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