Citation Nr: 18147853 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-38 365 DATE: November 6, 2018 ORDER New and material evidence having been received, reopening of the claim for service connection for a lumbar spine condition, is granted. New and material evidence having been received, reopening of the claim for service connection for a right knee condition, is granted. New and material evidence having been received, reopening of the claim for service connection for headaches, is granted. Service connection for headaches is granted. REMANDED Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for a right knee condition is remanded. FINDINGS OF FACT 1. An unappealed January 2008 rating decision that denied service connection for a lumbar spine condition, service connection for a right knee condition, and service connection for headaches, is final. 2. Some of the evidence received since the unappealed January 2008 rating decision relates to unestablished facts necessary to substantiate the claims for service connection for a lumbar spine condition, service connection for a right knee condition, and service connection for headaches. 3. The record reflects that the Veteran’s headaches are etiologically related to his active service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and thus, the criteria for reopening the claim for service connection for a lumbar spine condition have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been submitted, and thus, the criteria for reopening the claim for service connection for a right knee condition have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. New and material evidence has been submitted, and thus, the criteria for reopening the claim for service connection for headaches have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. The criteria for service connection for headaches have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to September 1976. 1. Whether new and material evidence has been received to reopen claims for service connection for a lumbar spine condition, service connection for a right knee condition, and service connection for headaches The Veteran’s claims for service connection for a lumbar spine condition, right knee condition, and headaches were initially denied in a January 2008 rating decision. The Veteran was notified of the decision in a January 2008 letter, but did not appeal or submit relevant evidence within one year. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the January 2008 denial, new evidence in the form of articles and lay statements has been associated with the claims file. Turning first to the issues of service connection for a lumbar spine condition and a right knee condition, evidence added to the record since January 2008 includes articles noting that repetitious and strenuous activity during military service can cause/lead to osteoarthritis, as well as contentions by the Veteran’s representative that the Veteran’s military occupational specialty (MOS) as Boatswain required strenuous and repetitious activity. As the foregoing evidence suggests a nexus between the Veteran's claimed lumbar spine and right knee disabilities, it relates to an unestablished fact that is necessary to substantiate the Veteran's claims. Thus, new and material evidence has been received, and the claims for service connection for a lumbar spine condition and service connection for a right knee condition are reopened. Turning to the claim for service connection for headaches, evidence added to the record since January 2008 includes lay statements from the Veteran attesting to, and explaining that, the headache symptoms documented in his STRs are a continuation of the symptoms he currently experiences. The Veteran is competent to report symptoms of headaches and he is presumed credible. As the foregoing evidence suggests a nexus between the Veteran’s headaches and service, it relates to an unestablished fact that is necessary to substantiate the Veteran's claim. Thus, new and material evidence has been received, and the claim for service connection for headaches is reopened. 2. Entitlement to service connection for headaches Generally, establishing service connection requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. 38 C.F.R. § 3.303. Here, a current disability is confirmed by the evidence of record. Specifically, Veteran has been diagnosed with recurrent headaches and history of syncope. Next, in addressing in service incurrence, the Board first notes that, as a layperson, the Veteran is competent to describe and identify a headache. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (stating that a veteran is competent to report on all things of which he has personal knowledge derived from his own senses). The Veteran stated in a September 2015 VA 21-4138 Statement in Support of the Claim that he has experienced continuous headache symptoms since service. See September 2015 VA 21-4138 Statement in Support of Claim. Moreover, the Veteran’s service treatment records reflect that he was seen for headache during service and a November 2007 VA examiner opined that the Veteran’s headaches are at least as likely as not due to in-service trauma. Given the Veteran's competent and credible statements regarding the incurrence and history of his headaches that began in service, the Board resolves doubt in his favor and herein grants service connection for headaches. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine condition The Board finds that a remand is necessary to obtain a medical opinion that considers the evidence submitted by the Veteran in support of his claim, his current diagnosis of lumbar disc degeneration, and contention regarding incurrence as the result of his duties as Boatswain. 2. Entitlement to service connection for a right knee condition Remand is also warranted to afford the Veteran an examination in regard to his claims right knee disability as he has a current diagnosis of right knee osteoarthritis, his service records reflect complaint of right knee pain, and he has contended that current disability results from his duties as Boatswain. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records dated to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment records. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his lumbar spine condition. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disabilities, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, if necessary, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran has a lumbar spine condition that had its onset in service, or within one year of his separation from service, or is otherwise related to service. In rendering this opinion, the examiner is asked to specifically address the articles submitted by the Veteran, his contention that he has a lumbar spine condition related to his service as Boatswain (strenuous and repetitious duties including, rigging, upkeep of the ship, painting, loading deck equipment and materials, etc.), and the current diagnosis of lumbar disc degeneration documented in the Veteran’s VA records. The examiner is also asked to discuss the complaint and treatment of low back pain documented in the Veteran’s STRs, including after being struck with a heavy object in the lumbar region, and the Veteran’s contention that he has a lumbar spine condition related to a head injury during service. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his right knee condition. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disabilities, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran has a right knee condition that had its onset in service, or within one year of his separation from service, or is otherwise related to service. In rendering this opinion, the examiner is asked to specifically address the articles submitted by the Veteran and his contention that he has a right knee condition related to his service as Boatswain (strenuous and repetitious duties, rigging, upkeep of the ship, painting, loading deck equipment and materials, etc.). The examiner is also asked to discuss the service records documenting treatment for right knee pain. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel