Citation Nr: 0810099 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-22 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for somatization disorder, to include as secondary to service- connected tension headaches. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for anxiety with depression as secondary to service-connected tension headaches. 3. Entitlement to service connection for a right shoulder disability as secondary to service-connected tension headaches. 4. Entitlement to service connection for somatization disorder, to include as secondary to service-connected tension headaches. 5. Entitlement to service connection for anxiety with depression as secondary to service-connected tension headaches. REPRESENTATION Veteran represented by: G. D. Keenum, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from September 1957 to September 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In August 2007, the veteran testified before the undersigned Acting Veterans Law Judge at a Board hearing at the RO, at which time he withdrew his appeal for an increased rating for tension headaches. In November 2007, the veteran submitted additional evidence along with a waiver of initial review of that evidence by the RO. The issues of entitlement to service connection for somatization disorder to include as secondary to service- connected tension headaches, entitlement to service connection for anxiety with depression as secondary to service-connected tension headaches, and entitlement to service connection for a right shoulder disability as secondary to service-connected tension headaches are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. The March 1987 Board decision, which denied the claim of entitlement to service connection for somatization disorder, is final. 2. The evidence received since that time includes evidence that is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The July 2004 rating decision, which denied the claim of entitlement to service connection for anxiety with depression, is final. 4. The evidence received since that time includes evidence that is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for somatization disorder, to include as secondary to service-connected tension headaches. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2007). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for anxiety with depression as secondary to service-connected tension headaches. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). In light of the favorable findings as to whether new and material evidence has been received to reopen the claims, no discussion of VCAA compliance with regard to Kent v. Nicholson, 20 Vet. App. 1 (2006), is necessary for these issues. II. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became 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.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine, as articulated in Evans v. Brown, 9 Vet. App. 273 (1996), was not altered by the ruling in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), and continues to be binding precedent). New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2007). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The Board has reviewed all the evidence in the veteran's claims file, which includes: his contentions, service medical records, private medical records, and VA medical records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Somatization Disorder The RO denied service connection for somatization disorder in a February 1983 rating decision. In a March 1987 decision, the Board denied service connection for the disorder. The veteran was notified of the decision later that month. Neither the veteran nor the Board requested reconsideration of the decision. Thus, the March 1987 Board decision is final. See 38 U.S.C.A. §§ 7103(a), 7104 (West 2002); 38 C.F.R. § 20.1100(a) (2007). Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, VA must review all of the evidence received since the March 1987 Board decision to determine whether the claim may be reopened. See Hickson, 12 Vet. App. at 251. The Board denied the claim because there was no evidence that the disorder had its onset in service or for many years thereafter. Thus, the evidence needed to reopen the claim is evidence that tends to show that the somatization disorder had its onset in service or within one year thereafter, is otherwise related to service or is related to service- connected tension headaches. The pertinent evidence received since that time consists of statements and testimony from the veteran asserting that his somatization disorder is secondary to his service-connected tension headaches. In this regard, the Board observes that the veteran has raised a new theory of entitlement for this claim. In addition, the Board observes that this evidence contributes "to a more complete picture of the circumstances surrounding the origin of" his disability." Hodge, 115 F.3d at 1363. Construed liberally, the Board finds that the above evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. Thus, this evidence is new and material and the claim is reopened. 38 C.F.R. § 3.156(a). To this extent only, the appeal is granted. The issue of entitlement to service connection for somatization disorder, to include as secondary to tension headaches, on the merits is addressed in the Remand section below. Anxiety with Depression Service connection for anxiety with depression was denied by the RO in a July 2004 rating decision. Although the veteran initiated an appeal with respect to the denial, in his VA Form 9, he indicated that he was only appealing another issue that had also been denied in the July 2004 rating decision. Thus, the July 2004 decision is final on this issue, and new and material evidence is needed to reopen the claim. See 38 U.S.C.A. §§ 5107, 7105; 38 C.F.R. § 3.156(a); Barnett, 83 F.3d 1380. Therefore, VA must review all of the evidence received since the July 2004 rating decision to determine whether the claim may be reopened. See Hickson, 12 Vet. App. at 251. The RO denied the claim because the evidence failed to show that the disability was related to service or service-connected tension headaches. Thus, the evidence needed to reopen the claim is evidence that tends to show that the anxiety with depression had its onset in service or within one year thereafter, is otherwise related to service or is related to service-connected tension headaches. The pertinent evidence received since that time consists of VA medical records and the veteran's testimony. An April 2005 neurology note reflects the veteran's report that his anxiety attacks are brought on by his headaches. Furthermore, a November 2006 neurology note reflects the examiner's statement that the veteran has some component of anxiety/panic attacks related to his headaches. Additionally, the veteran testified that he has the headaches first then the anxiety. The Board finds that the above evidence is new and material because it shows that the veteran's anxiety with depression may be related to his service-connected tension headaches. Thus, this evidence is sufficient to reopen his claim. 38 C.F.R. § 3.156(a). To this extent only, the appeal is granted. The issue of entitlement to service connection for anxiety with depression as secondary to service-connected tension headaches on the merits is addressed in the Remand section below. ORDER New and material evidence having been received, the claim of entitlement to service connection for somatization disorder, to include as secondary to service-connected tension headaches, is reopened. New and material evidence having been received, the claim of entitlement to service connection for anxiety with depression as secondary to service-connected tension headaches is reopened. REMAND Having reopened the veteran's claims, the Board may consider the merits of the claims only after ensuring that the veteran has received the notice and assistance contemplated by the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). As indicated above, the record does not contain any competent evidence linking the veteran's somatization disorder to his service-connected tension headaches. Additionally, although a VA treatment note suggests a link between the veteran's anxiety with depression and his service-connected tension headaches, the record is unclear as to what, if any, records that examiner reviewed in rendering his opinion. Thus, without competent and probative medical evidence addressing the possibility of any relationship between these disabilities and the service-connected tension headaches, a remand is necessary to afford the veteran a VA examination. 38 C.F.R. § 5103A (d); McClendon v. Nicholson, 20 Vet. App. 79 (2006). As for the right shoulder disability, the veteran contends that his service-connected tension headaches, specifically the dizziness associated with them, caused him to fall and injure the shoulder. Although the record shows that the veteran injured his right shoulder in a fall, the record fails to show the cause of the fall and whether that cause is related to his service- connected tension headaches. A December 2004 VA treatment note reflects that the veteran hit the right scapula area while trying to break a fall. The note also reflects that the veteran thought that he had fallen backward but was not sure. Further, an October 2000 VA ENT note reflects complaints of tinnitus and falling to the left side when ambulating for the past two years and a recommendation for an MRI to rule out a right CPA tumor and cerebellar infarcts. The record then reflects that a November 2000 MRI showed a 1-cm lesion in the right frontal lobe. Later, a September 2002 VA cardiology consult indicates that the feelings of passing out are related to panic attacks. Additionally, the record shows that the veteran had arthritis of the shoulder prior to the December 2004 injury. A December 2003 VA treatment note, entered one year prior to the injury, shows that the veteran reported a long history of osteoarthritis of the shoulders. Given the possibility that the veteran's dizziness may be related to his anxiety with depression, the Board observes that the claim for a right shoulder disability as secondary to service-connected tension headaches is inextricably intertwined with the anxiety claim being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Furthermore, the examination requested on remand should address the cause of the dizziness and whether the veteran's right shoulder disability was aggravated by the fall. Accordingly, the case is REMANDED for the following actions: 1. Schedule the veteran for a VA examination(s) by the appropriate specialists to determine the nature of his somatization disorder and anxiety with depression and to provide an opinion as to their possible relationship to service or service-connected tension headaches. The claims file must be reviewed by the examiner, and the report should state that the file has been reviewed. All indicated tests should be performed and all findings should be reported in detail. The examiner(s) should state whether dizziness is associated with the veteran's somatization disorder, anxiety with depression or service-connected tension headaches. If dizziness is related to any of the above, then the examiner should provide an opinion as to whether it is as likely as not that the right shoulder disability was caused or aggravated by the fall. The examiner(s) should also provide an opinion as to whether it is as likely as not the veteran's somatization disorder and/or anxiety with depression disability are related to service or caused or aggravated by his service-connected tension headaches. The examiner(s) should set forth the complete rationale for all opinions expressed and conclusions reached. 2. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought on appeal remains denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. 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 Supp. 2007). ______________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs