Citation Nr: 1325993 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 08-24 068 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the claim of service connection for tension headaches with depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from November 15, to December 16, 1971. By rating action in March 1972, the RO denied, in part, service connection for tension headaches with depression. The Veteran was notified of this decision and did not appeal. The Veteran's request to reopen the claim was denied by the RO in July 1990. The Veteran and his representative were notified of this decision and did not appeal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision by the RO which found that new and material evidence had not been received to reopen the claim of service connection for tension headaches with depression. In October 2011, the Board declined to reopen the Veteran's claim, and he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Memorandum Decision, the Court vacated the October 2011 Board decision and remanded the appeal to the Board for further action. As previously noted, the Board observes that service connection has also been denied for post traumatic stress disorder (PTSD) by rating decisions dated in September and December 2008. The Board acknowledges that the Court held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In this case, however, the Veteran has advanced different theories in support of his current appeal and his PTSD claim. Specifically, his tension headaches with depression claim is based upon documented in-service symptomatology, while his PTSD claim is based upon contentions of in-service personal assault. In view of these separate theories of entitlement that include a different alleged fact pattern, the Board concurs with the RO's determination to treat these issues as separate claims. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection was last finally denied by an unappealed rating decision in July 1990. 2. The evidence received since the July 1990 RO decision is cumulative and redundant of evidence previously considered and does not raise a reasonable possibility of substantiating the claim of service connection for tension headaches with depression. CONCLUSIONS OF LAW 1. The July 1990 RO decision that last denied service connection is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has not been received to reopen the claim of service connection for tension headaches with depression. 38 U.S.C.A. §§ 1110, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159, 3.303, 20.1105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. § 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in July 2006 and February 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). The claim was last readjudicated in a statement of the case issued in June 2008. Furthermore, based on the communications sent to the Veteran and his representatives over the course of this appeal, he has actual knowledge of the evidence he is required to submit in this case. Based on his contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and relevant VA and private medical records have been obtained and associated with the claims file. The Board has also reviewed the Veteran's Virtual VA records. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the merits of the issue on appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the Veteran in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the Board concludes that an examination is not needed because new and material evidence has not been submitted to reopen the Veteran's claim. See 38 C.F.R. § 3.159(c)(4)(iii). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Finality Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. However, before reaching the merits of the Veteran's claim for tension headaches with depression, the Board must first rule on the matter of reopening of the claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001). As noted above and recognized by the Court, service connection was last finally denied by the RO in July 1990, and there was no appeal of that rating decision. Therefore, the laws and regulations governing finality and reopening of a previously disallowed claim are pertinent in the consideration of the current issue on appeal. A decision by the RO shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification of the decision. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except where there is clear and unmistakable error in the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). Under pertinent law and VA regulations, the Board may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Veteran's request to reopen his claim for service connection was received in June 2006, and the regulation applicable to his appeal defines new and material evidence as evidence not previously submitted to agency decisionmakers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2012). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In this regard, the Board notes that no additional evidence pertaining to tension headaches or depression was received from the Veteran during the one year period following the March 1972 rating decisions that initially denied service connection for the claimed disability, or during the one year period following the July 1990 rating decision that declined to reopen the Veteran's claim. The evidence of record at the time of the March 1972 rating decision that denied service connection for tension headaches with depression, included the Veteran's service treatment records (STRs). The STRs showed that on a Report of Medical History (RMH) for a pre-enlistment examination in July 1971, the Veteran reported a history of tension headaches and depression. The examiner noted on the RMH that the Veteran's tension headaches were relieved with "ASA" (commonly known as aspirin), and that his depression was not limiting or severe. On examination, the Veteran's psychiatric status was normal. The service records showed that the Veteran entered service on November 15, 1971, and that he was seen at the dispensary for headaches on December 3, 1971. At that time, the Veteran reported a history of headaches since a head injury when he was six years old, and said that they came on with exertion. The Veteran was referred to neurology services for further evaluation, at which time he reported that he also "gets nervous and shakes." No neurological abnormalities or cause for the Veteran's symptoms were found on examination and the Veteran was referred to mental hygiene clinic. When seen for headaches on December 5th, the Veteran reported that he suffered a head injury in a motor vehicle accident (MVA) in November, and that he had some tension related to a family situation. When seen by mental hygiene services on December 6, 1971, the Veteran reported headaches and anxiety attacks for many years which were worse with running. The examiner also noted that the Veteran reported he had used hallucinogenic drugs and appeared to want a discharge from service, but that there was no evidence of a psychiatric illness observed during the evaluation which would warrant separation. The Veteran was then referred to the base Narcotics Officer. On a RMH for service separation (Chapter 39-10), the Veteran reported that he had been in an automobile accident and was treated at a private hospital on November 10, 1971. The Veteran also reported a history of headaches, but denied frequent trouble sleeping, depression or excessive worry, nightmares, loss of memory or nervous trouble of any sort. The Veteran acknowledged that he had not experienced a significant illness or injury since induction. The evidence of record at the time of the July 1990 rating decision that declined to reopen the Veteran's claim included numerous private medical reports showing treatment for various maladies, including headaches and psychiatric problems from 1976 to 1989. A Certificate of Attending Physician, received in August 1972, in connection with the Veteran's claim of service connection for a back disability, showed that he was treated for back problems in April 1972, related to a MVA on November 12, 1971, when his car was rear-ended by a truck. The report noted that the Veteran hit his head on the windshield in the accident, but did not show any complaints or treatment for any headaches or psychiatric problems. The records showed that the Veteran was treated for low back and left scapula pain following a MVA in October 1976, when his car was rear-ended and he was rendered unconscious for 30 minutes. Treatment records from University Hospital, dated in February 1977, and received in July 1990, showed that the Veteran was admitted for a psychiatric evaluation. At that time, the Veteran reported a four month history (since an automobile accident in September 1976) of headaches, irritability, forgetfulness, and unexplained anger outbursts, of which he had no recollection of experiencing. The Veteran reported that he hit his head on the dashboard and the windshield and was unconscious after his car was hit from behind by a truck going "85 miles an hour." Psychological testing showed that the Veteran was functioning in the borderline range of intelligence and that there was a strong indication of a schizophrenic process. The Veteran described several incidents involving "staring spells," getting out of bed in the middle of the night and urinating on the floor next to his bed, spanking his six month old "real hard" and violently destroying valuable pictures, but said that he had no recollections of any of the incidents. Additional private medical records showed that the Veteran was unconscious for 20-30 minutes after he fell out of a tree and landed on his head and back while at work in June 1985. The assessment at that time was dizziness and headaches of unknown etiology, possible secondary to cervical strain. An April 1989 note showed that the Veteran reported that his nerves had become extremely bad and that he often wept and became very agitated because of his inability to function since the tree accident in 1985. The records also showed that he suffered several syncope episodes subsequent to the tree accident. As noted in the Court Memorandum Decision, in the March 1972 rating decision, the RO denied the claim, finding that the Veteran's disability was not incurred in or aggravated by his service. In the July 1990 rating decision the RO indicated that the additional evidence while new was not material, and did not show a nervous condition in service or to a compensable degree within one year of discharge from service. The evidence added to the record since the July 1990 rating decision includes numerous private and VA medical records, including records from the Social Security Administration showing treatment for various maladies, including headaches and psychiatric problems from 1989 to 2007. The records showed that the Veteran was awarded social security disability in 1989, due primarily to injuries sustained in the work-related tree accident in 1985. The evidence also included numerous statements by the Veteran and a social worker concerning his claim for PTSD based on a personal assault in service. As noted in the Introduction, the Board has concurred with the RO's determination to treat this matter as a separate and distinct claim from the present appeal as to whether new and material evidence has been received to reopen the claim of service connection for tension headaches with depression. The additional evidence does not provide any material information or any substantive argument not previously considered by the RO in July 1990, that is related to the current issue on appeal. The Veteran's general assertions that his disability was incurred in service were previously considered. Thus, the Board finds these additional statements are cumulative and redundant and do not raise a reasonable possibility of substantiating the claim. As to the recently received medical reports, the additional evidence is cumulative and redundant of previously considered medical records showing complaints of and treatment for psychiatric problems and headaches. This evidence does not offer any material information showing that the Veteran has tension headaches with depression that was incurred in or aggravated by service. The evidence added to the record since the July 1990 rating decision shows continued treatment for headaches and psychiatric problems, but does not show that any current tension headaches with depression was incurred in or aggravated by service or any incident therein. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence); see also Routen v. Brown, 10 Vet. App. 183, 186, (1997) ("[l]ay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. 5108."). As such, the Board finds that the additional evidence does not raise a reasonable possibility of substantiating the claim. As the recently received evidence does not fulfill the threshold burden of constituting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been received to reopen the claim of service connection for tension headaches with depression, the appeal is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs