Citation Nr: 1600029	
Decision Date: 01/04/16    Archive Date: 01/12/16

DOCKET NO.  11-03 728	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a service connection claim for a headache disability.

2.  Entitlement to service connection for a headache disability.

3.  Entitlement to service connection for a menstruation disability, including amenorrhea and under 38 C.F.R. § 3.317.  

4.  Entitlement to service connection for obesity, including as a qualifying chronic disability under 38 C.F.R. § 3.317.

5.  Entitlement to service connection for a bilateral foot, including as a qualifying chronic disability under 38 C.F.R. § 3.317. 

6.  Entitlement to a rating in excess of 20 percent for right knee degenerative joint disease (right knee disability).

7.  Entitlement to a rating in excess of 20 percent for left knee degenerative joint disease (left knee disability).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Theophilus Griffin, Counsel


INTRODUCTION

The Veteran had active service from August 1981 to August 2005, including service in the Southwest Asia theater of Operations from October 17, 1990, to April 20, 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and August 2010 decisions of the Roanoke, Virginia, Regional Office (RO).  

The May 2008 rating denied respective ratings in excess of 20 percent for right and left knee disabilities, and the RO received a competent January 2009 submission from the Veteran.  The statement may not reasonably be construed as a notice of disagreement (NOD) with the May 2008 determinations; however, VA was in receipt of new of material evidence relevant to the disabilities within one year of its issuance.  See 38 C.F.R. § 3.156(b) (2015); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006).  In such a situation, any subsequent adjudication must relate back to the original claim and May 2009, November 2009, and April 2010 ratings do not reflect such consideration, precluding this aspect of the May 2007 decision from becoming final.  Thus, the May 2008 rating is the proper rating on appeal.   

On her October 2011 Appeal to Board of Veterans' Appeals (VA Form 9), the Veteran requested a Board hearing in connection with the present appeal, such hearing was scheduled in January 2014.  The Veteran failed to report for the scheduled hearings and no request for postponement been received nor has a showing of good cause for failing to appear been demonstrated.  38 C.F.R. §§ 20.703, 20.704 (2015).  Thus, the Veteran's Board hearing request is deemed withdrawn.   

The issues of entitlement to service connection for a headache disability, a menstruation disability, an obesity disability, a bilateral foot disability, as well as entitlement to ratings in excess of 20 percent for right and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a January 2007 rating decision, the RO found that there was insufficient evidence to confirm the Veteran's claimed headache disability was related to service, and the Veteran did not perfect appellate review of the decision.

2.  Evidence associated with the claims file since the January 2007 rating decision became final includes new evidence that relates to an unestablished fact necessary to substantiate the claim for service, and raises a reasonable possibility of substantiating the claim.






CONCLUSIONS OF LAW

1.  The January 2007 rating decision in which the RO denied service connection for a headache disability is final.  38 U.S.C.A. § 7105(b) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015).

2.  As pertinent evidence received since the RO's January 2007 rating decision became final is new and material, the criteria for reopening the claim for service connection for a headache disability are met.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is reopening the service connection claim for a headache disability, and to this extent, the Board is granting the only aspect of the appeal decided at this time.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.   

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

The initial service connection claim for a headache disability was considered and denied in a January 2007 rating decision.  The decision noted that the evidence was insufficient evidence to establish the Veteran's claimed headache disability was related to military service.  The Veteran filed a notice of disagreement with this determination but did not perfect an appeal of the decision.   Thus, the January 2007 decision became final as to the evidence then of record, and may not be considered on the same factual basis.  See 38 U.S.C.A. § 7105(c).

However, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 

In this case, the Veteran sought to reopen his claim for service connection in January 2010.  For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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).

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 

Since the January 2007 decision became final, additional evidence has been associated with the claims file.  The evidence includes the January 2010 statement of the Veteran that discusses numerous disabilities she believes are related to military service and this statement includes a headache disability.  This statement reasonably reflects a competent account of the nature of the claimed disability and that the disability is related to in-service events or had its onset in service.

This evidence is "new" in that it was not before agency decision makers at the time of the January 2007 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record.  The evidence is also "material" in that it goes to the question of whether the Veteran has a current disability (a headache disability) related to service or relates to unestablished facts necessary to substantiate the claim.  This evidence is presumed credible solely for purposes of reopening, and raises a reasonable possibility of substantiating the claim.  See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010).  The criteria for reopening the claim for service connection for a headache disability are met.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  


ORDER

New and material evidence sufficient to reopen the claim for service connection for a headache disability has been received, to this limited extent, the appeal is granted.


REMAND

Having reopened the service connection claim for a headache disability, VA has a duty to assist in the development of the claim, by conducting appropriate medical inquiry.  The Veteran provides a competent account of in- and post-service headache symptomatology.  Further, the competent medical evidence suggests the Veteran may have a currently diagnosed headache disability.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  On remand, the Veteran must be provided an appropriate examination. 

The Veteran provides a competent account of menstruation, obesity, and bilateral foot symptomatology, including in-service onset.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The medical evidence also suggests the Veteran has currently diagnosed disabilities associated with the respectively reported symptoms.  On these facts, VA has a duty to provide the Veteran appropriate examinations related to her respective claims.  Id.  Adequate examinations must be obtained on remand.  

The record reflects that the Veteran receives regular VA treatment for her claimed headache, menstruation, obesity, and bilateral foot disabilities; however, no relevant VA treatment records dated since June 2013 have been associated with the claims folder.  While not definitive, the record also suggests the Veteran receives regular private care for these disabilities, but the record does not reflect adequate attempts to obtain reasonably identified records.  On remand, efforts to obtain these relevant and reasonably identified records must be undertaken.  

VA is obligated to consider all theories of entitlement reasonably raised by the record.  See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000).  Accordingly, although she has not asserted entitlement to service connection for a respective headache, menstruation, obesity, and foot disabilities under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, the record confirms the Veteran's service in the Southwest Asia theater of Operations from October 17, 1990, to April 20, 1991.  As such, the Veteran may be able to establish her service connection claims on the basis of a qualifying chronic disability under 38 C.F.R. § 3.317, but she has not been provided appropriate notice of how to establish a claim on this basis.  Thus, on remand, VA must provide the Veteran with notice of the evidence needed establish service connection, under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

The Veteran was issued an April 2010 rating decision, denying ratings in excess of 20 percent for right and left knee disabilities.  The Veteran filed a timely Notice of Disagreement to the denial of this claim.  The claims are listed as issue 6 and 7 on the Title Page above.  However, the AOJ has not responded to this Notice of Disagreement with a Statement of the Case addressing the issues.  The Board finds that a Statement of the Case must be issued on remand.  Manlincon v. West, 12 Vet. App. 238 (1999).   

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with appropriate notice of the evidence and information needed to establish service connection headache, menstruation, obesity, and bilateral foot disabilities, including as a qualifying chronic disability under 38 C.F.R. § 3.317 and as secondary to respectively service-connected disabilities.  The provided notice should outline VA's and the Veteran's respective obligations to provide evidence and information to support the claim.  The Veteran should be provided an appropriate amount of time to respond to this notification and this notice should be associated with the claims folder. 

2.  Request the Veteran identify all sources of private treatment, evaluation, or hospitalization for headache, menstruation, obesity, and bilateral foot disabilities, since separation.  Then undertake all appropriate efforts to obtain any identified records.  All development efforts should be associated with the claims folder. 

3.  After receipt of all additional records, schedule the Veteran for appropriate VA examinations related to the respectively claimed headache, menstruation, obesity, and foot disabilities.  The claims file (i.e., the paper claims file and any medical records being maintained, instead, electronically in Virtual VA, VBMS, CAPRI, and AMIE), as well as a complete copy of this remand, must be reviewed by the respective examiners for the pertinent history.  If the examiner does not have access to Virtual VA and VBMS, any relevant treatment records contained in these electronic portions of the claims file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review and consideration.  

The respective examiners should note all headache, menstruation, obesity, and foot found to be present, if any. Further, the examiner must explicitly state whether the Veteran's symptoms are attributable to a known clinical diagnosis.  

With regard to any diagnosed condition, the examiner should state the likelihood that the condition: 

(i) had its onset in service or within one year of separation; 

(ii) is related to any period of military service; 

(iii) was caused by any service-connected disability(ies); and

(iv) is at least in part aggravated by any service-connected disability(ies).

The provided examination report must reflect consideration of both the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions.  All tests deemed necessary by the examiner must be performed.

If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training).

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's respective claimed headache, menstruation, obesity, and foot service connection claims should be readjudicated, including as a qualifying chronic disability under 38 C.F.R. § 3.317, based on the entirety of the evidence.   If any claim remains denied, the Veteran and her representative e should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

5.  Issue a Statement of the Case addressing entitlement to ratings in excess of 20 percent for right and left knee disabilities.  The denial was contained in an April 2010 rating decision; however, as detailed above the matter remained open and pending from the May 2008 rating action.  Notify the Veteran and her representative of her appellate rights and that he must file a timely Substantive Appeal (on VA Form 9) if she desires to perfect the appeal of the claims.

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).

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).



______________________________________________

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs