Citation Nr: 1314148 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 08-10 039A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for headaches has been received. 2. Entitlement to service connection for a headache disorder, to include as secondary to service-connected disability(es). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to October 1986. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2006 rating decision in which the RO, inter alia, denied the Veteran's petition to reopen a claim for service connection for headaches. In August 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2008. In September 2012, the Board remanded the previously-denied claim for service connection for consideration of additional evidence received and issuance of a supplemental statement of the case (SSOC). The SSOC was issued in February 2013 (reflecting that the all evidence of record was reviewed). The request to reopen was again denied and the matter returned to the Board for further appellate consideration. Regarding characterization of the appeal, the Board points out that it must address the question of whether new and material evidence to reopen the claim for service connection for headaches has been received because this matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of the claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Accordingly-and, given the Board's favorable disposition of the petition to reopen the claim for service connection for headaches-the Board has characterized the appeal as encompassing both matters set forth on the title page. The Board's decision to reopen the Veteran's claim for service connection for headaches is set forth below. The claim for service connection for a headache disorder, to include on a secondary basis, on the merits, is addressed in the remand following the order; this matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. In an August 2002 rating decision, the RO denied service connection for headaches; although notified of the denial in an August 2002 letter, the Veteran did not initiate an appeal. 3. Evidence associated with the claims file since the August 2002 denial of the claim for service connection for a headache disability includes new evidence that relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2002 rating decision in which the RO denied service connection for headaches is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. As pertinent evidence received since the August 2002 denial is new and material, the criteria for reopening the claim for service connection for headaches are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Due Process Considerations 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) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the Veteran's request to reopen the claim for service connection for headaches, the Board finds that all notification and development action needed to render a fair decision on this aspect of the appeal have been accomplished. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In this case, the Veteran's claim for service connection for headaches (then characterized as headaches/dizziness was previously denied by the RO in an August 2002 rating decision. The evidence of record at the time consisted of the Veteran's service treatment records dated from 1965 to 1986, which reflects evidence of head injury and loss of consciousness , but do not reflect complaints or treatment for chronic headaches. No treatment records were (or are) available for the period from 1963 to 1964. The evidence or record in August 2002 also included private treatment records dated from 1995 to 2001, and VA examination reports dated in June 2002 (general medical) and July 2002 (audiological and nerve conduction studies)-none of which specifically addresses the nature or etiology of the Veteran's headaches.. The RO denied service connection for headaches (and dizziness), in essence, because the evidence did not support a finding that the Veteran's condition was related to service. Although the Veteran was notified of the denial and his appellate rights in a letter also dated in August 2002, he did not initiate an appeal. As such, the RO's August 2002 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board points out, however, that when new evidence is received prior to the expiration of the one-year appeal period, that evidence must be considered to have been filed in connection with the earlier claim. See 38 C.F.R. § 3.156(b). Additionally, relevant service department records received at any time after a denial, will be sufficient for reconsideration of the earlier claim. See 38 C.F.R. § 3.156(c). In this case, new evidence was constructively received within one year of the August 2002 denial. Specifically, a VA outpatient treatment record documented the Veteran's headache symptoms within one year of the August 2002 denial. As this is a VA record, it is considered to have been constructively in the possession of the RO at the time that it was recorded. However, the treatment record did not point to any etiology of headaches and was merely duplicative of evidence already of record. Therefore, it is not considered "new" evidence sufficient to support continuation of the earlier claim under 38 C.F.R. § 3.156(b). Additionally, duplicate service treatment records were received in March 2006, however as they were duplicates of service treatment records previously of record at the time of the prior denial, they are not sufficient to reconsider the earlier claim under 38 C.F.R. § 3.156(c). On these facts, no evidence has been received that would preclude the finality of the August 2002 rating action. Under pertinent legal authority, 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); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Further, In this case, in December 2005, the Veteran filed an informal, nonspecific claim to reopen "claims" that had been denied in August 2002. He filed a specific claim to reopen the claim of entitlement to service connection for a chronic headache disability in March 2006. 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 decisionmakers 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). Here, the last final denial of the claim for service connection for a headaches is the RO's August 2002 decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Pertinent evidence added to the claims file since August 2002 includes a December 2005 letter in which Dr. S.S., a private physician, indicated that the Veteran's headaches could be attributed to past military service. Additionally, VA examination reports dated in April 2010 and April 2011 for evaluation of the heart and hypertension, respectively, include notations suggesting the existence of a relationship between the Veteran's headaches and his now service-connected CAD and hypertension. The Board finds that the above-described evidence provides a basis for reopening the claim for service connection for headaches. The evidence is "new" in that it was not before agency decisionmakers at the time of the August 2002 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record. Further, this evidence is "material" evidence in that the evidence goes to the question of whether the Veteran's current headaches can be traced to service or a service-connected disability. While certainly not conclusive, the evidence relates to an unestablished fact necessary to substantiate the claim for service connection for headache disability (i.e., a current disability related to military service or a service-connected disability), and thus, when presumed credible, raises a reasonable possibility of substantiating the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for headaches are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence to reopen the claim for service connection for headaches has been received, to this limited extent, the appeal is granted. REMAND The Board's review of the claims file reveals that further RO action on the reopened claim-now characterized to include service connection on a secondary basis is warranted. Although the Board is reopening the Veteran's claim , the RO has not considered the claim-particularly, the expanded claim-on the merits. Under these circumstances, and to avoid any prejudice to the appellant, a remand for RO consideration of the claim on the merits, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board also finds that further development of the merits claim is warranted. The Veteran asserts that his headaches are due to a head injury in service. Service treatment records confirm that he had a closed head injury in July 1985. Additionally, an October 1973 service treatment record indicates that he was involved in an accident with a cow and was unconscious for about 30 seconds. As discussed above, the December 2005 private opinion letter from Dr. S.S., indicates that the Veteran's headaches could be related to service; however, the Board observes that the opinion was speculative and provided no rationale. As such, the opinion is not sufficient to support award of service connection r grant of service connection. Alternatively, the Veteran claims that he has a headache disorder that was caused by, or is aggravated by, his service-connected CAD and/or hypertension disabilities. Pursuant to 38 C.F.R. § 3.310(a) (2012), service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. That regulation has been interpreted to permit service connection not only for a disability caused by a service-connected disability, but also for disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. As noted above, the VA examination reports dated in April 2010 (CAD) and April 2011 (hypertension) include notations suggesting the existence of a relationship between the Veteran's headaches and his now service-connected CAD and hypertension. While the notations are sufficient to reopen the claim, they are not sufficient to support an award of service connection on a secondary basis. In neither report did the examiner clearly indicate that the Veteran actually has a distinct headache disability associated with service-connected disability. In this regard, the April 2010 VA examiner noted that the Veteran had CAD with an associated headaches, without further comment. Similarly, the April 2011 VA examiner simply answered "yes" to a question of whether the Veteran experienced headaches related to hypertension, without further comment. Other evidence of record likewise raises a question as to whether the Veteran has a distinct headache disorder versus headaches as symptoms of other disabilities, to include a December 2011 Psychiatric Disability Benefits Questionnaire (DBQ) completed upon evaluation of the Veteran's service-connected posttraumatic stress disorder (PTSD) reflecting a notation that the Veteran had headaches that may affect his personality; as well as a July 2012 VA outpatient optometry record from noting the Veteran's complaints of headaches and diagnosis of cataracts and refractive error with presbyopia. As, on this record, there remains a question of whether there exists a distinct headache disability and if so, the nature and etiology of any such disability, the Board finds that an examination with a medical opinion is needed to resolve the claim for service connection. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Hence, the RO should arrange for the Veteran to undergo examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the reopened claim. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo the examination, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The record indicates that the Veteran has been receiving treatment at the VA Medical Center (VAMC) in Battle Creek, Michigan, and, the claims file contains treatment records from that facility through November 2012. More recent records from that facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Battle Creek VAMC all outstanding, pertinent records evaluation and/or treatment of the Veteran since November 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim for service connection, on the merits. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for a headache disorder on the merits. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Battle Creek VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since November 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for service connection that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159 (2012). All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate physician, to determine the nature and etiology of any current headache disorder. The entire claims file, to include a complete copy of this REMAND must be made available to the physician designated to examine the Veteran, and each examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should clearly indicate whether the Veteran has a distinct headache disability as opposed to experiencing headaches as a symptom of any other disability. If he does have a distinct headache disability, clearly identify the headache disorder. If a headache disorder is diagnosed, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that (a) the disability had its onset in or is otherwise medically related to service, to include an in-service head trauma; or, if not (b) was caused or is aggravated by service-connected disability(ies), including service-connected coronary artery disease, hypertension, and/or PTSD. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for service connection for a headache disorder, to include as secondary to his service-connected disability(ies), in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs