Citation Nr: 1605068 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 13-16 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether there is new and material evidence to reopen a claim of service connection for posttraumatic stress disorder (PTSD). 2. Whether there is new and material evidence to reopen a claim of service connection for dysthymic disorder. 3. Entitlement service connection for a psychiatric disability, to include schizophrenia and psychosis (excluding PTSD and dysthymic disorder). 4. Whether there is new and material evidence to reopen a claim of service connection for headaches. 5. Entitlement service connection for a seizure disorder. 6. Whether there is new and material evidence to reopen a claim of service connection for a lumbar spine disability. 7. Whether there is new and material evidence to reopen a claim of service connection for a cervical spine disability. 8. Whether there is new and material evidence to reopen a claim of service connection for a shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Little Rock, Arkansas. The Veteran testified before the undersigned at an August 2014 Board hearing. A transcript of the hearing is in the file and has been reviewed. The issues of whether there is new and material evidence to reopen a claim of service connection for tension headaches, as well as claims of service connection for a seizure disorder, and a cervical spine disability and shoulder disability 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 November 2008 decision, the Board denied a claim of service connection for PTSD; the Veteran did not appeal that decision and it is final. 2. Evidence received since the November 2008 Board decision raises a reasonable possibility of substantiating the claim of service connection for PTSD. 3. In a May 2002 decision, the AOJ denied a claim of service connection for dysthymic disorder; an appeal from that decision was withdrawn and it became final. 4. Evidence received since the May 2002 AOJ rating raises a reasonable possibility of substantiating the claim of service connection for dysthymic disorder. 5. Resolving doubt in favor of the Veteran, a psychiatric disability is related to service. 6. In a May 2002 rating, the AOJ denied a claim of service connection for a lumbar spine disability; the Veteran appealed the claim but then withdrew it in July 2005 and it became final. 7. Evidence received since the May 2002 AOJ rating does not raise a reasonable possibility of substantiating the claim of service connection for a lumbar spine disability. 8. In a May 2002 rating, the AOJ denied a new and material evidence claim for a cervical spine disability; the Veteran appealed the claim but then withdrew it in July 2005 and the May 2002 rating became final. 9. Evidence received since the May 2002 AOJ rating raises a reasonable possibility of substantiating the claim of service connection for a cervical spine disability. 10. In a May 2002 rating, the AOJ denied a new and material evidence claim for a shoulder disability; the Veteran appealed the claim but then withdrew it in July 2005 and the May 2002 rating became final. 11. Evidence received since the May 2002 AOJ rating raises a reasonable possibility of substantiating the claim of service connection for a shoulder disability. CONCLUSIONS OF LAW 1. The November 2008 Board decision that denied a claim for service connection for PTSD is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2007). 2. Evidence received since the November 2008 decision denying service connection for PTSD is new and material and the claim is reopened. 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The May 2002 AOJ decision that denied a claim of service connection for dysthymia final. 38 U.S.C.A. § 7105(c) (West 2000); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2001). 4. Evidence received since the May 2002 AOJ decision denying claim of service connection for dysthymia is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 5. The criteria for establishing service connection for a psychiatric disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 6. The May 2002 AOJ decision that denied a claim of service connection for a lumbar spine disability final. 38 U.S.C.A. § 7105(c) (West 2000); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2001). 7. Evidence received since the May 2002 AOJ decision denying a claim of service connection for a lumbar spine disability is not new and material; the claim is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 8. The May 2002 AOJ decision that denied a claim of service connection for a cervical spine disability final. 38 U.S.C.A. § 7105(c) (West 2000); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2001). 9. Evidence received since the May 2002 AOJ decision denying claim of service connection for a cervical spine disability is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 10. The May 2002 AOJ decision that denied a claim of service connection for a shoulder disability final. 38 U.S.C.A. § 7105(c) (West 2000); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2001). 11. Evidence received since the May 2002 AOJ decision denying claim of service connection for a shoulder disability is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA In this decision, the Board grants entitlement to service connection for a psychiatric disability. As this represents a complete grant of that benefit sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014), is necessary. In a July 2009 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that the RO complied with Kent v. Nicholson, 20 Vet. App. 1 (2006); rev'd on other grounds by Walker v. Shinseki, 708 F.3d 1331, Footnote 3 (Fed.Cir. 2013). In Kent, the United States Court of Appeals for Veterans Claims (Court) noted that a veteran must be apprised as to the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence. Kent further requires that the notice inform a veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. The Board finds these requirements were fulfilled in the July 2009 letter even though the RO cited to wrong decision (a June 1994 instead of the May 2002 prior final denial), but it doesn't matter because the underlying reason for both prior decisions was the same: the evidence did not show that there was a chronic back disability that was related to service. He was also given the definitions of new and material evidence in the July 2009 letter. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2015). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). Relevant service treatment and other medical records, to include Social Security Administration (SSA records) have been associated with the claims file. The duties to notify and to assist have been met. A new etiological opinion has not been obtained for the Veteran's new and material evidence claim regarding the lumbar spine (he did have an examination prior to the initial denial of service connection in February 1994). In the present case, a new VA examination is not warranted as the Board has found that new and material evidence has not been presented to reopen the claim. 38 C.F.R. § 3.159(c)(4) (2015). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the August 2014 Board hearing shows the Veteran gave information regarding his claims and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran, who is represented and was represented at the hearing, has not raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Dingess/Hartman, 19 Vet. App. at 486; and Shinseki v. Sanders, 556 U.S. 396 (2009). New and Material Evidence A claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104(b) (West 2014). An exception to this rule is 38 U.S.C.A. § 5108 (West 2014), 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 new claim. New evidence is defined as existing evidence not previously received by agency decision makers. 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) (2015). Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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 Court has held that the Board's analysis of the issue of reopening must first be confined to the subject of existence of new and material evidence alone and not based on whether it would lead to a grant of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the claim was denied originally because there was no present disability and the evidence received to reopen the claim showed the veteran currently had the present disability. The Court held the claim was to be reopened because new and material evidence was received even though there was still no nexus opinion of record. Id. PTSD and Dysthymic Disorder The procedural history of the new and material evidence claims of service connection for PTSD and dysthymic disorder dates to November 1993 when the Veteran filed a claim of service connection for major depression. In December 1993, service treatment records were received. In June 1994, the RO denied a claim of service connection for dysthymia (the disability diagnosed upon VA examination in February 1994). In July 1995, the Veteran's representative requested reconsideration, but this was over a year after the in RO decision. In July 1995, the RO found there was no new and material evidence to reopen a claim of service connection for dysthymia. In October 1995, the RO repeated this decision and the Veteran filed a formal appeal in November 1995. A March 1998 Board decision shows no new and material evidence was found to reopen a claim of service connection for dysthymia. In May 1999, the Veteran filed a claim to "reopen," stating he was fired upon in the Demilitarized Zone (DMZ) in Korea. In April 2000, a Personnel Information Exchange System (PIES) response shows that service personnel records were received by the RO; however, these records did not reflect any psychiatric issues. In April 2000, the RO denied a claim of service connection for PTSD. In May 2002, the RO denied the claim of service connection for PTSD and found no new and material evidence to reopen the claim of service connection for dysthymia. The Veteran filed notice of disagreement (NOD) and proper appeal, but at the July 2005 Board hearing withdrew all claims on the record except for a claim of service connection for PTSD. (July 2005 Board Hearing Transcript, p 2.) The Board initially remanded the claim of service connection for PTSD in October 2005 and denied the claim in November 2008. In February 2009, the Veteran filed a claim to reopen the claim of service connection for PTSD, as well as service connection for psychosis and depression. In April 2009, the RO found that there was no new and material evidence to reopen the claims of service connection for "dysthymic disorder now claimed as depression" and PTSD. The claim of service connection for "paranoid schizophrenia (claimed as psychosis)" was also denied. The Veteran filed a notice of disagreement with this decision and the current appeal ensued. As previously stated, while service personnel records were not received until April 2000, they were not relevant to any psychiatric-related service connection claim because they did not add anything of substance. See 38 C.F.R. § 3.156(c). As a result, the claim addressing dysthymic disorder must still meet the requirements under 38 C.F.R. § 3.1569(a) for the claim to be reopened. At the time of the last prior final denial for dysthymia in May 2002, the evidence consisted of: the Veteran's claim/statements, service treatment records, 1993 VA discharge records (received January 1994) showing a diagnosis of a somatoform disorder, a February 1994 VA psychiatric examination diagnosing dysthymic disorder, the 1998 Board denial, 1999 VA records regarding in-patient psychiatric treatment (to include a positive nexus opinion from a treating VA psychiatrist regarding the Veteran's general psychiatric condition) and other VA records. Since the last prior final denial for dysthymia, the evidence now includes: further claims and statements from the Veteran; a May 2003 VA psychiatry record noting that cognitive symptoms did not easily fit into the Diagnostic and Statistical Manual IV (DSM-IV) categories; the July 2005 Board hearing transcript; the November 2008 Board denial of service connection for PTSD; a March 2011 VA RN note first relating the Veteran's psychiatric problems to PTSD and then stating it might be worthwhile to have neuropsychological testing done to establish a baseline of psychiatric disability and to "clarify diagnosis;" and the August 2014 Board hearing transcript. Since the file now reflects the May 2003 and March 2011 VA clinician's explanations regarding the Veteran's mental health (the credibility of which presumed under Justus, 3 Vet. App. at 512-513), the claim of service connection for dysthymia is reopened. Shade, 24 Vet. App. 110. The Board also notes a plethora of further mental health diagnoses since the 1994 VA examination report and 1999 attending psychiatrist opinions were rendered. The evidence relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. The evidence is considered both new and material. Similarly, at the time of the last prior final denial for PTSD, the evidence consisted of evidence noted above, as well as several stressor statements. Since the last prior final denial for PTSD, the evidence (referenced above) now includes the March 2011 VA RN note which raises questions about the reliability of past diagnoses. Since the file now reflects a new opinion boosting the credibility of the 1999 opinion and neuropsychological testing (the credibility of which presumed under Justus, 3 Vet. App. at 512-513), the claim of service connection for PTSD is reopened. Shade, 24 Vet. App. 110. The evidence relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. The evidence is considered both new and material. It is important to note that at the time of the November 2008 Board decision, Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) had not yet been decided. In Clemons, the United States Court of Appeals for Veterans Claims (Court) held that a claim for service connection for PTSD was not limited to an adjudication of PTSD alone in light of other diagnoses of mental illness in the record. In other words, the Court decided that when a veteran has filed a claim for a specific psychiatric disability but the record shows other psychiatric diagnoses, VA must adjudicate whether any and all diagnosed psychiatric disabilities are related to his service. Had that decision been in place, these two issues may have been decided together instead of separately at different times. Lumbar Spine Disability A review of the procedural history of this claim shows that service connection for a lumbar spine disability was originally denied in June 1994. In May 2002, the AOJ continued the previous denial of a back disability, explaining that there was a diagnosis of lumbar strain but there was no link between it and service. The Veteran appealed this decision, but then withdrew it on the record at a Board hearing. (July 2005 Board Hearing Transcript, p 2.) In December 2009, the AOJ again found no new and material evidence had been submitted and this appeal followed. At the time of the last prior final denial, the evidence consisted of service treatment records which showed muscle spasm due to carrying a heavy load after a road march (see September 1983 service treatment record) and continuing pain (see June 1984 screening note. At separation, the September RMH physician's summary noted low back pain but a Report of Medical Examination (RME) clinical evaluation was normal. In September 1993 the Veteran was diagnosed with a somatoform disorder after being admitted for evaluation of whole body pain. He had work ups at different VA hospitals with negative results. In February 1994, he received a VA examination where he complained of a lumbar spine problem, but pointed to his left trapezius. He stated his symptoms began in 1982 when carrying a 75 pound ruck sack. He was given bed rest. He had no treatment after discharge in1988. X-rays of the lumbar spine were noted to be negative or normal. The impression was history of low back pain and no clinical evidence of residual impairment in the lumbar spine area. The examiner stated that because there was no objective residual impairment that no current problems were related to his original complaints. A separate examination found no neurological deficits. A January 1995 VA primary care record showed degenerative joint disease was noted generally as did a May to June 1999 VA discharge summary. In a March 2002 VA spine examination the Veteran again reported problems with his spine since completing a road march in service in 1983. Examination revealed some decreased motion of the lumbar spine. The diagnosis was residuals of lumbar strain. An X-ray showed mild degenerative changes and an increased lucency in places for which follow up was recommended. Since the last prior final denial, the evidence now includes a May 2003 X-ray showing a normal lumbar spine, as well as the August 2014 Board hearing transcript where the Veteran stated he went on marches and was very sore. (p 8) He asserted he was put on bedrest for a week, and then he went back to duty. Id. The more manual labor he would do, the worse his back would feel. (p 9.) The Board does not find that new and material evidence is present in the file; a nexus opinion is still lacking regarding the relationship between arthritis or mild degenerative changes or residuals of lumbar strain and service. Moreover, his statements regarding in-service pain and continuous symptoms are redundant of statements that were already of record at the time of the last final denial, to include statements made at his VA examinations in 1994 and 2002. Since the file now reflects no new evidence, the claim is not reopened. Shade, 24 Vet. App. 110. There is no new evidence relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. The evidence is not new and material, reasonable doubt does not arise and the claim is denied. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). Cervical Spine and Shoulder Disability A cervical spine and shoulder disability was originally denied in June 1994 and again in May 2002. The Veteran appealed this latter decision, but then withdrew his appeal on the record at a Board hearing. (July 2005 Board Hearing Transcript, p 2.) In December 2009, the AOJ again found no new and material evidence had been submitted and this appeal followed. At the time of the last prior final denial, the evidence consisted of service treatment records, the Veteran claim/statements and a February 1994 VA orthopedic examination report which showed an impression of no clinical evidence of residual impairment in the cervical spine area. A separate neurological examination found no deficits. Since the last prior final denial, the evidence now includes a May 2005 VA primary care record showing an assessment of musculoskeletal pain in the left shoulder as well as 2015 records showing February VA contract treatment for stenosis of the cervical spine and an April request for outpatient diagnosis of spondylitic cervical myelopathy. Since the file now reflects a diagnosis of a cervical spine disability (the credibility of which presumed under Justus, 3 Vet. App. at 512-513), the claim is reopened. Shade, 24 Vet. App. 110. As this diagnosis could impact the upper extremities, the claim of service connection for a shoulder disability is also reopened. The evidence relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claims. The evidence is considered both new and material. Service Connection for a Psychiatric Disability (PTSD, Dysthymic Disorder, Schizophrenia and Psychosis) A psychiatric disability has been established, although there has been some disagreement as to its nature. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran was initially diagnosed with a somatoform disorder in September 1993 (see VA discharge summary), then with dysthymia in February 1994 (see VA examination report) and in November 1999, the Veteran's treating psychiatrist for several hospital admissions stated: "The patient clearly has suffered from psychiatric disturbance since the time of his active military service in Korea based on the patient's report and reports from the patient's family." The psychiatrist noted the past assessment of a somatic condition, but thoroughly addressed his history and current condition. The etiology was unclear, but the psychiatrist was adamant that the Veteran was disabled due to psychiatric illness that started in the military with psychotic symptoms. The inability to secure a stable a psychiatric diagnosis repeated itself for years, as shown by the Veteran's medical records. (See, for example, April 2000 VA psychiatrist record stating the following was to be ruled out: depression secondary to general medical condition; thyroid/other disorder; depression; schizoaffective disorder; substance induced depression; adjustment disorder with depressed mood; and bipolar disorder.) Different reasons for the variation in diagnosis have been offered; for example, a March 2001 VA psychiatry record shows the Veteran was a poor historian and often evasive, while a Mary 2003 VA psychiatry record offered a long explanation for why the Veteran's case was complex and that his cognitive symptoms did not easily fit into DSM-IV categories while diagnosing of major depression, recurrent severe, with psychotic features. Further complicating the matter, as his treating VA physician wrote to SSA in June 2003, the depression and psychosis have not responded favorably to medications. Finally, after over ten years of VA psychiatry treatment, a VA RN in March 2011 stated that while she believed that the Veteran had PTSD and his symptoms were a result of military trauma in Korea, he had a history of several other diagnoses and that it was worthwhile having neuropsychological testing done to establish a baseline of psychiatric disability and to "clarify diagnosis." The Veteran went through neuropsychological testing in July 1999 and at that time was "a function disorder or an unclear specific diagnosis." The Board has little confidence that further testing and/or evaluation will clarify the matter. The Veteran has provided (and the file also corroborates) competent and credible evidence of in-service incurrence of psychiatric symptoms. (See November 1984 service treatment record showing an assessment of "stress response" as well as the September 1985 Report of Medical History showing reports of frequent trouble sleeping, depression/excessive worry, loss of memory/amnesia, nervous trouble and periods of unconsciousness.) An in-service injury is demonstrated. Shedden, 381 F.3d at 1167. After reviewing the psychiatric records, the Board finds the exact diagnosis has been elusive. The Board concludes it is more efficacious to simply grant the claims then seek further opinion on the matter. While a specific psychiatric diagnosis has varied in terminology, what is consistent is that underlying psychiatric symptoms have always been present since service. Resolving doubt in favor of the Veteran, it is at least as likely as not that the current psychiatric disability is related to service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received to substantiate the claim of service connection for PTSD, the petition to reopen the claim is granted. New and material evidence having been received to substantiate the claim of service connection for dysthymic disorder, the petition to reopen the claim is granted. Service connection for a psychiatric disability is granted. New and material evidence has not been received to substantiate the claim of service connection for a lumbar spine disability, the petition to reopen the claim is denied. New and material evidence having been received to substantiate the claim of service connection for a cervical spine disability, the petition to reopen the claim is granted. New and material evidence having been received to substantiate the claim of service connection for a shoulder disability the petition to reopen the claim is granted. REMAND Regarding headaches, a claim of service connection was initially denied in July 1995 and again in October of that year. In March 1998 the Board denied the claim of service connection for headaches. In May 2002, no new and material evidence was found to reopen the claim; while the Veteran had a current diagnosis, there was no nexus to service. This decision became final when the Veteran withdrew the issue on appeal on the record at a July 2005 Board hearing. (July 2005 Board Hearing Transcript, p 2.) A remand is warranted for Kent notice as the AOJ cited to wrong decision in the July 2009 notice letter. 20 Vet. App. 1. The letter cites to the July 1995 rating, which was the initial denial, not the last prior final denial. The last prior final denial was in May 2002. Also, the July 2009 letter stated the Veteran only had to show a current diagnosis (which he attempted to do at the August 2014 Board Hearing Transcript, p 3); this information is incorrect because the Veteran instead needed a nexus between his current headaches and service (see May 2002 rating decision). Proper notice under Kent must be provided. Id. Regarding the claim of service connection for seizures, the symptoms of dizziness, loss of consciousness and memory were noted on the September 1985 RMH, although a clinical evaluation was normal (see RME). Several records reference a possible seizure disability, although some diagnostic testing was negative. (See September 1993 VA discharge, December 1998 VA neurology clinic record, July 999 VA neuropsychologist report, August 1999 VA discharge summary, and June 2003 statement from the Veteran's treating VA physician to SSA.) Finally, there is indication in the file that the Veteran recently underwent surgery for his cervical spine. On remand, the records from the surgery (which took place at a facility that contracted with VA) should be associated with the file. Then the Veteran should receive a VA examination to provide the nature and etiology of the cervical spine disability and any related shoulder disability. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) that complies with Kent: ( * notifies the Veteran of the reason for the previous denial in May 2002 (no showing of a nexus to service); * notifies the Veteran of the evidence and information necessary to reopen the claim (showing a nexus to service); and * notifies the Veteran of what specific evidence would be required to substantiate the elements needed to grant the Veteran's service connection claim (i.e., evidence that the Veteran's current headache disability is related to service). 2. Associate all records regarding the Veteran's 2015 cervical spine surgery with the file. A negative response is requested and should be placed in the file and the Veteran should be informed if VA is unable to obtain records. 38 C.F.R. § 3.159(e)(1). 3. After the above development is completed, schedule the appellant for an examination with a VA examiner who is qualified to determine the nature and etiology of any diagnosed cervical spine and shoulder disability. A copy of this remand and the claims file should be provided to the examiner in conjunction with the examination. After examination, the examiner should review the entire file, to include the following: * February 1994 VA orthopedic examination; * May 2005 VA primary care record addressing pain in left arm and shoulder; and * 2015 records referencing cervical spine surgery. After reviewing the relevant records mentioned above and performing an examination, the examiner should answer the following questions: * Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed shoulder disability was incurred in or related to service? * Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed cervical spine disability was incurred in or related to service? o If so, is it at least as likely as not that any shoulder disability was caused or aggravated by the cervical spine disability? A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. After the above development is completed, schedule the appellant for an examination with a VA examiner who is qualified to determine the nature and etiology of any diagnosed seizure disability. A copy of this remand and the claims file should be provided to the examiner in conjunction with the examination. After examination, the examiner should review the entire file, to include the evidence referenced above in the body of the remand. The examiner should answer the following questions: * Does the Veteran have a seizure disorder? * If so, is it at least as likely as not (a 50 percent or greater probability) that any diagnosed seizure disorder was incurred in or related to service? A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. Readjudicate the claims. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental statement of the case and given an opportunity to respond. 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 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs