character 
of the veteran's service be ascertained before adjudication 
can take place.  In a December 2003 letter, for example, the 
veteran alleges the onset of several of the conditions on 
appeal to be from the 1970s, and the file does contain 
service medical records from this time.  However, the 
veteran's duty status, including whether her service at that 
time constituted active duty, active duty for training, or 
inactive duty for training, is unknown.  This is essential 
information which must be obtained before adjudication can 
take place.



Accordingly, the case is REMANDED for the following action:

1.  Please send the veteran a corrective 
VCAA notice under 38 U.S.C.A. §5103(a) 
and 38 C.F.R. § 3.159(b), that includes 
but is not limited to the following 
information:
        
        A.  With regard to the veteran's 
increased rating 
claim for her keloid scar, provide the 
veteran with proper notice of the 
information or evidence needed to 
establish an increased rating claim 
pursuant to Vazquez-Flores v. Peake, No. 
05-0355 (U.S. Vet. App. January 30, 2008) 
as follows:
        (i). notify the veteran that she 
must provide, or 
ask VA 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
        (ii). provide the veteran with the 
rating criteria 
for the scar codes, specifically, 
DCs 7800-7805, under both the 
current version of the rating 
schedule as well as the version in 
effect prior to the August 30, 2002 
regulation change 
(iii).  notify the veteran that 
should an increase in disability be 
found, a disability rating will be 
determined by applying relevant 
diagnostic codes; and
(iv).  provide the veteran with 
examples of the types of medical and 
lay evidence that the claimant may 
submit (or ask VA to obtain) that 
are relevant to establishing 
entitlement to increased 
compensation.  

	B.  With regard to the veteran's 
claim for service connection for acid 
reflux disease, include the requirements 
for secondary service connection.

        C.  Advise the veteran to submit any 
pertinent evidence in her possession as 
to any of her claims on appeal.

2.  Contact the National Personnel Record 
Center and/or the appropriate service 
entity and request that (1) it verify the 
veteran's periods of active duty, active 
duty for training, and inactive duty for 
training, and (2) forward any and all 
available service medical records 
associated with such duty that are not 
already incorporated in the record.  If 
no additional service medical records are 
located or if the dates and character of 
the veteran's service cannot be 
ascertained, a written statement to that 
effect should be requested for 
incorporation into the record.

3.  After all of the above actions have 
been completed, a corrective notice and 
assistance letter has been issued, and 
the veteran has been given adequate time 
to respond, readjudicate her claims, to 
include affording the veteran VA 
examinations for her claims on appeal 
and/or a Gulf War VA examination, as 
appropriate.  If the claims remain 
denied, issue to the veteran a 
supplemental statement of the case, and 
afford the appropriate period of time 
within which to respond thereto.  

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

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



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs