Citation Nr: 0813451 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-10 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating for service-connected chondromalacia patella of the right knee, currently rated 10 percent disabling. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for migraine headaches. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for neck pain and muscle tension headaches. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for chondromalacia patella of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from June 1968 to January 1970, and from November 1970 to December 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision from the Reno, Nevada, VA Regional Office (RO). In November 2003, the veteran's claims file was transferred to the Oakland, California, RO. The issues of entitlement to an increased rating for service- connected chondromalacia patella of the right knee, and service connection for a back disability, migraine headaches, neck pain and muscle tension headaches, and chondromalacia patella of the left knee 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. FINDINGS OF FACT 1. In October 1973, the RO denied service connection for neck pain and muscle tension headaches. The veteran was notified of that decision in a letter dated in November 1973, did not timely appeal, and that decision is now final. 2. Evidence received since the October 1973 decision indicates the veteran's neck pain and muscle tension headaches may be due to service, and this additional evidence is so significant that it must be considered to fairly decide the merits of this claim. CONCLUSION OF LAW New and material evidence has been received, and the claim for service connection for neck pain and muscle tension headaches is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (prior to August 29, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Hansen v. Principi, 16 Vet. App. 110, 111 (2002). The RO denied entitlement to service connection for neck pain and muscle tension headaches in October 1973, and notified the veteran of such denial and his procedural and appellate rights by letter in November 1973. The veteran did not timely appeal and the decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. When a claim is the subject of a prior final denial, it may be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of the RO's action regarding this issue. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas- Gonzalez v. West, 12 Vet. App. 321, 328 (1999). Regarding claims filed before August 29, 2001, "new" evidence means evidence not previously submitted to VA decision makers that is neither cumulative nor redundant and "material" evidence means evidence that bears directly and substantially upon the specific matter under consideration and, by itself or in connection with the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a) (2001); 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). Evidence of record at the time of the October 1973 decision included service medical records and a VA examination. The stated basis for the October 1973 denial of the neck pain and muscle tension headaches claim was that it preexisted service and treatment on one occasion during service did not show that it was aggravated in service beyond the natural progress of the condition. In July 2001, the veteran again requested service connection for the disability. The evidence received subsequent to the October 1973 RO rating decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The veteran submitted a letter from J.M.B., M.D., dated in April 2003, who stated that the veteran has neck pain and muscle tension headaches due to inservice injuries. This is the first medical opinion of record which found that the veteran's neck pain and muscle tension headaches were either incurred or aggravated in service. This evidence bears directly and substantially upon the specific matter under consideration and, by itself, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Therefore, new and material evidence has been submitted. Accordingly, the claim of entitlement to service connection for neck pain and muscle tension headaches is reopened. 38 U.S.C.A. § 5108. Although the medical statement constitutes new and material evidence, it cannot provide the basis for a grant of service connection for the condition because it did not consider the veteran's medical records and past medical history. The claim will be remanded to obtain a definite opinion to determine the etiology of the veteran's neck pain and muscle tension headaches. In light of the favorable outcome of this appeal regarding whether new and material evidence has been submitted to reopen the claim, any perceived lack of notice or development cannot be considered prejudicial. The veteran will be afforded additional notice and development prior to a decision on the merits of the claim. ORDER The claim for service connection for a neck pain and muscle tension headaches is reopened. To this extent only, the appeal is granted. REMAND In an October 1973 rating decision, the RO denied the veteran's original claim for service connection for chondromalacia patella of the left knee based on a finding that there was no evidence he manifested such disability in service. The veteran was informed of the RO's decision, but he did not file a timely notice of disagreement. This decision is final. To successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. The VA has a duty to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The VA is also obligated to provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (holding that notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. See Kent, supra. In addition, VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service-connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. Id. VA must look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. The veteran has never received such notice regarding this claim. Therefore, the claim must be remanded to provide the veteran with notice which complies with these VA provisions and the subsequent Court decisions noted above. Regarding his service-connected chondromalacia patella of the right knee, and his back disability claim, the veteran failed to report for scheduled examinations in April 2007. However, the address listed for the veteran on the examination request was different from the one listed on a supplemental statement of the case issued that same month. It is unclear whether the veteran received notice of these examinations. Therefore, he should be rescheduled for such examinations. The examiner will also be requested to provide an opinion regarding the etiology of any migraine headaches found. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective notice under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); and Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice should explain the terms "new" and "material;" and explain the types of evidence that would be considered new and material. The notice should describe what evidence would be necessary to substantiate: the existence of chondromalacia patella of the left knee; a connection between the veteran's service and the current chondromalacia patella of the left knee (e.g., an opinion from an appropriate health care provider relating any current chondromalacia patella of the left knee to his period of military service) necessary to satisfy the element of the underlying claim which was found insufficient in the October 1973 decision; degree of the disability; and effective date if service connection is granted. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); Kent and Dingess/Hartman, supra. 2. Afford the veteran an appropriate examination to determine the nature and etiology of his back disability, neck pain and headaches, and chondromalacia patella of the right knee. The claims file and a copy of this remand should be made available to and be reviewed by the examiner. All necessary studies and tests should be conducted. The examiner should provide a rationale for the opinions provided. The examiner should examine the veteran and provide a diagnosis for all back and neck conditions, and/or types of headaches found. Based on review of the medical evidence of record and sound medical principles, the examiner should provide an opinion as to: A. Whether any back condition originated in service. B. Whether any diagnosed neck condition and/or headaches i.e., migraine or tension headaches, likely existed prior to service, or originated in service. If any disability is found to have likely existed prior to service, the examiner should provide an opinion as to whether the underlying condition underwent a permanent increase in severity due to service, or whether the complaints documented during service represent no more than an exacerbation of symptoms. If there was an increase in the severity of the underlying disability, the examiner should provide an opinion on whether that increase was due to the natural progress of the disorder. C. Whether there is recurrent subluxation or lateral instability of the chondromalacia patella of the right knee. If so, is it slight, moderate, or severe in degree? Provide results of range of motion testing, with special consideration as to whether there is additional functional loss due to pain, weakness, fatigue and incoordination. The examiner should also express an opinion on whether pain could significantly limit functional ability during flare-ups or when used repeatedly over a period of time. If possible, any such additional functional loss should be expressed in degrees of additional limitation of motion. 3. Then readjudicate the claims. If any claim continues to be denied, send the veteran and his representative a supplemental statement of the case and give them time to respond. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs