Citation Nr: 1319861 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-15 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for headaches. 2. Whether new and material evidence has been received with respect to a claim of service connection for hearing loss due to acoustic trauma. 3. Entitlement to an effective date earlier than March 22, 2007 for the award of service connection for thoracolumbar spondylosis and osteoarthritis. 4. Entitlement to an effective date earlier than June 8, 2007 for the award of service connection for cervical osteoarthritis. 5. Entitlement to an effective date earlier than June 8, 2007 for the award of service connection for right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes. 6. Whether there was clear and unmistakable error (CUE) in the May 2011 rating decision that granted an effective date of March 22, 2007 for the grant of service connection for cervical osteoarthritis and a right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes. REPRESENTATION Appellant represented by: Robert C. Brown, Jr. WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2008 and May 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Notices of disagreement were received in April 2008 and May 2011; statements of the case were issued in April 2009 and September 2012; and substantive appeals were received in April 2009 and October 2012. The Veteran presented testimony at a Board hearing in March 2013. A transcript of the hearing is associated with the claims folder. The issue of whether or there was CUE in the RO's June 1998 rating decision denying service connection for a back disability and frostbite of the feet was raised by the Veteran at his March 2013 Board hearing. The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Additionally, in a September 2012 rating decision, the RO found CUE in its May 2011 rating decision. Specifically, it found CUE in the effective date of March 22, 2007 for service connection for cervical osteoarthritis and right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes. The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In September 2002, the RO denied the Veteran's petition to reopen a claim for service connection for headaches. The Veteran failed to file a timely notice of disagreement, and no new and material evidence was received within a year of the rating decision's issuance. 2. Evidence received since the September 2002 rating decision is neither cumulative nor redundant of the evidence of record at the time of the September 2002 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. In September 2002, the RO denied the Veteran's claim for service connection for hearing loss. The Veteran failed to file a timely notice of disagreement, and no new and material evidence was received within a year of the rating decision's issuance. 4. Evidence received since the September 2002 decision cumulative and redundant of the evidence of record at the time of the September 2002 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection. 5. A claim of service connection for a back disability was denied in a June 1998 rating decision; the Veteran did not file a notice of disagreement to this decision, and new and material evidence was not received within one year of that determination. The RO denied applications to reopen the claim by way of September 2002 and March 2004 rating decisions. The Veteran did not file a notice of disagreement to these decisions, and new and material evidence was not received within one year of those determinations. 6. A formal claim for a low back disability was received March 22, 2007. Service connection for thoracolumbar spondylosis and osteoarthritis was granted by way of a May 2011 rating decision. 7. On June 8, 2007, the Veteran filed a claim to reopen his claim for service connection for a back disability. Service connection for cervical osteoarthritis was granted by way of a May 2011 rating decision. 8. A claim of service connection for frostbite of the hands and feet was denied in a June 1998 rating decision; the Veteran did not file a notice of disagreement to this decision, and new and material evidence was not received within one year of that determination. The RO denied an application to reopen the claim by way of a September 2002 rating decision. The Veteran did not file a notice of disagreement to the decision, and new and material evidence was not received within one year of the determination. 9. On June 8, 2007, the Veteran filed a claim to reopen his claim for service connection for frostbite (right foot). Service connection for a right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes was granted by way of a May 2011 rating decision. CONCLUSIONS OF LAW 1. The September 2002 RO rating decision, which denied the Veteran's application to reopen a service connection claim for headaches is final. 38 U.S.C.A. § 7105 (West 2002). 2. Evidence received since the September 2002 RO rating decision is new and material; accordingly, the claim for service connection for headaches is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The September 2002 RO rating decision, which denied the Veteran's claim for service connection for hearing loss is final. 38 U.S.C.A. § 7105 (West 2002). 4. Evidence received since the September 2002 RO rating decision is not new and material; accordingly, the claim for service connection for hearing loss is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The criteria for assignment of an effective date prior to March 22, 2007, for the grant of service connection for thoracolumbar spondylosis and osteoarthritis, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). 6. The criteria for assignment of an effective date prior to June 8, 2007, for the grant of service connection for cervical osteoarthritis, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). 7. The criteria for assignment of an effective date prior to June 8, 2007, for the grant of service connection for a right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes, have not been met. 38 U.S.C.A. § 5110 (2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's earlier effective date claims arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. In claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. Here, the Veteran was sent letters in April 2007 and June 2007 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a March 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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, 16 Vet. App. 183 (2002). New and Material Evidence Despite any determination made by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") are as follows: 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) (2012). Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Headaches The Veteran's claim of service connection for headaches was denied by way of a June 1998 RO rating decision. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(b) (2012) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The Veteran attempted to reopen the claim, but the RO issued a September 2002 rating decision in which it determined that no new and material evidence had been received. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. Consequently, the September 2002 rating decision also became final. It is the most recent final denial. The evidence on record at the time of the September 2002 denial includes service treatment records. A July 1970 Report of Medical History completed at separation from service reflects the Veteran's complaints of occasional severe headaches. Additionally, an undated medical examination cover sheet reflects that the reason for the request was headaches. The Veteran's July 1970 separation examination was normal. The evidence also included a May 1998 VA examination in which the examiner diagnosed the Veteran with migraine headaches and tension headaches. The RO denied the claim by finding that the Veteran's headaches were not a chronic disability. Evidence received since the September 2002 rating decision includes the Veteran's March 2013 Board hearing testimony in which he stated that he has suffered from chronic headaches since service. Additionally, the Veteran has submitted an April 2008 correspondence from a private physician (Dr. B.L.P.). Dr. B.L.P. stated that the Veteran hurt his back during service and developed headaches. It appears that Dr. B.L.P. is indicating that the Veteran's headaches could be related to his service connected back disabilities. The Board notes that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and a final denial on one theory is a final denial on all theories. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Velez v. Shinseki, 23 Vet. App. 199, 206 (2009). In this case, the Board finds that the April 2008 correspondence and the Veteran's testimony constitute new and material evidence. As noted above, the RO previously denied the claim because it found that the Veteran's headaches were not a chronic disability. His testimony (which is credible for new and material evidence purposes) addresses the basis for the prior denial. Additionally, the April 2008 correspondence is evidence in support of a new theory of entitlement. As new and material evidence has been received to reopen the claim, the claim for entitlement to service connection is reopened. Hearing loss The Veteran's claim of service connection for hearing loss was denied by way of a September 2002 RO rating decision. He failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(b) (2012). The evidence on record at the time of the September 2002 denial includes service treatment records that reflect no complaints of hearing loss, a normal July 1970 separation examination, and a July 1970 Report of Medical History in which the Veteran denied (by checked box) that he had hearing loss. The evidence also included a July 2002 VA examination report that reflected normal hearing. The RO denied the claim because the Veteran did not have a current hearing loss disability as defined by 38 C.F.R. § 3.385. (Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent). Evidence received since the September 2002 rating decision includes the Veteran's March 2013 Board hearing testimony in which he stated that his hearing loss is becoming more severe. Additionally, VA outpatient treatment reports have been added to the record. The Board finds that this evidence does not constitute new and material evidence. As noted above, the RO previously denied the claim because it found that the Veteran did not have a hearing loss disability as defined by 38 C.F.R. § 3.385. The new evidence has not addressed the basis for the prior denial in that there still is no medical evidence of hearing loss as defined by 38 C.F.R. § 3.385. Consequently, the new evidence does not constitute an unestablished fact necessary to substantiate the claim. As new and material evidence has not been received to reopen the claim, the claim for entitlement to service connection is not reopened. Earlier Effective Dates The Veteran contends that he is entitled to effective dates prior March 22, 2007 and June 8, 2007 for thoracolumbar spondylosis and osteoarthritis; cervical osteoarthritis; and a right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes. Specifically, he asserts that the effective dates should be in January 1998, when he filed his initial claims for service connection. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). The Veteran filed original claims for service connection for strained back muscles and frostbite of both feet that were date-stamped received in January 1998. The claims were denied by the RO in a June 1998 rating decision. He was informed of his appellate rights, but he did not file a notice of disagreement. Further, no other evidence was submitted during the one year period following this decision so the provisions of 38 C.F.R. § 3.156(b) with respect to the submission of new and material evidence are not applicable. Accordingly, the RO's June 1998 rating decision is final. 38 U.S.C.A. § 7105. Subsequently, the Veteran made multiple attempts to reopen the claims. The RO denied all three issues again in a September 2002 rating decision, and it denied the Veteran's application to reopen a service connection claim for a back disability by way of a March 2004 rating decision. Then Veteran failed to file notices of disagreement, and no other evidence was submitted during the one year period following these decisions. Consequently, the September 2002 and March 2004 rating decisions also became final. Thus, when the Veteran filed his claim of service connection for a low back disability on March 22, 2007, and his claims for a back disability and frostbite (right foot) on June 8, 2007, they were claims to reopen. Cervical spine and right foot There is no evidence that indicates any intent on the part of the Veteran to apply for compensation following the September 2002 and March 2004 rating decisions until June 8, 2007. Significantly, the next submission by the Veteran in the claims file after the September 2002 and March 2004 rating decisions are the June 8, 2007 claims to reopen. The Board notes that the VA treatment records show continued treatment for all three disabilities. However, these records showed no indication of any intent on the part of the Veteran to file claims to reopen. The assigned effective date of June 8, 2007, is the date of receipt of the Veteran's claims to reopen. Because the September 2002 and March 2004 rating decisions are final, the claims upon which those decisions were based cannot serve as the basis for assignment of an effective date for a subsequent award of service connection. The Veteran's claims to reopen were date-stamped as received by VA on June 8, 2007, which is the date that was assigned by the RO as the effective date for the grant of service connection for cervical osteoarthritis, and a right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes. Absent an allegation and finding of CUE in the RO decisions (which is an issue not before the Board at this time) the desired earlier effective cannot be assigned. As the provisions of 38 C.F.R. § 3.157 only apply once a claim of service connection is allowed, any treatment records prior to March 22, 2007, could not establish an informal claim here. In sum, the earliest date of receipt of a reopened claim for service connection for cervical osteoarthritis, and a right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes is June 8, 2007, the date the RO received the Veteran's claim to reopen his claims. While the Board is sympathetic to the Veteran's beliefs that an earlier effective date is warranted, under the circumstances, the Board is precluded by statute and regulation from assigning an effective date prior to June 8, 2007 for the granting of service connection for cervical osteoarthritis, and a right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes. Accordingly, the preponderance of the evidence is against the claims for effective dates earlier than June 8, 2007. As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). The Board notes that the effective date for the Veteran's cervical disability was initially March 22, 2007, but this was found to be CUE and was re-set to June 8, 2007. The Veteran has raised a challenge to the finding of CUE, and this is addressed in the remand portion of this decision. Thoracolumbar spine As noted above, the Veteran's claim for service connection for a back disability was denied in June 1998. Attempts to reopen the claim were denied in September 2002 and March 2004. All three ratings decisions are final. Consequently, an effective date prior to March 2004 is not possible. The Veteran did not expressly indicate an intent to apply for compensation following the September 2002 and March 2004 rating decisions until March 22, 2007. Consequently, the RO assigned an effective date of March 22, 2007. The Board notes that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for completion. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157. In this case, the Board finds no documents in the claims file pre-dating March 22, 2007, that can be construed as expressing an intent to seek service connection for a low back disability. Moreover, as the provisions of 38 C.F.R. § 3.157 only apply once a claim of service connection is allowed, any treatment records prior to March 22, 2007, could not establish an informal claim here. There is no evidence that indicates any intent on the part of the Veteran to apply for compensation following the September 2002 and March 2004 rating decisions until March 22, 2007. Accordingly, the preponderance of the evidence is against the claim for an earlier effective date for the award of service connection for a low back disability. ORDER New and material evidence has been received to reopen the Veteran's claim for service connection for headaches. Consequently, the claim is reopened. New and material evidence has not been received to reopen the Veteran's claim for service connection for hearing loss. Consequently, the claim is not reopened. Entitlement to an effective date earlier than June 8, 2007 for cervical osteoarthritis, and a right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes is denied. Entitlement to an effective date earlier than March 22, 2007, for thoracolumbar spondylosis and osteoarthritis is denied. REMAND Headaches The Board finds that a VA examination is warranted in order to determine the nature, extent, and etiology of the Veteran's headaches. The Board recognizes that the Veteran underwent a VA examination for headaches in May 2011. However, the examiner did not appear to reconcile his conclusions with the Veteran's Report of Medical History, in which he reported occasional, severe headaches. Moreover, the examiner did not address the April 2008 correspondence from Dr. B.L.P. or render an opinion regarding the possibility that the Veteran's headaches could be service connected on a secondary basis. CUE Additionally, in a September 2012 rating decision, the RO found CUE in its May 2011 rating decision. Specifically, it found CUE in the effective date of March 22, 2007 for service connection for cervical osteoarthritis and right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes. The Veteran filed a timely notice of disagreement with regards to these issues in the September 2012 rating decision. The RO has yet to issue a statement of the case in response to the Veteran's disagreement. Where a claimant files a notice of disagreement and the RO has not issued a statement of the case, the issue must be remanded to the RO for a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, the issue must be remanded. Accordingly, the case is REMANDED for the following action: 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The Veteran should be afforded a VA neurologic examination for the purpose of determining the nature, etiology and severity of the Veteran's headaches. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any disability began during or is causally related to service, to include whether any disability was caused, or aggravated by, his service connected degenerative cervical arthritis and/or thoracolumbar spondylosis and osteoarthritis. The examiner must provide reasons for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. 3. The RO should take appropriate action, including issuance of a statement of the case, on the issue of whether the May 2011 rating decision contained CUE regarding the effective dates assigned for the grant of service connection for cervical osteoarthritis and right foot cold injury with onychomycosis big toe nail and nails of the 4th and 5th toes. The Veteran and his representative should be clearly advised of the need to file a timely substantive appeal if the Veteran wishes to complete an appeal from the determination. 4. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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). (CONTINUED ON NEXT PAGE) 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. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs