Citation Nr: 1329697	
Decision Date: 09/17/13    Archive Date: 09/25/13

DOCKET NO.  11-05 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to service connection for chronic neck pain.

2.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for a back strain.

3.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for a chronic right knee condition.

4.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for a chronic left knee condition.

5.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for sinus headaches.

6.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for migraine headaches.

7.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for chronic stomach pain.

8.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for a chronic right ear condition.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran served on active duty from August 1989 to May 1996, including in the Southwest Asia theater of operations during the Persian Gulf War.

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In a Decision Review Officer (DRO) decision since issued in February 2011, the RO granted the Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD).  The DRO assigned an initial 30 percent rating for this disability retroactively effective from February 9, 2007.  The Veteran did not, in response, separately appeal either the rating or effective date assigned for this now service-connected disability.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).  So that claim is no longer at issue.

As concerning his remaining claims, the Veteran testified at a hearing at the RO in July 2011 in support of them before the undersigned Veterans Law Judge of the Board (Travel Board hearing).

VA's electronic claims processing system ("Virtual VA") includes additional documents for consideration in support of the claims being reopened and remanded, which the RO did not yet consider, but not in support of the claim being denied.

The claims of entitlement to service connection for chronic neck pain and, since being reopened, of entitlement to service connection for a back strain, chronic right and left knee conditions, sinus headaches, migraine headaches, and chronic stomach pain, are being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development, rather than being immediately decided.  Whereas the Board is going ahead and finally deciding, unfortunately denying, the sole remaining claim for a right ear condition.


FINDINGS OF FACT

1.  In an earlier August 1998 rating decision, the RO considered and denied the Veteran's claims of entitlement to service connection for a back strain, a bilateral (right and left) knee condition, sinus headaches, migraine headaches, stomach pain, and a right ear condition.


2.  He alleges to have not received notice of that prior decision denying these claims, which is the reason he admittedly did not appeal that earlier decision, owing to him changing residences several times (moving from place to place), but there is a presumption of administrative regularity in VA mailings and notices that has not been rebutted by the required clear evidence, both that he did not receive notification of that earlier decision and that he had provided VA a viable address at which to contact him, and he is obligated to keep VA apprised of his whereabouts during the processing of his claims by providing his current mailing address.

3.  In any event, some of the additional evidence received since that August 1998 decision is neither cumulative nor redundant of the evidence previously of record and considered in that earlier decision and, when considered along with the existing evidence of record, raises a reasonable possibility of substantiating the claims of entitlement to service connection for a back strain, right and left knee conditions, sinus headaches, migraine headaches, and stomach pain.

4.  The additional evidence received since the August 1998 decision, however, although neither cumulative nor redundant of the evidence previously of record, still, when considered along with the existing evidence, does not raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right ear condition.


CONCLUSIONS OF LAW

1.  The August 1998 rating decision denying the Veteran's claims of entitlement to service connection for a back strain, a bilateral (right and left) knee condition, sinus headaches, migraine headaches, stomach pain and a right ear condition is a final and binding determination.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013).


2.  But there is new and material evidence since that decision to reopen the claims of entitlement to service connection for a back strain, right and left knee conditions, sinus headaches, migraine headaches, and stomach pain.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3.  Conversely, there is not new and material evidence since that decision to reopen the claim of entitlement to service connection for a right ear condition.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The United States Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

A.  Notice

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  

When a claim arises in the context of a Veteran trying to establish his/her entitlement to service connection for a disability, the VCAA notice must apprise him/her of all five elements of the claim, which are:  (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; but also regarding the "downstream" (4) degree of disability; and (5) effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

In the context of a claim that has been previously considered and denied, the notice must inform the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought.  Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).  In informing the claimant of what evidence would be considered new and material to reopen the claim, VA must examine the basis for the denial in the prior decision and identify the evidence that would substantiate the element(s) of the claim found lacking in that earlier denial.  Id.  See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial).

Ideally, the RO should provide the claimant this VCAA notice prior to initially adjudicating the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason the RO did not, or provided the notice but it was inadequate or incomplete, the RO can effectively "cure" this error by providing any necessary VCAA notice and then readjudicating the claim in a Statement of the Case (SOC) or Supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).


The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, consider first that the Board is granting the petitions to reopen all of the claims at issue, except as concerning the right ear condition, so the Board need not discuss whether there has been compliance with Kent, at least as concerning these claims that are being reopened.  This is because, even if the Veteran did not receive the required Kent notice concerning these claims, this ultimately would be inconsequential and, therefore, amount to no more than nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.

That notwithstanding, the RO provided him VCAA notice concerning his claims by way of letters dated in February 2007, April 2007, May 2007 and August 2007.  All of those letters were sent in the preferred sequence, that is, were provided to him before, rather than after, initially adjudicating his claims in December 2007.

The letters also satisfy the content requirements.  They informed the Veteran of the evidence needed to substantiate his claims and identified the type of evidence that would best do so.  They included all necessary information on the "downstream" elements of disability ratings and effective dates in the event service connection is granted.  They notified him of the bases of the last denials of his claims.  They identified the evidence the RO had requested in support of his claims and apprised him of his and VA's respective responsibilities in obtaining all necessary additional supporting evidence.  They indicated the RO would make reasonable efforts to assist him in obtaining all other outstanding evidence needing to be obtained, provided he identified the source(s), but that it ultimately was his responsibility to ensure VA's receipt of this and any other pertinent evidence.

He received further notice concerning his claims during his July 2011 Travel Board hearing.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the Veterans Law Judge (VLJ) chairing a hearing must satisfy two duties to comply with this VA regulation, consisting of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position.  Here, the presiding VLJ did both.  After the Veteran had testified that he had not received notice of a prior decision denying his claims, and thus did not need to submit new and material evidence to reopen his claims, the presiding VLJ questioned him regarding the circumstances surrounding his alleged nonreceipt of the prior notification.  The VLJ explained when such a notification letter is considered presumed to have been received and when the RO must resend it.  The VLJ also explained that, in either case, evidence was needed to show that the claimed disabilities had incepted during the Veteran's military service or were otherwise related or attributable to his service, and discussed outstanding VA treatment records and a medical opinion that might tend to show this necessary relationship or correlation.  So there was compliance with Bryant and § 3.103(c)(2).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of these claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).  Neither he nor his representative asserts that VA failed to comply with VCAA's notice provisions or the requirements of Bryant.

B.  Assistance

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c).

In the context of a claim to reopen, VA's duty to assist is limited to:  (1) making reasonable efforts to obtain non-Federal department or agency records; (2) obtaining records in the custody of a Federal department or agency; and 
(3) obtaining VA and military records.  38 C.F.R. § 3.159(c)(1), (2) and (3).  There is no additional obligation to provide an examination or obtain a medical opinion unless and until there is new and material evidence allowing for the reopening of the claim. 38 C.F.R. § 3.159(c)(4)(iii).

The RO in this case satisfied its duty to assist the Veteran in the development of his petition to reopen his previously denied claim of entitlement to service connection for a right ear condition.  The RO tried to obtain and associate with the claims file all documents he had identified as being potentially pertinent to this claim, including service treatment and personnel records and post-service VA and private treatment records.  Neither he nor his representative asserts there are any other outstanding records needing to be obtained in support of this claim.  

Given the development that has occurred and, again, the Board's decision to reopen all of his remaining claims, it is difficult to discern what additional guidance VA could have provided him regarding the evidence needed to substantiate his claims.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).

In deciding these claims, more specifically, in determining whether they should be reopened, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence he has submitted or that has been obtained 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 and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).

II.  Analysis

The Veteran is alleging entitlement to service connection for a back strain, bilateral (right and left) knee disability, sinus and migraine headaches, stomach pain and a right ear condition on the premise they are either directly related to his service (meaning initially manifested during his service in the way of relevant symptoms) or developed secondary to his service-connected PTSD.

More specifically, he contends that his back and knee problems are due to his duties as a paratrooper and the rigorous impact he experienced to his joints when repeatedly jumping out of military aircraft; that his stomach pain is due to a nerve agent he took during service; that his headaches and sinus symptoms are due both to the stress associated with his PTSD and the smoke inhalation he experienced during the Persian Gulf War when he was in close proximity to burning pits and in the direct path of demolition; and that his right ear condition is due to combustion and shooting weapons in service or a camel fly he had to have extracted from this ear.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).


Establishing entitlement to direct service connection generally requires:  (1) competent and credible evidence confirming the Veteran has the alleged disability or, at the very least, showing he has at some point since the filing of his claim for the disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or correlation between the currently claimed disability and the disease or injury incurred or aggravated during service (the so-called "nexus" requirement).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).

Certain conditions are considered chronic (i.e., permanent), per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Additionally, under 38 C.F.R. § 3.303(b), claims that are for these chronic diseases identified in 38 C.F.R. § 3.309(a) also benefit from a somewhat more relaxed evidentiary standard.  See Walker, supra (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id.  (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. 

Service connection is permissible, as well, for disability that his proximately due to, the result of, or aggravated by a service-connected condition.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In a prior August 1998 rating decision, the RO considered and denied the Veteran's claims of entitlement to service connection for a back strain, chronic right and left knee conditions, sinus headaches, migraine headaches, chronic stomach pain and a right ear condition.  In denying these claims, the RO considered his service treatment records (STRs), which showed pre-service intestinal surgery but also in-service back, knee, headache and abdominal/stomach findings and in-service removal of a bug from the left, not right, ear.  The only other evidence of record at the time of that earlier decision was the Veteran's application for VA compensation and pension benefits.

In denying the claims in that earlier decision, the RO determined that, although there was evidence of in-service treatment for the claimed conditions (except with regards to the right ear), there was no in-service or post-service evidence of permanent residuals or of chronic disabilities subject to service connection.  Based on these findings, the RO concluded these conditions were not related to the Veteran's service, so not service-connected disabilities.

The RO notified him of its August 1998 rating decision denying these claims and of his procedural and appellate rights in the event he elected to appeal the decision to the Board, but he did not.  In addition, the RO did not receive new and material evidence within one year of that decision.  See 38 C.F.R. § 3.156(b) (2012).  Consequently, that August 1998 rating decision denying his claims of entitlement to service connection for a back strain, a bilateral (right and left) knee condition, sinus headaches, migraine headaches, stomach pain and a right ear condition is a final and binding determination.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013).

The Veteran alleges he did not receive notice of that earlier denial of his claims because, at the time, he was moving around a lot from place to place.  But he also readily admits that he did not continually notify VA of his new addresses.  In Wood v. Derwinski, 1 Vet. App. 190, 192 (1991), the Court held that, while VA has a duty to assist a Veteran in the development of a claim, this duty is not limitless or a one-way street.  In the normal course of events, it is his burden to keep VA apprised of his whereabouts.  If he does not, there is no burden on VA to "turn up heaven and earth" to find him).  Consider also that the U. S. Postal Service did not return the notice as undeliverable.

There is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties, including in mailing notice.  Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)).  To rebut this presumption, the appellant, in addition to asserting nonreceipt, bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.  See Ashley, 2 Vet. App. at 309.  Absent the production of such clear evidence, delivery is proven.  If, on the other hand, clear evidence is presented to rebut the presumption of regularity, the burden then shifts to VA to establish proper mailing of notice in accordance with the applicable case law.  See Baxter v. Principi, 17 Vet. App. 407, 410 (2004).

Whether clear evidence exists to rebut the presumption of administrative regularity is a question of law.  See Crain v. Principi, 17 Vet. App. 182, 188 (2003).  An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process.  Jones v. West, 12 Vet. App. 98, 102 (1998).  Instead, the clear evidence requirement mandates not only a declaration by the appellant of nonreceipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery, as not all address errors rise to the level of clear evidence to rebut the presumption of administrative regularity in the mailing of notice.  See Santoro v. Principi, 274 F.3d 1366, 1370 (Fed. Cir. 2001) (in holding the use of wrong zip code inconsequential to delivery, the Court stated that "an address containing errors inconsequential to delivery is still proper"); Jones v. West, 12 Vet. App. 98 (1998) (holding the failure to include room number on street address to which VA sent documents and notice to the claimant that his disability compensation would be suspended, was not alone sufficient to overcome the presumption of regularity where record showed no evidence that the notice was returned as undeliverable); Clark v. Nicholson, 21 Vet. App. 130, 133 (2007) (holding that a Veteran did not present clear evidence to rebut presumption of regularity that applies to VA mailings when he asserted that he did not receive notice of an unfavorable RO decision due to VA's failure to include a "NE" postdirectional designator in his street address, as such omission was inconsequential to delivery). 

This case involves an assertion of nonreceipt, standing alone.  According to the copy of the notice letter, VA properly sent the notice to the address that was then of record and it was not returned as undeliverable.  The Veteran's assertion alone is insufficient to rebut the presumption of regularity in VA's mailing process.  New and material evidence is thus necessary to reopen these previously denied claims.

In February 2007 the Veteran filed his petition to reopen these claims.  A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim.  Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record.  38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996).  

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with the 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) (2013).

When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  The phrase "raise[s] a reasonable possibility of substantiating the claim" enables rather than precludes reopening, consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence on each unproven element of a claim.  Id. at 120.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.

The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final and binding disallowance of the claim on any basis, so irrespective of whether a prior denial on the merits or, instead, a prior petition to reopen the claim.  Evans, 9 Vet. App. at 273.


The evidence submitted to reopen a claim is presumed credible for the limited purpose of making this threshold preliminary determination of whether it is new and material, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). 

Here, the additional evidence that has been associated with the claims file since the RO's August 1998 rating decision includes service treatment and personnel records, VA and private treatment records, articles on the Gulf War, a report of a VA PTSD examination, a letter from a private nurse practitioner, the Veteran's and his spouse's written statements, and the Veteran's hearing testimony.

With regard to all claims and with the exception of the STRs, this evidence is new.  It is neither cumulative nor redundant of the evidence previously of record.  

But as specifically concerning the right ear claim, this additional evidence is not also material.  By itself or when considered with the evidence previously of record, it does not relate to an unestablished fact necessary to substantiate this claim.  In fact, although the Veteran's written and oral statements reflect his belief that he has a right ear condition secondary to in-service noise exposure and the removal of a camel fly from his right ear, none of the other evidence mentions his right ear.  There is no evidence of a right ear condition either in service or since discharge.  The absence of this type of evidence formed the basis of the previous denial of this claim.  As such critical evidence remains absent from the claims file, even if not required to address each and every aspect of this claim, the Board may not reopen this claim.

With regard to the remaining claims, the new evidence is additionally material, so sufficient reason to reopen these remaining claims.  By itself or when considered with the evidence previously of record, it relates to an unestablished fact necessary to substantiate these others claims.  The medical evidence of record now includes not only back, knee, headache and abdominal findings, but an opinion linking the back and knee problems to the poor equipment the Veteran utilized in service when parachuting.  The absence of evidence of the claimed disabilities since discharge formed the basis of the RO's previous denial of the claims for a back strain, chronic right and left knee conditions, sinus headaches, migraine headaches, and chronic stomach pain.  Given that this necessary evidence is no longer absent from the claims file, the Board must reopen these claims.  The Board cannot, however, immediately readjudicate these claims on their underlying merits because, as explained below, VA has not adequately assisted the Veteran in fully developing these claims.  See Hickson v. Shinseki, 23 Vet. App. 394 (2010) (Generally, where the Board reopens a claim but the RO did not, the case must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from the Board's immediate readjudication of the claim).


ORDER

Because there is the required new and material evidence, the claims of entitlement to service connection for a back strain, chronic right and left knee conditions, sinus and migraine headaches, and chronic stomach pain are reopened subject to the further development of these claims in the REMAND below.

However, the petition to reopen the claim of entitlement to service connection for a chronic right ear condition is denied.


REMAND

The Board sincerely regrets the additional delay that invariably will result from this remand, but the claims for service connection for chronic neck pain, a back strain, chronic right and left knee conditions, sinus headaches, migraine headaches, and chronic stomach pain require additional development.


First, during the course of this appeal, the RO associated additional, pertinent VA treatment records with Virtual VA, which it did not consider in the first instance in support of these claims.  As the Veteran has not waived his right to have the RO do so, such action must be taken on remand.  38 C.F.R. § 20.1304.  see also 38 C.F.R. §§ 19.31, 19.37

Second, the records noted above originate from a VA facility in New Mexico.  During his hearing, the Veteran identified pertinent outstanding VA treatment records elsewhere, namely, at another VA facility in Jacksonville, Florida, so these other VA records also need to be obtained and considered.  38 C.F.R. § 3.159(c)(2).  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA-generated records are in constructive, if not actual, possession of the agency and therefore, if potentially relevant, must be obtained and considered).

Third, in a February 2007 letter, a private nurse practitioner related the Veteran's neck, back and knee pain to the sub-optimal equipment he used during service while a paratrooper.  His DD Form 214 confirms he parachuted his during service.  As such, he should undergo a VA compensation examination so the examiner can address whether, as the nurse practitioner finds, a relationship exists between the claimed conditions and the Veteran's service, especially that type of activity.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010)

Moreover, as his service included time in the Persian Gulf War and since, during that time, he received treatment for abdominal/stomach complaints and headaches, the examiner should also discuss whether there are relationships between those complaints in service and these now claimed conditions.


Fourth, the RO has yet to consider whether the Veteran's headaches developed secondary to his service-connected PTSD.  As he has raised a claim for sinus and migraine headaches on a secondary basis since initially filing these claims, the RO should consider this additional basis of entitlement on remand since VA is required to consider all potential bases of entitlement.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).

Accordingly, these claims are REMANDED for the following additional development and consideration:

1.  Obtain and associate with the claims file all pertinent treatment records from the VA Medical Center in Jacksonville, Florida. 

Since these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2).  So make as many attempts to obtain these additional records as this VA regulation requires.  Also appropriately notify the Veteran if unable to obtain these records.  38 C.F.R. § 3.159(e)(1).

2.  Upon receipt of all additional records, schedule an appropriate VA compensation examination for medical nexus opinions concerning whether the Veteran has neck, back, right and left knee disorders, headaches and an abdominal/stomach disorder because of his military service, either because these disorders incepted during his service, including especially in response to his service in the Southwest Asia theater of operations during the Persian Gulf War; or alternatively, if involving arthritis, initially manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year; or are otherwise related or attributable to his service, including secondarily related if caused or aggravated by his service-connected PTSD.

a.  Record in detail the Veteran's pre-service, service and post-service history of neck, back, knee, headache and abdominal complaints, his duties as a paratrooper, and any exposure to toxins during the Persian Gulf War;  

b.  Diagnose any neck, back, knee disorder, headaches and/or abdominal/stomach disorder shown to exist;

c.  Opine whether each diagnosed disorder is very likely, as likely as not, or unlikely related or attributable to his service, including if it is the type of chronic disability from service in the Southwest Asia theater of operations during the Persian Gulf War;

In making these necessary determinations, discuss the significance of the various articles the Veteran has submitted regarding exposure to toxins during the Persian Gulf War and his duties as a paratrooper.


d.  With regards to any abdominal disorder shown to exist, also opine whether it preexisted his service but nonetheless increased in severity during his service, meaning permanently worsened beyond its natural progression; 

e.  With regards to any headache disorder, including sinus-related or migraines, opine whether it is proximately due to, the result of, or aggravated by the service-connected PTSD.

f.  Identify all objective indications of a qualifying chronic disability, which are not attributable to a known diagnosed illness, but associated with the Veteran's service in the Persian Gulf War.  

g.  Provide rationale with specific references to the record for all opinions expressed.

3.  Review the examination report to ensure it includes all requested information and, if not, return it to the examiner for correction.  38 C.F.R. § 4.2.

4.  Then readjudicate these claims in light of this and all other additional evidence of record, including that which is obtained on remand and which was associated with Virtual VA during the course of this appeal.  Consider the Veteran's sinus and migraine headaches claims on a secondary basis, as related to his service-connected PTSD.  For all claims that continue to be denied, send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.  

The Veteran has the right to submit additional evidence and argument concerning the claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs