Citation Nr: 1512238 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 13-07 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left hand arthritis disability. 2. Entitlement to service connection for a left hand arthritis disability. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a headache disability. 4. Entitlement to service connection for a headache disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD D. A. Hoffman, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to November 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal was processed using the Veteran's paper file, as well as electronic VA folders (Virtual and VBMS). The issues of entitlement to service connection for a left hand arthritis disability and entitlement to service connection for a headache disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran's previous claim for service connection for a left hand arthritis disability was denied in December 2010. The Veteran did not appeal or submit new and material evidence within one year of the denial. 2. Evidence received since the December 2010 rating decision raises a reasonable possibility of substantiating the Veteran's left hand arthritis disability claim. 3. The Veteran's previous claim for service connection for a headache disability was denied in December 2010. The Veteran did not appeal or submit new and material evidence within one year of the denial. 4. Evidence received since the December 2010 rating decision raises a reasonable possibility of substantiating the Veteran's headache disability claim. CONCLUSIONS OF LAW 1. The December 2010 rating decision which denied entitlement to service connection for a left hand arthritis disability is final. 38 U.S.C.A. § 7105(c) (West 2010); 38 C.F.R. § 3.104, 20.302, 20.1103 (2010). 2. Evidence received since the December 2010 rating decision relating to the Veteran's claim for entitlement to service connection for a left hand arthritis disability is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). 3. The December 2010 rating decision which denied entitlement to service connection for a headache disability is final. 38 U.S.C.A. § 7105(c) (West 2010); 38 C.F.R. § 3.104, 20.302, 20.1103 (2010). 4. Evidence received since the December 2010 rating decision relating to the Veteran's claim for entitlement to service connection for a headache disability is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Regardless of an RO's decision to reopen the Veteran's service connection claim, the Board is nevertheless required to address the issue of reopening to determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.302 (2014). Absent appeal, a decision by the agency of original jurisdiction is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2014). In this case, the Veteran submitted claims for left hand arthritis and headache disabilities in October 2010. The RO denied service connection for these disabilities in an unappealed December 2010 rating decision. The denial of service connection for the left hand arthritis disability was based on a finding that the evidence did not show a diagnosis of arthritis. The denial of service connection for headaches was based on a finding that there was no evidence of a diagnosis of headaches or a concussion in service, no objective evidence linking the claimed headaches to service, nor any evidence showing that the headaches were diagnosed within one year of discharge from service. The Veteran did not appeal the December 2010 rating decision, and it became final in November 2011. In March 2012 the Veteran submitted a statement in support of claim inquiring as to the status of his claims which stated that he was not afforded VA medical examinations for his claims. The RO then informed the Veteran how to reopen his claim, and in an April 2012 addendum to the statement in support of claim the Veteran requested the RO to consider his statement in support of claim as a request to reopen his claims. The RO subsequently sent the Veteran VCAA notice in April 2012 and scheduled the Veteran for various VA medical examinations, which occurred in May 2012. On examination, the Veteran was diagnosed as having mild thumb interphalangeal degenerative joint disease. The May 2012 examination regarding the Veteran's left hand arthritis is new evidence as a diagnosis of arthritis was not previously of record. The May 2012 examination is also material evidence as it relates to an unestablished fact necessary to establish service connection under Shedden, and raises a reasonable possibility of substantiating the claim. Moreover, in the substantive appeal, the Veteran reported that he experienced headaches during military service which worsened after service. The Veteran's credibility is presumed for the purposes of reopening. As he asserts that he had headaches which worsened, and thus continued, after service, the evidence is considered both new and material. See 38 C.F.R. § 3.156(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Because new and material evidence has been received, the claims for service connection for a left hand arthritis disability and headache disability are reopened. The issues of entitlement to service connection for a left hand arthritis disability and entitlement to service connection for a headache disability are addressed in the REMAND portion of the decision. ORDER New and material evidence having been received, the claim of service connection for a left hand arthritis disability is reopened. New and material evidence having been received, the claim of service connection for headaches is reopened. REMAND The Veteran contends that his current left hand arthritis and headache disabilities are the result of his service. The Board finds that additional development is warranted. The Veteran's October 2010 claim for a headache disability stated he had a concussion in service as a result of an incident in a Humvee in which he was crushed by other passengers and received a concussion. The Veteran received a VA examination regarding his headaches in May 2012. That examination reports the Veteran stating that his headaches began after service. As a result of the alleged statements by the Veteran, the VA examiner did not offer a further etiology opinion, stating none was required. Subsequently, in a July 2012 notice of disagreement, the Veteran stated that what the VA examiner reported the Veteran said in the examination is not true, that his headaches in fact began during service. Additionally, in the Veteran's March 2013 VA Form 9 the Veteran stated that he did experience headaches during service which worsened after his military service. Given that there is now new evidence of headaches incurring in service which was not of record when the May 2012 examiner reviewed the Veteran's file, that is, statements by the Veteran suggesting headaches beyond the one headache documented in the Veteran's service treatment records, a new examination and opinion considering the additional evidence is needed. 38 C.F.R. § 3.159(c)(4) (2014). The Veteran's VA health records note that the Veteran was seen for arthritis by Dr. Swift and at the University of Nebraska Medical Center (UNMC) in 2010. The Veteran's medical records from Dr. Swift and UNMC have not been associated with the claims file. This should be accomplished on remand. The most recent VA treatment records in the virtual claims file are dated January 16, 2014. The Veteran's more recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all the Veteran's VA treatment records dated from January 17, 2014 to present. 2. Request that the Veteran provide the names and addresses of all medical providers who have records regarding treatment for his arthritis or headache disabilities, to include Dr. Swift and the University of Nebraska Medical Center. After the Veteran has signed any appropriate releases, obtain and associate with the claims file all of the identified treatment records. All attempts to procure records should be documented in the file. If any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative should be notified of unsuccessful efforts to procure records in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. When the above action has been accomplished, afford the Veteran a VA medical examination by an appropriate medical provider for the purpose of obtaining an opinion as to the etiology of the Veteran's current headaches. The claims folder must be made available to the examiner, and the examiner must specify in the examination report that the claims file was reviewed. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's headache disability began in or is related to service. The VA examiner's attention is directed to the competent lay statements of the Veteran regarding the onset of his headaches in service, as well as statements reporting he had a concussion in service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Then readjudicate the Veteran's claims after ensuring that any other development deemed warranted is complete. If the benefits sought are not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs