Citation Nr: 1336980 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-07 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of a right shoulder injury, to include as due to an undiagnosed illness. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for joint pain, to include as due to an undiagnosed illness. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a respiratory disability, to include chronic obstructive pulmonary disease, and also to include as due to an undiagnosed illness. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for migraine headaches, to include as due to an undiagnosed illness. 5. Entitlement to service connection for residuals of a right shoulder injury, to include as due to an undiagnosed illness. 6. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness. 7. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease, and to also include as due to an undiagnosed illness. 8. Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness. 9. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness. 10. Entitlement to service connection for muscle pain, to include as due to an undiagnosed illness. 11. Entitlement to service connection for dermatitis, to include as due to an undiagnosed illness. 12. Entitlement to service connection for bilateral hearing loss. 13. Entitlement to service connection for tinnitus. 14. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and K. M. ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from December 1987 to December 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2011, the Veteran testified at a videoconference Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claim folder. Claims for service connection for residuals of a right shoulder injury, joint pain, a respiratory disability and migraine headaches, were previously denied by the RO. Although the RO apparently reopened these claims in the April 2009 rating decision, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). The reopened claims for service connection for residuals of a right shoulder injury, joint pain, a respiratory disability and migraine headaches, as well as the claims for service connection for chronic fatigue, muscle pain, dermatitis, bilateral hearing loss, and for tinnitus and the claim for an increased disability rating for patellofemoral pain syndrome of the right knee are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a rating decision in December 1993, the RO denied service connection for residuals of a right shoulder injury; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. 2. The additional evidence since the rating decision in December 1993 by the RO, denying service connection for residuals of a right shoulder injury, relates to an unestablished fact necessary to substantiate the claim. 3. In a rating decision in December 1996, the RO denied service connection for joint pain; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. 4. The additional evidence since the rating decision in December 1996 by the RO, denying service connection for joint pain, relates to an unestablished fact necessary to substantiate the claim. 5. In a rating decision in December 2005, the RO denied service connection for chronic obstructive pulmonary disease; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. 6. The additional evidence since the rating decision in December 2005 by the RO, denying service connection for a respiratory disability, relates to an unestablished fact necessary to substantiate the claim. 7. In a rating decision in April 2006, the RO reopened and denied service connection for migraine headaches; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. 8. The additional evidence since the rating decision in April 2006 by the RO, denying service connection for migraine headaches, relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of service connection for residuals of a right shoulder injury. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2013). 2. New and material evidence has been presented to reopen the claim of service connection for joint pain. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2013). 3. New and material evidence has been presented to reopen the claim of service connection for a respiratory disability, to include chronic obstructive pulmonary disease. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2013). 4. New and material evidence has been presented to reopen the claim of service connection for migraine headaches. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claims to reopen the previously denied claims of service connection for residuals of a right shoulder injury, joint pain, a respiratory disability, and migraine headaches, the only claims decided VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Claims The Veteran is seeking to reopen his claims of entitlement to service connection for residuals of a right shoulder injury, joint pain, a respiratory disability, and migraine headaches, denied by December 1993, December 1996, December 2005 and April 2006 rating decisions, respectively. The Veteran did not appeal the rating decisions. The decisions are final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.150(d), 20.302, 20.1103. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Residuals of a Right Shoulder Injury Procedural History and Evidence Previously Considered In a rating decision in December 1993, the RO denied service connection for residuals of a right shoulder injury because the Veteran was treated for a temporary condition in service that resolved and there was no evidence of a current right shoulder condition. In a letter dated in January 1994, the RO notified the Veteran of the adverse determination and of his procedural and appellate rights. As the Veteran did not appeal the rating decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran, the rating decision became final by operation of law on the evidence of record, except the claim may be reopened if new and material evidence is presented. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The evidence of record at the time of the December 1993 rating decision consists of service treatment records and a September 1993 VA examination report. The service treatment records show the Veteran was treated for right shoulder pain of two months' duration in August 1988. The assessment was right shoulder trauma. There are no subsequent complaints, finding, treatment, or diagnosis of a right shoulder abnormality. In September 1993 on VA examination, the Veteran gave a history of recurrent right shoulder pain since his in-service injury and the impression was history of right shoulder injury intermittently symptomatic. X-ray studies of the right shoulder showed no significant abnormality. Additional Evidence and Analysis In August 2008, the Veteran filed the current claim to reopen. The additional evidence presented since the rating decision in December 1993 consists, in pertinent part, of VA reports of examinations in January 2009 and in March 2011 that show a diagnosis of degenerative arthritis of the right shoulder. There is also an undated letter from a private chiropractor, who indicated that the Veteran was injured in service and that the injury resulted in musculoskeletal disability. The additional evidence relates to unestablished facts necessary to substantiate the claim, that is, evidence of a current disability and evidence etiologically linking the current disability to service. The lack of evidence of a current disability was in part the basis for the previous denial of the claim. As the additional evidence raises a reasonable possibility of substantiating the claim of service connection, the evidence is therefore new and material under 38 C.F.R. § 3.156. For this reason, the claim of service connection for residuals of a right shoulder injury is reopened. Joint Pain Procedural History and Evidence Previously Considered In a rating decision in December 1996, the RO denied service connection for joint pain to include as due to undiagnosed illness because the Veteran was diagnosed with fibromyalgia, a known clinical diagnosis which neither occurred in nor was caused by service. In a letter dated that same month, the RO notified the Veteran of the adverse determination and of his procedural and appellate rights. As the Veteran did not appeal the rating decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran, the rating decision became final by operation of law on the evidence of record, except the claim may be reopened if new and material evidence is presented. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The evidence of record at the time of the December 1996 rating decision consisted of service treatment records, private medical records, VA records, and VA reports of examinations in September 1993, in September 1995, and March 1996. The service treatment records show no complaint, finding, treatment, or diagnosis of generalized joint pain. In September 1993 on VA examination, the impression was intermittently symptomatic thoracic spine compatible with mild recurrent myalgia. In September 1995 on VA examination, the Veteran complained of generalized joint pain. The diagnosis was joint pain in multiple joints without objective evidence of pathology. In March 1996 on a VA Persian Gulf examination, the diagnosis was fibromyalgia. Additional Evidence and Analysis In August 2008, the Veteran filed the current claim to reopen. The additional evidence presented since the rating decision in December 1996 consists in pertinent part, on reports of VA examinations in July 2004, in January 2009 and in March 2011 that show diagnoses of tendonitis or chronic strains in several joints, as well as degenerative joint disease in the cervical and lumbar spines. In an undated letter, a private chiropractor stated that the Veteran had persistent joint pain as a result of participation in Desert Shield and Desert Storm. The additional evidence relates to an unestablished fact necessary to substantiate the claim, that is, an etiological link of persistent joint pain, variously diagnosed, to the Veteran's service. The lack of such evidence was the basis for the previous denial of the claim. As the additional evidence raises a reasonable possibility of substantiating the claim of service connection, the evidence is therefore new and material under 38 C.F.R. § 3.156. For this reason, the claim of service connection for joint pain to include as due to an undiagnosed illness is reopened. Respiratory Disability Procedural History and Evidence Previously Considered In a rating decision in December 1993, the RO denied service connection for upper respiratory problems as there was no evidence of treatment for such in service and no evidence of a current disability. In December 1996, the RO denied service connection for a respiratory disability to include as due to an undiagnosed illness, on the basis that the disability was the result of a known clinical diagnosis of asthma which neither occurred in nor was caused by service. In December 2005, the RO denied service connection for chronic obstructive pulmonary disease on the basis that the disability was a result of a known diagnosis and was not incurred in service. After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. And the rating decision in December 2005 became final by operation of law based on the evidence of record. 38 U.S.C.A. § 7105. The evidence at the time the claim was last denied consisted of service treatment records, private medical records, VA records, and reports of VA examinations in September 1993, in September 1995, in March 1996, and in July 2004. The service treatment records contained no relevant complaint, treatment, or diagnosis. In October 1989 on a dental health questionnaire, the Veteran denied a history of asthma, emphysema, or persistent cough. In June 1991, the Veteran gave a history of asthma, hay fever, and sinus problems. In November 1991, the Veteran gave a history of asthma and shortness of breath. The physician noted that the breathing problem had cleared after a nasal septoplasty two months before and that the Veteran had an asthma attack at age 7 with no problem since then. On separation examination, the clinical evaluation of the lungs and chest was normal. In September 1993 on VA examination, the Veteran complained of some difficulty taking a deep breath. The e examiner found no clinical evidence of a respiratory disease. In September 1995 and in October 1995, VA pulmonary function tests were normal. In September 1995 on VA examination, the Veteran complained of shortness of breath with exertion, but denied other respiratory complaints. The assessment was shortness of breath with a notation to see pulmonary function tests. In July 2004 on VA examination, the Veteran gave a history of chronic lung disease since October 2001. He stated that he had asthma attacks on a monthly basis and was using a nebulizer on a daily basis. He also stated that he almost constantly had respiratory infections. The VA examiner found objective evidence of coarse breath sounds in the left lung and slightly distinct qualities in the right lung, but the findings were insufficient to make a diagnosis. In March 2005 in letter, the Veteran's private physician stated that the Veteran had been diagnosed with Mycobacterium Terrae Complex. Additional Evidence and Analysis In August 2008, the Veteran filed the current claim to reopen. The additional evidence presented since the rating decision in December 2005 consists, in pertinent part, of an April 2008 VA emergency room record, showing that the Veteran complained of shortness of breath and that history included a diagnosis of chronic obstructive pulmonary disease. In January 2009 and in March 2011 on VA examinations, the diagnosis was mild obstructive lung disease. In an undated letter, the Veteran's private chiropractor expressed the opinion that the Veteran had a respiratory disability to include chronic obstructive pulmonary disorder due to service in Desert Shield and Desert Storm. The additional evidence relates to an unestablished fact necessary to substantiate the claim, that is, evidence of an etiological link of the current respiratory disability to service. The lack of such evidence was in part the basis for the previous denial of the claim. As the additional evidence raises a reasonable possibility of substantiating the claim of service connection, the evidence is therefore new and material under 38 C.F.R. § 3.156. For this reason, the claim of service connection for a respiratory disability to include chronic obstructive pulmonary disease as due to an undiagnosed illness is reopened. Migraine Headaches Procedural History and Evidence Previously Considered In a rating decision in December 1993, the RO denied service connection for migraine headaches because the Veteran was treated for one complaint of migraine headache in service that resolved and there was no evidence of a current chronic headache condition. In a letter dated in January 1994, the RO notified the Veteran of the adverse determination and of his procedural and appellate rights. In March 2006, the RO denied the application to reopen the claim of entitlement to service connection for migraine headaches on the basis that there was no new and material evidence submitted to show a diagnosis of migraine headaches or etiologically linking such to the Veteran's service. In a rating decision in April 2006, the RO reopened the claim and then denied the claim for service connection for migraine headaches on the basis that the diagnosed migraine headaches were not etiologically linked to service. After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. And the rating decision became final by operation of law based on the evidence of record. 38 U.S.C.A. § 7105. The evidence of record at the time the claim was last denied consisted of the service treatment records, private medical records, VA records, and reports of VA examinations in September 1993, in September 1995, and in March 1996. The evidence also included a December 2003 private neurology consultation report. The service treatment records show the Veteran was treated for exertional vascular headaches on one occasion in July 1988. It was noted that the headaches were most likely the beginning of migraine syndrome. In September 1993 on VA examination, there was no history of recurrent headaches. In September 1995 and in March 1996 on VA examinations, the diagnosis was tension headaches. In December 2003 in a private neurology consultation, the neurologist stated that the episodic headache were consistent with migraine. Additional Evidence and Analysis In August 2008, the Veteran filed the current claim to reopen. The additional evidence presented since the rating decision in April 2006 consists, in pertinent part, of VA examinations in January 2009 and in March 2011, which showed diagnoses of chronic headaches and chronic muscle tension headaches, respectively. In an undated letter, the Veteran's private chiropractor stated that the Veteran had migraine headaches as a result of his participation in Desert Shield and Desert Storm. The additional evidence relates to an unestablished fact necessary to substantiate the claim, that is, evidence of an etiological link of migraine headaches to service. The lack of such evidence was in part the basis for the previous denial of the claim. As the additional evidence raises a reasonable possibility of substantiating the claim of service connection, the evidence is therefore new and material under 38 C.F.R. § 3.156. For this reason, the claim of service connection for migraine headaches is reopened. ORDER As new and material evidence has been presented, the claim of service connection for residuals of a right shoulder injury is reopened, and, to this extent only, the appeal is granted. As new and material evidence has been presented, the claim of service connection for joint pain to include as due to an undiagnosed illness, is reopened, and, to this extent only, the appeal is granted. As new and material evidence has been presented, the claim of service connection for a respiratory disability to include chronic obstructive pulmonary disease and due to an undiagnosed illness is reopened, and, to this extent only, the appeal is granted. As new and material evidence has been presented, the claim of service connection for migraine headaches is reopened, and, to this extent only, the appeal is granted. REMAND On the reopened claims of service connection for residuals of a right shoulder injury, joint pain, a respiratory disability, and migraine headaches, as well as the claims of service connection for dermatitis, muscle pain, chronic fatigue, bilateral hearing loss, and tinnitus, as the evidence of record is insufficient to decide the applicable theories of service connection further development under the duty to assist is needed. As for the claim of service connection for a bilateral hearing loss disability, on VA audiologic examination in January 2009 and in the addendum in April 2009, the VA examiner stated that the Veteran had normal hearing by audiogram. The audiogram shows that in the right ear speech recognition was 92 percent in the right ear, which meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385. As the VA examiner relied, in part, on incorrect facts, a new examination under the duty to assist is needed. As for the claim of service connection for tinnitus, on VA audiologic examination in January 2009 and in the addendum in April 2009, the VA examiner stated that the current tinnitus was less likely than not a result of military service because of normal hearing and the Veteran's reported history of onset of tinnitus after service. The Veteran has consistently stated that tinnitus began in service, not after service. As the VA examiner relied, in part, on incorrect facts, a new examination under the duty to assist is needed. As for the claim for increase for right patellofemoral pain syndrome, after the Veteran was last examined by VA in March 2011, the Veteran testified that he was currently prescribed a knee brace for instability. As There is a need to verify the current severity of the disability, and a reexamination under 38 C.F.R. § 3.327 is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that: a). Right shoulder arthritis is a progression of the right shoulder pain in August 1988 in service or the development of a new and separate condition after service; b). Joint pain, muscle pain, chronic fatigue, chronic obstructive pulmonary disease, or dermatitis is an undiagnosed illness or a medically unexplained chronic multisymptom illness such as chronic fatigue syndrome or fibromyalgia, or are otherwise related to an injury or disease in service; and, c). Migraine headache is a progression of the exertional vascular headaches in service or the development of a new and separate condition after service? d). In the alternative, whether chronic fatigue or migraine headache are aggravated by service-connected posttraumatic stress disorder. The term "aggravation" means a permanent increase in the underlying disability, that is, an irreversible worsening beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms. If, however, after a review of the record, an opinion is not possible without resort to speculation, the VA examiner(s) is asked to clarify that the opinion cannot be rendered because there are other potential causes unrelated to service, please identify the other potential etiologies, and that an opinion is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be made available to the examiner for review. 2. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine: a). Whether the Veteran has a hearing loss disability in one ear or both ears under 38 C.F.R. § 3.385, speech recognition of 92 percent meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385, and, if so, b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the current hearing loss in one ear or both ears under 38 C.F.R. § 3.385 is related to noise exposure in service? c). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that tinnitus is related to noise exposure in service? In formulating the opinion, although there is no contemporaneous record of impaired hearing or tinnitus in service, the Veteran as a lay person is competent to describe symptoms of impaired hearing and tinnitus, and the Board finds the Veteran's statements credible. The Veteran's file must be made available to the VA examiner for review. 3. Afford the Veteran a VA examination to determine the current severity of the service-connected right knee disability. The VA examiner is to describe: a). Right knee range of flexion and extension in degrees and whether there is any other functional loss due to pain, weakened movement, excess fatigability, and incoordination, or with repetitive use or flare-ups. If feasible, any additional functional loss should be expressed terms of loss of flexion or extension. b). The severity of any recurrent subluxation or lateral instability. The Veteran's file must be made available to the VA examiner for review. 5. After the above development adjudicate the claims of service connection and the claim for increase the right knee. If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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. 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs