Citation Nr: 0724944	
Decision Date: 08/10/07    Archive Date: 08/20/07

DOCKET NO.  04-35 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received to reopen 
the claim of entitlement to service connection for migraine 
headaches.  


REPRESENTATION

Appellant represented by:	Darla J. Lilley, Attorney at 
Law


ATTORNEY FOR THE BOARD

Michael A. Pappas, Counsel






INTRODUCTION

The veteran had active duty from January 1954 to January 
1956.

When the veteran's claims were last before the Board of 
Veterans' Appeals (Board) in August 2006, they included the 
issues of whether new and material evidence has been received 
to reopen the claim for service connection for degenerative 
joint disease of the lumbosacral spine with L5 spondylosis, 
and whether new and material evidence has been received to 
reopen the claim of entitlement to service connection for 
migraine headaches.  These issues were remanded to the 
Department of Veterans Affairs (VA), St. Petersburg, Florida, 
Regional Office (RO) for additional development.  

Following the completion of the requested development, a 
February 2007 rating decision granted service connection for 
degenerative joint disease of the lumbosacral spine with 
coccygodynia, with deformity, and assigned a 20 percent 
rating, effective from September 3, 2003.  The issue is 
therefore no longer before the Board for appellate review.  

A February 2007, supplemental statement of the case 
determined that the requisite new and material evidence had 
been received to reopen the claim of entitlement to service 
connection for migraine headaches, but continued the denial 
of the underlying issue of entitlement to service connection 
on the merits.  The case was subsequently returned to the 
Board.  Although the RO has reopened the claim of entitlement 
to service connection for migraine headaches, the Board 
remains obliged to review the issue of whether the requisite 
new and material evidence has been received, in the first 
instance.  

Given the favorable disposition of the issue of whether new 
and material evidence has been received to reopen the claim 
of entitlement to service connection for migraine headaches, 
the issue will be REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, D.C. for additional 
development and de novo review.  

FINDINGS OF FACT

1.  In August 1999, the Board denied the veteran's claim of 
entitlement to service connection for migraines headaches, 
finding that no competent medical evidence had been presented 
to establish that a causal relationship exists between the 
veteran's migraine headaches and his active service.  In an 
August 2001 rating decision, the RO determined that the 
requisite new and material evidence had not been received to 
reopen the veteran's previously denied claim for entitlement 
to service connection for migraine headaches.  The veteran 
was notified of the adverse determinations and of his 
procedural and appellate rights, but did not appeal the 
foregoing Board decision or subsequent rating decision.

2.  The additional evidence presented since the August 2001 
rating decision is new, and when considered with previous 
evidence relates to an unestablished fact necessary to 
substantiate the claim of entitlement to service connection 
for migraine headaches and raises a reasonable possibility of 
substantiating the claim of entitlement to service connection 
for migraine headaches.


CONCLUSION OF LAW

As new and material evidence has been received, the August 
2001 rating decision denying the reopening of the claim of 
entitlement to service connection for migraine headaches may 
now be reopened.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.104, 3.156 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

In light of the favorable action taken herein, discussion of 
whether VA has met its duties of notification and assistance 
is not required, and deciding the appeal at this time is not 
prejudicial to the veteran. 

When this claim is addressed by the RO on a de novo basis, 
there must be compliance with the statutory, regulatory, and 
judicial requirements of notification and assistance.  

New & Material Evidence Analysis

In August 1999, the Board denied the veteran's claim of 
entitlement to service connection for migraines headaches, 
finding that no competent medical evidence had been presented 
to establish that a causal relationship exists between the 
veteran's migraine headaches and his active service.  In an 
August 2001 rating decision, the RO determined that the 
requisite new and material evidence had not been received to 
reopen the veteran's previously denied claim for entitlement 
to service connection for migraine headaches.  The veteran 
was notified of the adverse determinations and of his 
procedural and appellate rights, but did not appeal the 
foregoing Board decision or subsequent rating decision.

The evidence considered by the Board in 1999 consisted of 
service medical records to include a separation examination 
in January 1956, that were negative for complaints, 
treatment, or diagnosis of migraine headaches and post-
service medical records beginning within one year from 
separation from service that showed that there was no medical 
documentation of headaches until January 1977, and showed 
further the initial diagnosis of migraine headaches in 
January 1994.  The basis for the denial was that no competent 
medical evidence had been presented to establish that a 
causal relationship exists between the veteran's migraine 
headaches and his active service.  

The new evidence considered by the RO in the August 2001 
rating decision, consisted of VA Medical Center (VAMC) 
treatment records documenting two instances of treatment for 
migraine headaches.  The basis for the denial was that the 
new evidence was cumulative and redundant because the prior 
evidence had already established that the veteran has 
migraine headaches.  The veteran was provided notice of that 
decision in August 2001 but did not submit a notice of 
disagreement within one year of that notice.  

An application, formal or informal, which has been allowed or 
disallowed by the agency of original jurisdiction, becomes 
final by the expiration of one year after the date of notice 
of an award or disallowance, or by denial on appellate 
review, whichever is the earlier.  38 C.F.R. § 3.160(d).

An RO determination as to whether evidence is "new and 
material" for purposes of reopening is subject to de novo 
adjudication by the Board.  Barnett v. Brown, 83 F.3d 1380, 
1383 (Fed. Cir. 1996).

In order to reopen a claim there must be added to the record 
"new and material evidence."  38 U.S.C.A. § 5108.  

The credibility of the evidence is presumed for the purpose 
of reopening.  Justus v. Principi, 3 Vet. App. 510 (1992).  

Under 38 C.F.R. § 3.156(a), as amended, 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 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) (2006).

In September 2003, the current claim to reopen was received 
at the RO.

The prior denials of the claim had been essentially based 
upon the finding that there was no evidence submitted that 
the claimed migraine headaches were related in any way to 
service.  Accordingly, for evidence to be new and material in 
this matter, it would have to tend to show that current 
migraine headaches are linked to an in-service injury or 
disease.

The additional evidence received since the rating decision of 
August 2001 includes medical treatises from the Saint Louis 
University Health Sciences Center, Division of Behavioral 
Medicine, dated in May 1994, revealing the potential for 
"the high prevalence of migraine [headaches] following low 
back pain . . ..", and from the Back Clinic, Ringe, Denmark, 
dated in May 2003, revealing a positive association between 
low back pain and other physical disorders, including 
migraine headaches.  

Assuming its credibility, this evidence received since the 
August 2001 denial is neither cumulative nor redundant, and 
by itself, and in particular when viewed in connection with 
previous evidence of record (namely the existence of a 
service-connected low back disorder), relates to an 
unestablished fact necessary to substantiate the claim and 
raises a reasonable possibility of substantiating the claim 
of entitlement to service connection for migraine headaches.  

The Board finds that the noted evidence received subsequent 
to the RO's August 2001 rating decision denial is new and 
material as it provides medical evidence that current 
migraine headaches are related to the veteran's service, on 
the basis of their potential secondary relationship to a 
service-connected disability.  As a result, the requirements 
to reopen the claim of entitlement to service connection for 
migraine headaches have been met.  Accordingly, the veteran's 
claim is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156, 
3.159, 3.304.


ORDER

There having been received the requisite new and material 
evidence to reopen a claim of entitlement to service 
connection for migraine headaches, the appeal is granted to 
this extent only.


REMAND

Having reopened the appellant's claim of entitlement to 
service connection for migraine headaches, it is incumbent 
upon the RO to readjudicate that claim on a de novo basis 
with consideration of all of the evidence, both new and old.  

VA's duty to assist the claimant while developing his claims, 
pursuant to 38 U.S.C.A. § 5103A, includes obtaining a medical 
opinion whenever such an opinion is necessary to make a 
decision on the claim.  See 38 U.S.C.A. § 5103A(d).  
38 C.F.R. § 4.1 (2006) provides further that "It 
is...essential both in the examination and in the evaluation 
of the disability, that each disability be viewed in relation 
to its history.")  See also Green v. Derwinski, 1 Vet. App. 
121, 124 (1991).  ("[F]ulfillment of the statutory duty to 
assist  . . . includes the conduct of a thorough and 
contemporaneous medical examination, one which takes into 
account the records of prior medical treatment, so that the 
evaluation of the claimed disability will be a fully informed 
one.").  Consequently, the necessity for an appropriate 
examination is shown for the proper assessment of the 
veteran's claim.  38 U.S.C.A. § 5103A.

Accordingly, this case is REMANDED for the following:

1.  The claims file must be reviewed to 
ensure that all notice obligations have 
been satisfied with respect to the claim 
of entitlement to service connection for 
migraine headaches in accordance with 
38 U.S.C.A. §§ 5102, 5103, and 5103A 
(West 2002 & Supp. 2006).  At the very 
least, the veteran must be provided 
notice under 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b), that includes an 
explanation as to the information or 
evidence needed to substantiate his claim 
for service connection, and establish a 
disability rating and effective date for 
the claim on appeal, as outlined by the 
Court in Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006)

The appellant should be advised that he 
is to submit all relevant evidence in his 
possession.  38 U.S.C.A. § 5103(a) and 
(b) (West 2002); Quartuccio v. Principi, 
16 Vet. App. 183 (2002).  

2.  Schedule the veteran for a VA 
examination by a physician skilled in the 
diagnosis and treatment for migraine 
headaches to determine whether the 
veteran has current migraine headaches 
and, if found, whether they bear any 
relationship to service, including the 
veteran's service-connected lumbar spine 
disability.  The claims file must be made 
available to and pertinent documents 
therein reviewed by the examiner in 
connection with the examination.  The 
examiner must annotate the examination 
report that the claims file was in fact 
made available for review and reviewed in 
conjunction with the examination.  Any 
further indicated special tests and 
studies should be conducted.

The examiner must address the 
following medical question:
Is it at least as likely as not that 
any migraine headaches disability 
found is related by etiology to 
service on any basis, including 
specifically as secondary to the 
veteran's service-connected lumbar 
spine disability?  The examiner should 
provide a complete rationale for any 
opinion expressed.  

3.  Thereafter, the claims file should be 
reviewed to ensure that all of the 
foregoing requested development has been 
completed.  

4.  After undertaking any development 
deemed essential in addition to that 
specified above, readjudicate the issue 
of entitlement to service connection for 
migraine headaches on a de novo basis.  

The appellant has the right to submit additional evidence and 
argument on the matter remanded.  Kutscherousky v. West, 12 
Vet. App. 369 (1999).

If the benefit requested on appeal is not granted to the 
appellant's satisfaction, issue a supplemental statement of 
the case (SSOC).  The SSOC must contain notice of all 
relevant actions taken on the claim for benefits, to include 
a summary of the evidence and applicable law and regulations 
pertinent to the claim currently on appeal.  A reasonable 
period of time for a response should be afforded.  

Thereafter, the case should be returned to the Board for 
final appellate review, if in order.  By this remand, the 
Board intimates no opinion as to any final outcome warranted.  
No action is required of the appellant until he is notified 
by VA; however, the veteran is hereby notified that failure 
to report for any scheduled VA examination(s) without good 
cause shown may adversely affect the outcome of his claim, 
and may result in a denial.  38 C.F.R. § 3.655 (2006).

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 Supp. 2006).






____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs