Citation Nr: 1017709 Decision Date: 05/13/10 Archive Date: 05/26/10 DOCKET NO. 06-17 935A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for fracture of the nose. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for carbuncles. 4. Entitlement to service connection for nightmares and memory loss. 5. Entitlement to service connection for pain and burning sensations in the legs, shoulders, arms, and neck. 6. Entitlement to service connection for an eye disorder. 7. Entitlement to service connection for hypertension. 8. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for cervical myofascitis. 9. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic lumbar strain with degenerative disc disease. 10. Entitlement to an initial compensable evaluation for hepatitis C. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from April 1971 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for fracture of the nose; headaches; carbuncles; nightmares and memory loss; pain and burning sensation in the legs, shoulders, arms, and neck; and for an eye disorder; and found that new and material evidence had not been submitted to reopen claims of entitlement to service connection for chronic lumbar strain with degenerative disc disease and cervical myofascitis. In the April 2006 statement of the case (SOC), the RO reopened the claims for service connection for chronic lumbar strain with degenerative disc disease and cervical myofascitis, and after considering those claims on the merits, denied service connection for chronic lumbar strain with degenerative disc disease and cervical myofascitis. This matter further comes before the Board from a May 2007 rating decision in which the RO, in pertinent part, denied service connection for hypertension. The Board acknowledges that in a May 2008 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge at VA Central Office in Washington. The record reflects that the Veteran has been incarcerated since at least January 1986 and is serving a life sentence. Thus, because the Veteran is serving a life sentence in a state prison, his appearance at a personal hearing before a Veterans Law Judge is essentially an impossibility, and no additional development is required at this time regarding this request. With regard to the issues of whether new and material evidence has been submitted to reopen claims for service connection for cervical myofascitis and for chronic lumbar strain with degenerative disc disease, the Board notes that before it may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. See Barnett v. Brown, 8 Vet. App. 1 (1995); 83 F.3d 1380 (Fed. Cir. 1996). Furthermore, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. McGinnis v. Brown, 4 Vet. App. 239 (1993). The record reflects that by May 2007 rating decision, the RO also denied service connection for hepatitis C. The Veteran filed a timely notice of disagreement. By March 2008 rating decision, however, the RO granted service connection for hepatitis C and assigned a 0 percent (non-compensable) disability rating. In a letter received from the Veteran in October 2008, he claimed he had had "sent the notice of disagreement and had the medical records sent" regarding his rating of 0 percent for his hepatitis C claim. He claimed he had "appealed that claim also with the hypertension claim". In that regard, the Board notes that although the Veteran has perfected an appeal of the denial of service connection for hypertension, the Veteran has not perfected an appeal of the initial 0 percent rating assigned for hepatitis C. It is unclear as to what document the Veteran might be referring when he indicated he sent a notice of disagreement regarding the 0 percent rating for his hepatitis C. In order to perfect an appeal, the Veteran would need to have filed a timely notice of disagreement, a statement of the case (SOC) would need to have been issued, and he would have then needed to file a timely substantive appeal (VA Form 9). As the October 2008 communication from the Veteran may itself serve as a notice of disagreement to the March 2008 rating, the issue of entitlement to an initial compensable rating for hepatitis C is remanded to the RO via the Appeals Management Center (AMC) so that a SOC may be issued to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). The issues of entitlement to service connection for headaches, nightmares and memory loss, and for pain and burning sensation in the legs, shoulders, arms, and neck, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The Veteran is not shown to currently have residuals of a nose fracture that may be related to active service or any incident therein. 2. The preponderance of the evidence of record is against a finding that the Veteran has carbuncles that are related to active military service. 3. The preponderance of the evidence of record is against a finding that the Veteran has an eye disorder that is related to active military service. 4. The competent and probative medical evidence of record preponderates against a finding that the Veteran's hypertension is related to active military service or any incident thereof, or that it was manifested within one year of his separation from service. 5. By August 1977 rating decision, the RO denied service connection for cervical myofascitis based on a finding that this condition was not incurred in or aggravated by active military service. The RO also denied service connection for chronic lumbar strain, based on findings that such condition was not incurred in or aggravated by active military service, was not shown to be related to a complaint of low back pain in service, and there was no continuity of low back problems since service. The Veteran did not perfect an appeal of the August 1977 determination, and it became final. 6. Evidence received subsequent to the final August 1977 RO rating decision was not previously submitted to agency decisionmakers, and arguably relates to an unestablished fact necessary to substantiate the claims for service connection for chronic lumbar strain with degenerative disc disease and for cervical myofascitis, but does not raise a reasonable possibility of substantiating those claims. CONCLUSIONS OF LAW 1. Residuals of a fracture of the nose were not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 2. Carbuncles were not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 3. An eye disorder not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 4. Hypertension was not incurred in or aggravated by service, and cannot be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 5. The August 1977 RO rating decision, which denied service connection for cervical myofascitis and for chronic lumbar strain, is the last previous final disallowance of those claims. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d) (2009). 6. Evidence received since the August 1977 RO rating decision is new but not material, and the Veteran's claims for service connection for cervical myofascitis and for chronic lumbar strain may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). Proper notice from VA must inform 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the United States Supreme Court (Supreme Court) has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of a decision of the Board, a court shall take due account of the rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March 2005, April 2005, May 2005, July 2005, April 2006,and March 2007 that fully addressed the notice elements in this matter. These letters informed him of what evidence was required to substantiate the claims decided herein and of his and VA's respective duties for obtaining evidence. The Board also notes that the RO sent the Veteran a letter in March 2006 informing him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board notes that the Veteran was not scheduled for VA examinations regarding the claims for service connection for fracture of the nose, carbuncles, an eye disorder, and hypertension. Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post- service treatment for a condition or other possible association with military service. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claims for service connection for fracture of the nose and an eye disorder, as explained below, there is no competent evidence of a current disability. The Board finds that the Veteran's lay assertions that he has problems breathing due to his nose fracture in service and that he has eye troubles due to boxing in service go beyond the Veteran's competency as a layperson to report persistent or recurrent symptoms of disability. With regard to the claims for service connection for hypertension and carbuncles, there is competent medical evidence of a current disability. There is, however, no pertinent event, injury, or disease in service which these disabilities might be related to. The Veteran claims these disabilities resulted from his boxing, however, STRs show no evidence of symptoms, diagnoses, injuries, or other events in service to suggest a relationship to the Veteran's boxing in service. Therefore, in the absence of current symptoms and events in service that suggest a relationship to boxing, VA examinations are not necessary. Moreover, although the Veteran has contended that these disabilities are related to service, his lay statements alone are not competent evidence to support a finding on a medical question (such as diagnosis or etiology) requiring special experience or special knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board also notes that in the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 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. The VCAA requires, in the context of a claim to reopen, the Secretary to 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 the claim that were found insufficient in the previous denial. In this case, regarding whether new and material evidence has been submitted to reopen claims of entitlement to service connection for chronic lumbar strain with degenerative disc disease and cervical myofascitis, the Board notes that the Veteran has been informed of the evidence necessary to establish his eligibility for VA benefits and of the necessity of presenting new and material evidence along with that definition. Thus, the Board concludes that the April 2005 letter from the RO provided to the Veteran adequate notification, compliant with the VCAA and Kent v. Nicholson, supra, and that he has not been prejudiced by the notice and assistance provided. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims decided herein. The RO has obtained the Veteran's VA treatment records dated prior to his incarceration. Since his incarceration, his treatment records from the Michigan Department of Corrections have been obtained. As explained above, VA examinations were not provided in this matter. Thus, it appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. 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); see also Quartuccio v. Principi, supra. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection Claims 1. Factual Background Service treatment records (STRs) show that in March 1972 the Veteran underwent an x-ray which showed fracture of his nasal bones. It was noted that he had been struck in the nose and had swelling. Service personnel records show that the Veteran was on the Army boxing team. His principal duty was physical activities specialist. A VA hospital summary showed that the Veteran was hospitalized from December 1973 through January 1974 for seborrhea dermatitis of the scalp with secondary furunculosis, and lymphadenitis of the posterior cervical region. A February 1977 hospital summary showed that he was hospitalized for incision and drainage of multiple abscesses of the scalp, diagnosed as hydradenitis of the scalp. On VA examination in May 1977, the Veteran complained of headaches, eye trouble, and neck trouble. The diagnoses included post-operative keloid scar in occipital, with no infection of scalp at present. A VA hospital summary showed that the Veteran was hospitalized from June to July 1977, again for treatment for hydradenitis of the scalp. Received from the Veteran in March 2005 was a statement in which he reported having surgery on the back of his head at a VA hospital in 1975 or 1976 for carbuncles, and that he first had this problem when he was on the Army boxing team. He reported having trouble breathing because of his nose being broken at Fort Bragg, while training with a sparing partner. He claimed that all of the head blows he received in service made his eyes go bad. A May 2005 private treatment record showed that the Veteran was seen for his hypertension. Received from the Veteran in November 2005 was his notice of disagreement, in which he reported that he had been having chronic problems with his nose ever since it was broken in the Army, and that this caused his eyes to hurt and be sensitive to light. He reiterated having surgery at the Saginaw VA Hospital for an infection on the back of his head, but indicated he may have gotten the dates wrong. In an April 2006 private treatment record, the Veteran reported having carbuncle surgery to the neck in 1977. In a May 2006 statement, the Veteran claimed service connection for hypertension. He claimed his hypertension was caused by the nature of his work boxing in service, with all the tension from each fight. He acknowledged that his STRs from April 1971 to August 1972 reflected no treatment for hypertension, and that a "medical opinion is needed to confirm this claim". Received in June 2007 was a notice of disagreement in which the Veteran reported he had multiple risk factors which could have caused his hypertension, including boxing in service, with all the tension and blows from each fight. Treatment records from the Michigan Department of Corrections showed that in July 2008, the assessment included essential hypertension, onset in June 2007. Received from the Veteran was a VA Form 9 dated in November 2008 in which he indicated that his hypertension was secondary to head trauma or medications, and that vision problems could be caused by high blood pressure. He included a medical excerpt regarding hypertension and an undated newspaper article with a photo regarding the veteran and his various boxing awards he received during and after high school. In a November 2008 letter, the Veteran indicated that he wanted to "keep the carbuncles claim". He claimed he had an infection and was treated at the VA Hospital in Saginaw and had major surgery on the back of his head, and that since that time he had headaches and pains and his memory loss worsened. He reported he had been in prison for about 24 years, unlawfully, and that if the Court acted favorably on his motion for reconsideration he could be out of prison and able to go to a VA hospital soon. Received from the Veteran's representative in May 2009 was a Statement of Accredited Representative in Appealed Case (VA Form 646), in which his representative contended that VA was not doing all that could be done to assist the Veteran in this case. His representative claimed that all but one of the issues on appeal was more likely than not caused by his being a boxer for the U.S. Army, and that the other issue (service connection for carbuncles) was related to treatment at a VA Hospital. 2. Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active military service, and a chronic disease (including hypertension) becomes manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board does recognize that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran contends that he has residuals of a nose fracture and an eye disorder, that are related to service. With regard to these claims, the Board finds that there is no competent evidence of any current eye disability, and although he was treated for a nose fracture in service, in March 1972, there has been no current residual or related disability shown. Brammer v. Derwinski, supra. Full consideration has been given to the Veteran's own assertions that he has residual disability from a nose fracture in service, as well as an eye disorder which is related to service; however, he is a layperson, and as such he has no competence to render a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, supra. Lay statements may, however, serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. If the Veteran had ongoing nose or eye complaints or symptoms from service to the present, he would certainly be competent to report those symptoms. However, the Board does not believe that a chronic nose or eye disability, as contrasted with symptoms, is subject to lay diagnosis. The Board finds no basis for concluding that a lay person would be capable of discerning what disorder his complaints or symptoms represented, in the absence of specialized training, which the Veteran in this case has not established. The Board recognizes the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall evidence of record fails to support a diagnosis of the claimed disability, that holding is inapplicable. Based upon the foregoing and the lack of competent medical evidence of a residual disability from a nose fracture or of an eye disorder, the Board concludes that the Veteran is not entitled to service connection for those conditions. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection for a fracture of the nose and for an eye disorder must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the claims for service connection for hypertension and carbuncles, the record reflects that the Veteran currently has hypertension, for which he has been treated since at least 2005. The record also reflects that in 1973 he was treated for seborrhea dermatitis, furunculosis, and lymphadenitis of the posterior cervical region, and in 1977 he was hospitalized twice for treatment for hydradenitis of the scalp. Although the record shows no exact diagnosis of carbuncles, it appears that in using the term "carbuncles", the Veteran is referring to the conditions for which he was treated in 1973 and 1977. Thus, he arguably has a current disability, even though 1977 was the last notation of any such related disability. See McClain v. Nicholson, supra. STRs are negative for complaints, findings, or treatment of carbuncles or hypertension. What is missing in this case is competent medical evidence linking the Veteran's hypertension and/or carbuncles to service. To that end, the Veteran has submitted no competent medical evidence linking his hypertension or carbuncles to service. Private treatment records do show that the Veteran was seen for treatment for his hypertension; however, such records show that he was first seen for hypertension in 2005, and another notation shows that his hypertension had an onset in Jun 2007. With regard to the Veteran's lay statements that his hypertension was caused by his boxing in service and that his carbuncles, for which he was treated just over a year after his discharge from service, are related to service, the Board acknowledges that he is competent to report his observations and symptoms. However, with regard to any lay assertions by the Veteran that his hypertension and carbuncles are related to service, there is no competent medical evidence of record which reasonably supports this assertion, and there is no indication that the Veteran has the requisite knowledge of medical principles which would permit the rendering of an opinion regarding matters involving medical diagnosis or etiological cause. Espiritu, supra. As noted above, lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation, but the diagnostic and nexus aspects as to whether hypertension or carbuncles may be related to service clearly requires the expertise of a medical professional, and are not susceptible of lay determination. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§3.159, 3.303(a); Jandreau, supra; Buchanan, supra. Without competent medical evidence linking current hypertension or carbuncles to service, entitlement to service connection is not warranted. The preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. III. New and Material Evidence Claims To reopen a claim following a final decision, the Veteran must submit new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Amendments to §3.156, changing the standard for finding new and material evidence, are applicable in this case, because the Veteran's claims to reopen were filed after August 29, 2001, the effective date of the amendment. 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 be neither 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. 38 C.F.R. § 3.156(a). For the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). By August 1977 rating decision, the RO denied service connection for cervical myofascitis based on a finding that this condition was not incurred in or aggravated by active military service. The RO also denied service connection for chronic lumbar strain, based on findings that such condition was not incurred in or aggravated by active military service, was not shown to be related to the one time vague annotation in service concerning low back pain after an automobile accident, and no evidence of continuity of low back problems since service. The evidence of record at the time of the August 1977 rating decision included STRs, service personnel records, a VA examination report, a Report of Accidental Injury, and three reports of unrelated VA hospitalizations. STRs show that in June 1972, the Veteran complained of low back pain for three weeks, when he was in an auto accident. He was referred to the orthopedic clinic for a consultation. It was noted that he had been hospitalized for a back injury, secondary to an auto accident three weeks prior in Michigan, and was told to report for follow-up. He was also referred to PT (physical therapy) for an "acute back injury three weeks ago". It was noted that he had received heat treatment in a VA hospital in Michigan and was told to report for continuation. Service personnel records show that the Veteran was on the Army boxing team. In February 1977 the Veteran completed a Report of Accidental Injury (VA Form VB8-4176) in which he reported that in the Summer of 1971, while in service, he was involved in a car accident and received a back injury. He claimed that his car was hit by another car that ran a stop sign. On VA examination in May 1977, the Veteran complained of headaches, eye trouble, and neck trouble. The diagnoses included chronic lumbar strain, cervical myofascitis, and post-operative keloid scar in occipital with no infection of scalp at present. Evidence submitted subsequent to the August 1977 RO rating decision includes private treatment records (from the Michigan Department of Corrections), statements from the Veteran and his friends, and several medical excerpts submitted by the Veteran. In a March 2005 statement, the Veteran reported he had pains all over his body, with numbness and burning sensations at times in his legs, arm, shoulders, and neck "for all the years [he had] been out of the Army". A March 2005 private treatment record showed that the Veteran complained of burning and numbness in the thighs and arms. The assessment included low back pain and L4-5 degenerative joint disease. In a May 2005 statement, the Veteran indicated that during service he had many fights and sparing sessions, and that getting hit in the head caused his neck to make a grinding noise when he turned it from side to side, and that getting hit in the head caused him to have a type of whiplash injury. With regard to lower back pains, he claimed that at times he was hit in the back with blows, and one time he was pushed over the top of the ropes of the boxing ring and he fell on his back. He also claimed that at times he had to move in awkward ways to get out of the way of a punch. He also submitted a June 2003 private x-ray showing mild muscle strain in the upper thoracic region, and no acute osseous changes, and a November 2004 x-ray which showed a mildly degenerated disk at L4-5. A May 2005 private treatment record showed that the Veteran complained of low back pain. In support of his claim, the Veteran submitted a medical excerpt regarding arthritis and osteoarthritis, and excerpts regarding athletic injuries, backache, injuries and diseases of the spinal column, and whiplash injury of the neck. He also submitted an excerpt from a lawyer's medical journal. An April 2006 private treatment record showed that the Veteran complained of low back pain since a 1971 motor vehicle accident and a boxing accident in 1971. He reported that he had lumbar back pain that radiated down to the hips and down to the knees. The assessment was that his back and hip pain was likely muscle versus osteoarthritis of the spine versus osteoarthritis of the hip. Treatment records from the Michigan Department of Corrections showed that in July 2008, the assessment included backache, onset in May 2008. In August 2008 a physical examination showed that the Veteran was seen for needing gym shoes and for memory lapses. It was noted that he had arthritis and used a cane. The Board notes that items of evidence received subsequent to the August 1977 rating decision are new, in that they have not been previously considered and are not cumulative. The Board also notes that the competent medical evidence shows that the Veteran has additional lumbar and cervical disability including a degenerated disk in the lumbar spine at L4-L5, and a muscle strain in the upper thoracic region. In the April 2006 statement of the case, the RO found that this additional lumbar and cervical disability raised a reasonable possibility of a chronic back condition related to service or due to an auto accident in service, and reopened the claims for service connection. The Board finds, however, that at the time of the August 1977 rating decision there was already evidence of a current lumbar disability and a current cervical disability. While this evidence of additional lumbar and cervical disability may relate to an unestablished fact necessary to substantiate the claim, the Board finds that this evidence does not raise a reasonable possibility of substantiating the claims, simply because while the Veteran may now have additional lumbar or cervical disability (that could potentially be related to service or to the automobile accident in service), there is no indication or suggestion that such additional lumbar or cervical disability may be related to service. Thus, after conducting an independent review of the evidence, the Board concludes that new and material evidence has not been submitted sufficient to reopen the claims for service connection for cervical myofascitis and for chronic lumbar strain with degenerative disc disease, and the claims are not reopened. ORDER Service connection for fracture of the nose is denied. Service connection for carbuncles is denied. Service connection for an eye disorder is denied. Service connection for hypertension is denied. New and material evidence has not been submitted to reopen a claim of entitlement to service connection for cervical myofascitis, and the claim is denied. New and material evidence has not been submitted to reopen a claim of entitlement to service connection for chronic lumbar strain with degenerative disc disease, and the claim is denied. REMAND The Veteran has filed a notice of disagreement with the March 2008 rating decision which granted service connection for hepatitis C and assigned a noncompensable evaluation. Pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), he must be provided with a SOC so that he has the opportunity to perfect this appeal. Only if the appeal is perfected should the issue be returned to the Board for appellate review. The Veteran essentially contends that he has had headaches, memory loss, and pain and burning sensations in the legs, shoulders, arms, and neck since service. He related these symptoms to the punches and blows he received as a boxer in the Army. Service records show that he was on the Army boxing team in service, and that in March 1972 he was struck in the nose and sustained a fracture of the nasal bones. In support of his claim he has submitted medical excerpts regarding athletic and boxing injuries, as well as his own statements and statements from friends. His friends claim that after the in-service boxing, the Veteran had a lot of memory loss. These statements also note that the Veteran started boxing before service, when he was 15 years old, but that his memory problems were noted after he got out of service. The Veteran has himself reported he has had headaches and other neurological symptoms (pain, burning, and numbness) since service. The Board acknowledges that the Veteran and his friends are competent to make such assertions (based on their observations). Barr v. Nicholson, 21 Vet. App. 303 (2007). However, neither the Veteran nor his friends (or the Board for that matter) are competent to assess whether those symptoms and observations are related to the Veteran's military service or his boxing therein. As noted above, VA must provide a medical examination and/or obtain an opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 appellant's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, supra. The Court in McLendon observed that the third prong, which requires an indication that the claimant's disability or symptoms 'may be' associated with the established event, is a low threshold, and, in this case, the Board finds that this threshold is satisfied by the Veteran's own assertions as to the chronicity of his disabilities since service. Thus, medical examination is deemed necessary in order to decide the claims. The Veteran and his representative have also requested that he be afforded a VA examination in this case. The Veteran has acknowledged that he is serving a life sentence and is unable to appear for a VA examination. He has also recently reported he had been in prison for about 24 years, unlawfully, and that if the Court acted favorably on his motion for reconsideration he could be out of prison and able to go to a VA hospital soon. A VA compensation and pension examination inquiry sheet from the RO showed that the Veteran was to be scheduled for a mental disorder examination and a neurological disorder examination. It was noted that he was incarcerated and needed an examination, and this was to be coordinated with the correctional facility. In July 2008 these examinations were cancelled as the Veteran had failed to report. It appears that he failed to report because he is incarcerated in a Michigan state prison with a life sentence. The Court has cautioned those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The Board notes that the applicable provision from M21-1MR, Part III, Subpart iv. Chapter 3.A.11.d., provides for a number of alternatives to be explored in trying to arrange for a VA examination for an incarcerated veteran. These include having the veteran transported to a VA facility, being examined at the prison facility by VA personnel, having an examination performed by prison medical officials at VA expense, or having the examination performed by fee-basis providers contracted by VA. Bolton v. Brown, supra. The provision further provides that if a problem cannot be resolved at the local level, the Compensation and Pension (C&P) Service Program Review Staff should be contacted for assistance. In this case, however, there is no indication that the RO undertook any efforts to provide alternate examination arrangements for the Veteran. On remand, the RO should undertake additional reasonable efforts to schedule such examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran and his representative should be provided a SOC on the issue of entitlement to an initial compensable rating for hepatitis C. If, and only if, a substantive appeal is filed, this issue should be returned to the Board for appellate review. 2. Take all reasonable measures (and document such measures) to schedule the Veteran for an appropriate VA examination to determine the nature and probable etiology of any chronic neurological disabilities manifested by headaches, nightmares, memory loss, or pain and burning sensation in the legs, shoulders, arms, or neck, and whether any such disabilities might be due to his boxing in service. The claims folders must be made available to the examiner in conjunction with this examination for review of pertinent documents therein. a. The examiner should be asked to opine as to whether it is at least as likely as not (i.e., to a 50-50 or greater degree of probability) that any currently diagnosed disability manifested by headaches, nightmares, memory loss, or pain and burning sensation in the legs, shoulders, arms, or neck, is causally related to the Veteran's military service, to included his boxing on the Army team, or whether such a causation or relationship is unlikely (i.e., less than a 50 percent probability). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. b. If the examiner is unable to provide the requested opinion without resorting to speculation, it should be so stated and explained with supporting rationale. 3. Thereafter, the issues on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. The Veteran 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 2002). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs