Citation Nr: 1317178 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 06-37 085A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for migraine headaches, as a residual of head trauma. 2. Entitlement to service connection for migraine headaches, as a residual of head trauma (headache disability). 3. Entitlement to service connection for a right upper extremity disability. 4. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from March 1973 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006 and October 2006 decisions of the Jackson, Mississippi, Regional Office (RO). The June 2006 decision denied the migraine headaches, as a residual of head trauma, service connection claim on a de novo basis; however, the claim was initially denied in a final August 1976 RO decision. In a final October 1996 RO administrative decision, the claim was, again, denied on the merits, although couched in terms of willful misconduct. Thus, the matter has been recharacterized as an application to reopen. The June 2006 decision also denied the right upper extremity service connection claim. The October 2006 decision declined to reopen the cervical spine disability service connection claim, denied in a final May 2005 decision. The claim was reopened in the November 2010 Board decision. Based on the evidence and to most accurately reflect the benefits sought, the claims have been recharacterized on the title page. In June 2007, the Veteran testified at a hearing before a Decision Review Officer (DRO); the transcript is of record. The Board remanded the appeals in November 2010 and September 2011. The issue of entitlement to a total disability evaluation, based on individual unemployability, due to service-connected disabilities (TDIU) has been raised by the Veteran's statements during an October 2011 VA examination, but this issue has not not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a cervical spine disability and right upper extremity disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO notified the Veteran of the August 1976 decision denying the original service connection claim for migraine headaches, as a residual of head trauma, and of his appellate rights; no appeal was perfected and that decision is now final. 2. The RO notified the Veteran of the October 1996 administrative decision denying the merits of the service connection claim for migraine headaches, as a residual of head trauma, and of his appellate rights; no appeal was perfected and that decision is now final. 3. Evidence added to the record since the October 1996 RO administrative decision is new and material and relates to an unestablished fact necessary to substantiate the claim. 4. Migraine headaches, as a residual of head trauma, had its onset in service. CONCLUSIONS OF LAW 1. The criteria to reopen the service connection claim for migraine headaches, as a residual of head trauma, have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for migraine headaches, as a residual of head trauma, have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is reopening and granting the service connection claim for a headache disability. This is a full grant of the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Application to Reopen At the time of the August 1976 decision, denying the initial service connection claim for migraine headaches, as a residual of head trauma, the record contained service treatment records, an April 1976 and July 1976 VA examination reports, a July 1976 private examination report and statements from the Veteran. The RO denied the merits of the claim, finding no evidence of any residual head trauma diagnosis, including migraine headaches. The Veteran was notified of the decision and his appellate rights; however, he did not appeal the decision and new and material evidence was not received within one year of the decision. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In an October 1996 administrative decision, the RO denied the merits of a service connection claim for migraine headaches, as a residual of head trauma. The evidence of record included the evidence mentioned above, subsequently generated post-service treatment records, multiple VA examination reports, Social Security Administration (SSA) records, and October 1995 police reports. The RO concluded that the condition was related to a post-service gunshot wound to the head, although couched in terms of being related to willful post-service misconduct. The Veteran was notified of the decision and his appellate rights; however, he did not appeal the decision and new and material evidence was not received within one year of the decision. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The October 1996 decision is the last final decision of record. The claim decided is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104. In order to reopen a claim, the Veteran must present or secure new and material evidence with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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 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). Since the October 1996 decision multiple pieces of evidence have been associated with the claims folder. A December 2011 VA examination report documents the diagnosis of migraine headaches and a January 2007 VA treatment record indicates the condition is not related to a post-service gunshot wound to the head. The Veteran has also provided multiple competent statements placing the onset of his headache symptomatology in service. The new evidence of record raises a reasonable possibility of substantiating the migraine headache service connection claim, as a residual of head trauma, and reopening is warranted. Service Connection Claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The Veteran's December 1972 enlistment examination notes no abnormalities of the head, face, neck, scalp, or neurological system. The Veteran was involved in an April 1974 motor vehicle accident and was treated for multiple injuries, including head trauma. An August 1975 service treatment record notes his headache complaints and diagnosis of tension headaches. October 1975 notes his treatment related to head plain, with results revealing no abnormalities. He was again treated for head related pain in February 1976, which was noted as being related to a head trauma sustained one year prior. At an April 1976 VA examination, the Veteran complained of continuous headache pain that that had its onset in service. The examiner documented his history of in-service head trauma; however, no headache diagnosis or etiological opinion was provided. A November 1977 VA treatment record details the Veteran's account of head pain and tenderness, including in-service trauma; neither a headache diagnosis nor an etiological opinion was provided. An October 1995 police report indicates that the Veteran was the victim of a shooting, resulting in gunshot wounds to the head and abdomen and the arrest of the assailant. An October 1995 private hospitalization records reflect the Veteran's hospitalization because of the shooting and report that, at the time of discharge from the hospital, the bullet was unable to be removed from his head. In November 1995, the Veteran sought treatment for the physical manifestations of the residuals of his gunshot wounds and was admitted to a VA hospital. His history of post-service injury and treatment; the physical and psychiatric residuals of the incident with relevant test findings; and his report of symptomatology, including the onset of a severe headache during testing were noted. A traumatic brain injury due to gunshot wound with right hemiparesis is one of the diagnoses provided at this time, but no headache or similar disability was diagnosed. At his February 1996 state disability evaluation, the Veteran reported continuous headaches; right side weaknesses; and impairment associated with walking standing and memory. The physician noted his history of gunshot wounds; treatment; a diagnosis of dementia "due to head trauma (GSW)." However, there is no suggestion or opinion that there is any diagnosed headache disability related to a gunshot wound to the head, nor was a headache disability diagnosed. A January 2005 VA neurological follow-up treatment record documents the Veteran's account of increasing episodes of falling, with the most recent treatment being in December 2004. A March 2006 VA neurological report notes the Veteran's account of headache symptoms; his history of a GSW to the head; current examination findings; and the relevant history of treating his conditions. The VA neurologist diagnosed a chronic headache disability secondary to medications used to treat right shoulder and left knee disabilities. January 2007 and November 2007 VA neurological reports indicate that the Veteran was evaluated for headache symptoms, which he reported were continuously present since he sustained trauma that was caused by his left knee giving-out. Based his account of symptoms, relevant medical evidence and current examination findings, the examiner diagnosed a headache disorder secondary to a 2004 trauma to the head. A November 2012 VA medical opinion states a February 1996 state disability evaluation attributed the headache diagnosis to a gunshot wound to the head. The examiner also reports that the Veteran's headache condition was present in 1996, prior to any medically documented head trauma related to a service connected disability. Because the Veteran's headache disability was related to "his self-inflicted Gun Shot Wound to his head...an act of willful misconduct," the disability was not likely caused or aggravated by any service-connected disability nor was it related to military service. The December 2012 VA examination report notes the Veteran's reports of headache symptomatology; history of head related trauma and gunshot wounds, and treatment; and current examination findings. Although a current headache diagnosis was provided, the examiner opined the condition was not likely related to military service because there was no evidence of any headache diagnosis in service or until the Veteran sustained a gunshot wound to the head. The Veteran provides a competent and credible account of headache symptomatology, including on a frequent and recurrent basis since separation, and of in-service onset. See Jandreau, supra. He has provided a generally consistent account of residual head trauma symptomatology, including on his initial March 1976 application for VA benefits only months after separation and solely for the purpose of seeking and obtaining medical care. The objective medical evidence also tends to corroborate his account of migraine headaches, as a residual of head trauma, since separation. Taken together the Veteran's statements on these matters are competent, credible and highly probative. The November 2012 VA medical opinion and December 2012 VA examination opinion are woefully inadequate. The medical opinions do not adequately consider and analyze the Veteran's competent and credible accounts of headache symptomatology, including in and since separation. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The examiners' reasoning also improperly relies largely, if not entirely, on the absence of corroborating medical evidence and a grossly inaccurate recitation of the medical evidence. The November 2012 VA examiner's opinion cites the purported medical findings and opinions of a February 1996 state disability evaluation without supplying sufficient independent medical reasoning and analysis. Moreover, the cited February 1996 state disability evaluation merely lists the Veteran's account of headache symptomatology as part of the "INDICATED PROBLEMS" and does not provide even a reasonably clear medical opinion relating the symptoms to the post-service gunshot wound to the head. The December 2012 VA examination opinion also indicates there was no evidence of in-service headache related treatment in-service, which is incorrect because August 1975, October 1975 and February 1976 service treatment records explicitly reflect the Veteran's treatment for headache related symptoms. Thus, the November 2012 VA medical opinion and December 2012 VA examination opinion are of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Highly probative VA medical records, dated in March 2006, January 2007 and November 2007, acknowledge the Veteran's post-service gunshot wound to the head, but provide cogent and well reasoned medical assessments that sufficiently disassociates diagnosed migraine headaches, as a residual of head trauma, from any intercurrent cause, including a post-service gunshot wound to the head. 38 C.F.R. § 3.303(b). This evidence suggests migraine headaches, as a residual of head trauma, are related to a service-connected disability but the most probative evidence relates the condition directly to the Veteran's military service. In sum, the most probative evidence of record confirms that the Veteran has current diagnosis of migraine headaches; that he sustained a head trauma in service; that he was diagnosed with a headache disability in service; that he regularly and frequently complained of headache symptoms prior to and since separation; and that the headache disability is not related to a post-service gunshot wound to the head. Thus, the competent, credible and persuasive evidence sufficiently places the onset of this current headache disability in service, and service connection for migraine headaches, as a residual of head trauma, is warranted. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). ORDER New and material evidence has been received to reopen a service connection claim for migraine headaches, as a residual of head trauma; to this extent, the claim is granted. Service connection for migraine headaches, as a residual of head trauma, is granted. REMAND The respective October 2011 VA orthopedic and neurological examinations are not adequate. The October 2011 orthopedic examiner indicates medical and radiological findings only support a diagnosis of cervical spine pain (i.e., cervicalcalgia), which prevented the examiner, as well as the VA neurological examiner, from providing a nexus opinion because there was no evidence of a current disability. However, an October 2011 VA primary care treatment record documents the Veteran's abnormal MRI cervical spine findings, diagnosing C3-C6 herniated nucleus pulpous causing mild spinal stenosis, suggesting the Veteran has current cervical spine and upper right extremity disabilities. Thus, an adequate medical examination and opinion must be obtained. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The record suggests that the Veteran receives regular VA cervical spine and right upper extremity treatment; however, relevant records, dated since September 2012, have not been associated with the paper or electronic claims file. Efforts to obtain these records must be attempted. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge, and/or were contemporaneously informed of his cervical spine and right upper extremity symptoms, including any possible relationship to military service or service-connected disability. Provide an appropriate amount of time to submit this evidence. 2. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's cervical spine and right upper extremity conditions, dated since September 2012. Any negative response(s) must be in writing and associated with the claims folder. 3. Upon completion of the aforementioned development, schedule the Veteran for a VA orthopedic examination with an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to diagnose all cervical spine and right upper extremity pathology, if any is present, specifically ruling in or excluding a diagnosis of C3-C6 herniated nucleus pulpous causing mild spinal stenosis and an upper right extremity neurological condition. Then, as to any diagnosed condition, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the condition: (A) had its onset in-service or within one year of separation; or (B) is related to the Veteran's period of military service, including an in-service motor vehicle accident; or (C) was caused by any service-connected disability; or (D) is aggravated by any service-connected disability. At the time of this remand, service connection is in effect for migraine headaches, as a residual of head trauma; chronic lumboscaral strain; a right shoulder disability and a left knee disability. The provided examination report must reflect consideration of both the medical and lay evidence of record, and set forth a complete rationale for all findings and conclusions. All tests necessary must be performed by the examiner. 4. Then, readjudicate the matters on appeal. If either of the benefits sought on appeal remain denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case and given the opportunity to respond. 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. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs