Citation Nr: 1334950 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-30 029A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating higher than 40 percent for spina bifida occulta, S1, to include arthritis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic residuals of a head injury. 3. Entitlement to service connection for chronic residuals of head injury. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral leg disability. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a right knee disability. 7. What evaluation is warranted for dysthymic disorder from January 23, 2009? REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty for training from March to July 1978 and on active duty from January to December 1979. These matters initially came before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2013, the Board remanded the claims to the RO for scheduling of a videoconference hearing. The Veteran, however, withdrew this request in February 2013, and the case was therefore returned to the Board. In an August 2012 letter, the Veteran's then representative raised the issue of clear and unmistakable error. The attorney wrote, "On August 2008, the VA denied the Veteran's claim for (traumatic brain injury)," and based the motion alleging clear and unmistakable error on the discovery of VA medical records pertaining to the Veteran that had been in the home of a VA employee. The Board notes, however, that there is no rating decision of that date and there has been no denial of a claim for entitlement to service connection for traumatic brain injury. Rather, in an August 2008 statement of the case, the RO continued to decline to reopen the claim for entitlement to service connection for chronic residuals of a head injury. In response to the August 2012 letter, the RO addressed the issue of clear and unmistakable error in its prior denials of entitlement to service connection for residuals of a chronic head injury. A request or motion alleging clear and unmistakable error must, however, be decided "in the same manner as any other claim." 38 U.S.C.A. § 5109A (West 2002). See also Hillyard v. Shinseki, 24 Vet. App. 343, 355 (an assertion of clear and unmistakable error is a motion or a request and not a claim). As the agency of original jurisdiction did not decide the motion alleging clear and unmistakable error in a rating decision, this matter must be referred to the agency f original jurisdiction for appropriate action. In November 2012, the RO granted entitlement to service connection for tension headaches based on a medical opinion indicating that the Veteran's current headaches were related to his headaches in service but not his in-service head injury as discussed below. In that same decision, the RO granted entitlement to service connection for a dysthymic disorder secondary to a service connected thoracolumbar spine disability. The issue whether there are chronic residuals of a head injury other than headaches or a dysthymic disorder is nevertheless still before the Board. In November 2012, the RO also granted entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, and the Board therefore need not consider whether this issue has been implicitly raised by the increased rating claim decided below. The issue of entitlement to service connection for right knee disability, and the question what evaluation is warranted for a dysthymic disorder from January 23, 2009 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Symptoms of the Veteran's thoracolumbar spine disability have not included ankylosis or incapacitating episodes. 2. In a June 2005 rating decision, the RO denied the Veteran's application to reopen his claim for entitlement to service connection for chronic residuals of a head injury. The Veteran filed a timely notice of disagreement and the RO issued an April 2006 statement of the case, but the Veteran did not file a timely substantive appeal or submit new and material evidence within the one year appeal period. 3. In a June 2005 rating decision, the RO denied the Veteran's application to reopen his claim for entitlement to service connection for bilateral leg disability. The Veteran filed a timely notice of disagreement and the RO issued an April 2006 statement of the case, but the Veteran did not file a timely substantive appeal or submit new and material evidence within the one year appeal period. 4. In a June 2005 rating decision, the RO denied the Veteran's application to reopen his claims for entitlement to service connection for right knee disability. The Veteran filed a timely notice of disagreement and the RO issued an April 2006 statement of the case, but the Veteran did not file a timely substantive appeal or submit new and material evidence within the one year appeal period. 5. Evidence received since the April 2006 statement of the case relates to the bases for the prior denial of the claims for entitlement to service connection for chronic residuals of a head injury and right knee disability and raises a reasonable possibility of substantiating these claims. 6. Evidence received since the April 2006 statement of the case is cumulative of the evidence previously of record with regard to the claim for entitlement to service connection for bilateral leg disability. 7. The Veteran has chronic residuals of an in-service head injury. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for spina bifida occulta, S1, to include arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Codes 5299-5242 (2013). 2. The June 2005 rating decision that denied the applications to reopen the claim for entitlement to service connection for chronic residuals of a head injury, bilateral leg disability, and a right knee disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.202, 20.1103 (2013). 3. Evidence received since the decision and April 2006 statement of the case is new and material with regard to the claims of entitlement to service connection for chronic residuals of a head injury and a right knee disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. Evidence received since the decision and April 2006 statement of the case is not new and material with regard to the claim for entitlement to service connection for bilateral leg disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 5. Chronic residuals of head injury were incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. As to those applications which are reopened, and for which service connection is granted, VA's duties to notify and assist need not be discussed with regard to these claims. As to the application to reopen the claim for entitlement to service connection for a bilateral leg disability, VA notified the Veteran in November 2006 of the evidence and information necessary to reopen the claim, the evidence and information that is necessary to establish entitlement to the underlying benefit, and the date and basis for the most recent prior denial of the claim, pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006). As to the increased rating claim, VA notified the Veteran in November 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. In a July 2008 letter, VA provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim, including the general rating formula for diseases and injuries of the spine. The case was most recently readjudicated in November 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the claims being decided herein. Analysis Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, the current, uniform 40 percent rating is appropriate for the Veteran's lumbar spine disability. The Veteran's thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5242. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The use of the "99" series and a hyphenated diagnostic code reflects that there is no specific diagnostic code applicable to spina bifida occulta, S1, and it must be rated by analogy. 38 C.F.R. § 4.20. Diagnostic Code 5242 applies to degenerative arthritis of the spine. All diseases and injuries of the spine other than intervertebral disc syndrome, however, are to be evaluated under the general rating formula for diseases and injuries of the spine (general rating formula). Intervertebral disc syndrome is to be rated either under the general rating formula or under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, the only higher schedular rating available under the formula for rating intervertebral disc syndrome based on incapacitating episodes is a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Neither the VA treatment notes nor VA examination reports indicated that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Rather, there was no indication of ankylosis in any VA treatment records, VA examination reports, or the Veteran's statements. For example, on the May 2007 VA spine examination, range of motion figures were given for each plane of motion, with constant pain throughout each, and no ankylosis was noted. The Veteran did not offer any evidence that he had incapacitating episodes as defined in the applicable regulation. On the April 2009 VA examination, the Veteran indicated that during flare-ups he had to pretty much give everything up and was essentially bed bound, but did not indicate that a physician had prescribed bed rest. On examination, there was no obvious deformity of the spine and range of motion in all planes, with no indication of ankylosis. At the May 2012 VA examination, range of motion figures were given for each plane, but the Veteran was unable to perform repetitive motion testing due to pain. There was no indication of ankylosis or incapacitating episodes as defined in the applicable regulation. The examiner found that the Veteran did not have intervertebral disc syndrome. As there was no indication of ankylosis of the thoracolumbar spine or any part of the spine, no evidence of an intervertebral disc syndrome, or incapacitating episodes as defined in the applicable regulation throughout the appeal period, a rating higher than 40 percent is not warranted for the Veteran's thoracolumbar spine disability. In addition, as a general matter, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2004). In this case, however, the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis or incapacitating episodes. The Court has indicated that the cited regulations are not for application in these circumstances. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board will therefore not consider the DeLuca factors on this appeal. In addition, Note 1 to the general rating formula provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic code. There have, however, been no such associated objective neurologic abnormalities during the appeal period. Although on the May 2007 VA examination the Veteran complained of radiating pain to the calves and pain and tingling to the feet, and there were positive straight leg raises, the examiner specifically indicated that "neurological exam was normal." The Veteran also indicated that his spine disability did not seem to affect his bladder or bowels. There were no neurologic findings on the April 2009 VA examination, and on the May 2012 VA examination, muscle strength testing was a normal 5/5 in the hips, knees, ankles, and great toes, deep tendon reflexes were a normal 2+, and sensory examination was normal in the thighs, knees, legs, ankles, feet, and toes. Straight leg raising was negative bilaterally and there was no radicular pain or any other signs or symptoms due to radiculopathy. The weight of the evidence thus reflects no associated objective neurologic abnormalities warranting a separate rating under Note 1 to the general rating formula. To the extent that the examination findings conflict with the Veteran's statements, the Board finds that the specific findings of the trained health care professionals who conducted these examinations are of greater probative weight than the more general lay statements of the Veteran. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's thoracolumbar spine disability are fully contemplated by the applicable rating criteria. As shown above, the Veteran's symptoms of limitation of motion and activities caused by pain and stiffness are specifically contemplated by the general rating formula, which provides that with or without symptoms such as pain or aching in the area of the spine affected by residuals of injury or disease. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for consideration of an extraschedular rating for spina bifida occulta, S1, to include arthritis and degenerative joint disease, is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a rating higher than 40 percent at any time during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an increased rating for spina bifida occulta, S1, to include arthritis and degenerative joint disease must be denied. See 38 U.S.C.A. § 5107(b). Reopening Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If such new and material evidence had been submitted and had not been acted upon, a claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"). To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In order to determine whether new and material evidence has been received, the Board must analyze the law applicable to the underlying service connection claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a June 2005 rating decision, the RO denied the Veteran's application to reopen his claims for entitlement to service connection for chronic residuals of a head injury, bilateral leg disability, and right knee disability. While the Veteran filed a timely notice of disagreement he did not file a timely substantive appeal or submit new and material evidence within the one year appeal period. Therefore, the June 2005 denial is final. 38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. §§ 3.156, 20.202, 20.1103 (2012). In its most recent denial of the applications to reopen the claims for entitlement to service connection for bilateral leg and right knee disabilities, the RO wrote that there was no objective medical evidence of any chronic disability due to a head injury in military service, no evidence that a chronic bilateral leg condition had been clinically diagnosed, and that the evidence failed to show that a chronic right knee condition had been clinically diagnosed. The evidence before the RO at that time indicated that the Veteran had sustained a head injury in service when a large object hit him in the back and head, resulting in complaints of headaches, neck pain, cervical spasms, tinnitus, and photophobia. A November 1979 Medical Evaluation Board report indicated that physical examination was within normal limits except for the back, and the Veteran was discharged from service based on this back disability for which he has been granted service connection. The evidence also included post-service VA treatment records and examination reports. VA treatment records reflect a postservice injury to the right side of the face in 1992 with surgical repair. With regard to the legs, this evidence indicated that while the Veteran complained of radiating pain to the legs and knees, neurological examination findings were normal. With regard to right knee and head, however, there were conflicting findings. There were some findings of symptoms residual to in-service head injury and some findings indicating no residuals to in-service head injury. There were also some findings that the right knee was normal and some findings indicating a right knee disability, including arthritis. For example, a May 1981 VA treatment note indicated a normal right knee. On the March 1982 VA examination, the Veteran complained of a sharp pain in the head above the left eye and sharp right knee pain, but the impression was that there was no evidence of neurological disorder, head pain was considered functional in nature, and the back injury was not characterized by any nerve root compression or other neurologic features. A June 1996 VA treatment note indicated "bilateral knee pain - degenerative arthritis." A November 1996 VA examination indicated that there was a negative neurological examination, with no neurological deficit associated with the spine disability. A December 1996 VA examination report contained a diagnosis of degenerative joint disease of both knees. On the November 1997 VA examination, the Veteran complained of back pain going into the knee and thighs, but there was no objective evidence of weakness in the leg muscles and no evidence of any neurologic abnormality, and sensation was intact with subjective evidence of slightly diminished sensation in the left leg. There were also minimal arthritic changes in both knees. November 2000 peripheral nerves examination contained normal motor nerve, sensory nerve, and EMG studies, with an impression of normal studies with no electrophysiological evidence of left lumbosacral radiculopathy. On the November 2000 VA orthopedic examination, the right knee was essentially normal, reflexes were normal and there was subjective evidence of slightly diminished sensation in the left outer leg and foot and compared to the right. A February 2005 CT scan indicated no focal lesions, normal midline structures, and no extra-axial collections, but ventricles being at the upper limits of normal in size and slightly enlarged sulci. At a November 2005 VA examination the Veteran complained of back pain and burning pain down the left side of the left leg and foot when sitting and prolonged walking. On examination, there was spasm and tenderness with negative straight and supine leg raise other than some pain in the back and down to the lateral aspect of the thigh. Strength was a normal 5/5 and reflexes were slightly hypoflexic in the patella and Achilles tendon but symmetrical and sensation was globally normal. The evidence received since the most recent denial of the claim is essentially cumulative with regard to the legs as it shows complaints of pain in the legs radiating from the back but normal neurological findings in this regard. As noted, this evidence includes treatment records that were found in the residence of deceased VA staff member, as indicated in a June 2012 letter to the Veteran from a VA Medical Center. That evidence, however, is also cumulative of the evidence of record before the RO with regard to the legs at the time of the most recent prior denial, as it includes documents similarly showing complaints of radiating pain but normal neurological findings. For example, the January 1994 peripheral nerves examination contained normal neurologic findings and a diagnosis of lumbosacral stain with no evidence of radiculopathy on neurological examination. This is similar to the other evidence noted above in connection with the increased rating claim containing multiple complaints of pain radiating from the back to the legs but repeated normal neurologic and other findings, including on the May 2007 and May 2012 examination. The evidence received since the most recent prior denial with regard to the legs is therefore cumulative of the evidence before the RO at the time of the prior denial, and reopening of the claim for entitlement to service connection for bilateral leg disability is therefore not warranted. As to the head injury residuals, however, there is a November 1983 VA psychological evaluation indicating that the Veteran had moderate to severe neuropsychological deficits consistent with a previous head trauma involving damage to the right hemisphere. In addition, a February 2007 VA psychology-neuropsychology assessment that contains an Axis I diagnosis of cognitive disorder due to traumatic brain injury. Although the RO found the opinion lacked probative value, weighing of the evidence may only be conducted after a claim has been reopened. Hence, the claim of entitlement to service connection for chronic residuals of a head injury other than headaches is reopened. As to the right knee, although there was conflicting evidence as to whether the Veteran had a current right knee disability prior to the most recent denial, the evidence received since the prior denial definitively indicates that the Veteran has right knee arthritis, for example a January 2009 VA treatment note indicating prior right knee arthroscopic surgery and containing a diagnosis of right knee arthritis. As this evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim, the claim is reopened. Service Connection As indicated above, the Veteran suffered an in-service head injury and there are multiple medical opinions as to whether he has current disability due to this injury, other than the dysthymic disorder and headaches for which the Veteran has been granted service connection. As noted, a November 1983 VA psychological evaluation prepared by a VA psychologist indicated that the Veteran had moderate to severe neuropsychological deficits consistent with a previous head trauma involving damage to the right hemisphere. The tests conducted were Halsted-Reitan Neuropsychological Test Battery, Wechsler Adult Intelligence Scale, Trails A and B, and Aphasia Screening Test. The test results indicated deficits suggesting primary involvement of the right hemisphere. The Veteran had particular difficulty with visuo-spatial tasks, both two dimensional recognition and three dimensional constructional tasks. Performance with the left hand on both motor speed and tactile integration tasks was below expectations. The psychologist noted that such deficits are typically seen in persons with right hemisphere neurological dysfunctions. In addition, a February 2007 VA psychology-neuropsychology assessment that contains an Axis I diagnosis of cognitive disorder due to traumatic brain injury, but no rationale was given. In contrast, in an October 2012 VA traumatic brain injury examination report, a VA neuropsychiatrist found that, the Veteran likely suffered a mild traumatic brain injury in service, but that currently there are no residuals likely attributable to this injury. He noted complaints of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing, occasionally inappropriate social interaction, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light, that the Veteran did not get along with people and had anger problems at work and with people. In response to whether the Veteran had any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a traumatic brain injury (such as migraine headaches or Meniere's disease) the examiner responded in the affirmative, and checked the box indicating headaches, including migraine headaches. The examiner concluded that there was no complaint, suggestion, or objective evidence of problems in the domains of attention, concentration, or executive functions that could be directly associated with the head trauma event during service. He noted that while there was some evidence of difficulties with attention and executive functions in two neuropsychological reports, he could see no valid means of determining that these were exclusively or partially due to the in-service injury, as there were numerous confounding variables that could be contributory to the cognitive findings since the minor head injury during service. With regard to social interactions, the examiner found that while there had been incidents of verbal threats made to other persons over the years, he suspected that these were associated with personality traits rather than residuals of organic personality changes due to head trauma. In his impressions/conclusions, the examiner noted that "there had been no complaint or medical report of residual cognitive dysfunction that I could find." The examiner noted at the time of the event, there was no documented evidence that the Veteran suffered a sufficient blow to cause loss of consciousness, or post traumatic amnesia. The examiner also noted the contemporaneous characterization of the incident as "minor" without any mention of cognitive residuals, and that the Veteran had consistently and vigorously complained of back, headache, and neck pain over the decades, and that these were physical complaints rather than complaints of cognitive dysfunction. He noted the February 2007 diagnosis of cognitive disorder due to traumatic brain injury, and found this to be a dubious conclusion based on the available evidence. He noted the Veteran's history of alcohol and drug abuse, and his psychiatric disorders, which could have contributed to the neuropsychiatric findings. He noted other possible reasons for the neuropsychiatric findings, such as test taking effort, discrepancies in reporting of symptoms, the possible presence of dysfunction prior to injury, the possibility of early developmental learning disability, the lack of abnormality on CT scan, and the tentative nature of an EEG report showing suggestion of trauma induced brain wave alteration. He concluded that it was unlikely that any cognitive difficulties were directly tied to the in-service injury, in the absence of documented moderate to severe head trauma with persisting cognitive symptoms initially present in close proximity to such event. He wrote, "There is no documented medical evidence to support a diagnosis of cognitive residuals specifically from head trauma." In sum, the examiner concluded that the Veteran suffered a mild traumatic brain injury in service, but that there were currently no residuals likely attributed to his accidental injury in service. The Veteran also underwent an October 2012 VA examination by a certified physician's assistant, who noted the in-service head injury, the post service head injury, headaches described by the Veteran, the medical evaluation board report, the diagnosis of tension headache in-service. The physician's assistant opined that the Veteran's history was consistent with muscle tension headaches. The examiner concluded that the claimed condition (headaches) were at least as likely as not due to service. The examiner's rationale was that the Veteran had tension headaches documented in service, but there was no evidence to support that there was an organic cause, such as trauma from the in-service injury, because of the contemporaneous finding by the medical board that the headaches were functional. The examiner noted that the Veteran had established a nexus between his current headaches and service, as he had continuously complained of them since service. On review of the above medical opinions, the Board finds that the weight of the evidence supports the Veteran's contention that he has chronic residuals of his in-service head injury, other than the headaches and dysthymic disorder for which he has been granted service connection. The most thorough medical opinion is that of the October 2012 traumatic brain injury examiner, but this opinion is nevertheless flawed for the following reasons. While the examiner specifically addressed the February 2007 diagnosis of cognitive disorder due to traumatic brain injury, he did not address the October 1983 diagnosis of moderate to severe neuropsychological deficits consistent with a previous head trauma. In fact, most of the October 2012 VA examiner's rationale was based on the lack of such a finding. The October 1983 diagnosis, however, was based on specific neuropsychological test results, and preceded the 1992 post-service head injury. Similarly, the October 2012 headache examiner noted the post-service head injury but did not address the findings of neuropsychological deficits due to previous head trauma. The October 2012 VA examiners' opinions were therefore based at least in part on an inaccurate factual premise and therefore of limited probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Moreover, while the February 2007 diagnosis of cognitive disorder due to traumatic brain injury in lacking in probative value due to an absence of rationale, the October 1983 opinion does contain a rationale that is consistent with the evidence of record at that time and is therefore of significant probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The October 1983 opinion is also the opinion closest in time to the in-service head injury. The Board therefore finds that the October 1983 opinion is of greatest probative weight. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The October 1983 diagnosis therefore cannot by itself satisfy the current disability requirement. Recently, however, the Court found that the report of diagnosis prior to the filing of a claim is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In this case, the VA traumatic brain injury examiner indicated that there were symptoms that could be residual to traumatic brain injury, but he found that they could not be definitively so attributed. Given the above weighing of the medical opinions, the Board finds that there are neuropsychiatric symptoms that are at least as likely as not attributable to the in-service head injury and entitlement to service connection for chronic residuals of head injury is therefore warranted. ORDER Entitlement to a rating higher than 40 percent for spina bifida occulta, S1, to include arthritis, is denied. The application to reopen a claim of entitlement to service connection for chronic residuals of a head injury is granted. Entitlement to service connection for chronic residuals of head injury in granted. The application to reopen a claim of entitlement to service connection for bilateral leg disability is denied. The application to reopen a claim of entitlement to service connection for right knee disability is granted. REMAND In a November 2012 rating decision, the RO granted entitlement to service connection for dysthymic disorder with a 70 percent rating, effective January 23, 2009. A July 2013 email response to a Congressional inquiry indicated that March 2013 correspondence from the Veteran reflects that he disagreed with the assigned rating. A review of the claims file and Virtual VA does not reflect that a statement of the case has been issued. An unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App 238, 240-241 (1999). In addition, as there is evidence of current right knee disability that may be associated with service or the service-connected thoracolumbar spine disability, a VA examination as to the etiology of the current right knee disability is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a statement of the case addressing the issue of what evaluation is warranted for dysthymic disorder from January 23, 2009. The appellant is hereby informed that the Board will exercise appellate jurisdiction over this claim only if he files a timely substantive appeal. 2. Any pertinent outstanding VA or other inpatient or outpatient treatment records relating to the right knee should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to VA. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for a VA examination as to the etiology of his right knee disability. All necessary tests should be conducted. The examiner must be provided access to the claims file, to include Virtual VA. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's right knee disability is related to service. If not, the examiner must address whether it is at least as likely as not that a right knee disability is either (a) caused or (b) aggravated by the service-connected thoracolumbar spine disability. A complete rationale should accompany each opinion provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim for entitlement to service connection for a right knee disability must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs