Citation Nr: 1326688 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-26 414A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received with respect to a claim for service connection for headaches. 2. Entitlement to service connection for headaches, to include as secondary to service connected anxiety. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active duty from February 1979 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the petition to reopen a claim for service connection for headaches and an increased rating for service connected anxiety. In September 2011, the RO awarded an increased rating of 50 percent of anxiety. The Veteran reported that such rating action satisfied her appeal for this issue. Consequently, it is no longer before the Board. A review of the Virtual VA paperless claims processing system does not show any pertinent records that are not already associated with the physical claims folder. The issue of service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a February 2009 decision, the RO denied entitlement to service connection for headaches. 2. Additional evidence received since the February 2009 RO decision, which denied entitlement to service connection for headaches, is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of service connection for headaches. CONCLUSIONS OF LAW 1. The February 2009 RO decision is final. 38 U.S.C.A. § 7104 (West 1991, 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been received since the February 2009 RO decision, and the claim of service connection for headaches is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran is seeking to reopen a claim of service connection for headaches. The Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by granting her petition to reopen. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the fact the Board allows the benefit sought on appeal, discussion of VA's compliance with the notice and assistance requirements of the VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002 and Supp. 2012), would serve no useful purpose. II. Petition to reopen for new and material evidence In February 2009, the RO denied entitlement to service connection for headaches. The Veteran did not appeal, nor did she submit additional pertinent evidence within a year of the decision. The February 2009 decision is final. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.156 (2012). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108; see Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The Veteran's request to reopen her claim of service connection for headaches was received in March 2010, and the regulation applicable to her appeal defines new and material evidence as existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2012). 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. Id. The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence available at the last final prior adjudication by the RO in February 2009, includes service treatment records, March 1983 VA examination report, VA treatment records, and various written statements by the Veteran. As relevant, service treatment records show that the Veteran complained about headaches during service and endorsed having headaches on her Report of Medical History for separation in November 1982. The March 1983 VA examination reflects that the Veteran reported headaches in the context of sinus congestion. The newly submitted evidence includes a May 2012 letter by Dr. R.E., recent VA treatment records, and various written statements by the Veteran. Notably, Dr. R.E. reported that the Veteran's service connected anxiety symptoms aggravated her migraine headaches. As noted above, the threshold for reopening a claim is low. Shade, 24 Vet. App. 110. The Dr. R.E.'s statement is competent medical evidence suggestive of a possible secondary etiology, but is too vague to warrant an outright grant for headaches. See Obert v. Brown, 5 Vet. App. 30 (1993); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). It also triggers VA's duty to provide an examination. Shade, 24 Vet. App. at 110. In summary, the Board finds that the newly received May 2012 letter from Dr. R.E. received in conjunction with the claim to reopen entitlement to service connection for headaches is new and material, and serves to reopen the claim of service connection. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). ORDER New and material evidence has been received to reopen the claim of service connection for headaches, and it is granted for the limited purpose of reopening the claim. REMAND The claim for service connection for headaches must be remanded for a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Service records show that the Veteran complained about headaches in service. Dr. R.E.'s May 2012 letter additionally suggests that her current headaches are secondary to service connected anxiety. 38 C.F.R. § 3.310. A VA examination with pertinent opinions must be obtained as detailed below. Accordingly, the case is REMANDED for the following action: 1. Obtain the VA treatment records after July 2010 for the Veteran. Efforts to obtain VA records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. 2. After associating all updated VA treatment records with the claims folder, schedule the Veteran for a VA headache examination. The claims file, to include a copy of this Remand, and any pertinent records in Virtual VA/ VBMS, must be made available for review. The examination report must state whether this review was accomplished. The examiner is directed to review the Veteran's complaints of headaches in service. A complete clinical interview and examination with any indicated medical studies must be completed. Following interview and clinical examination, the examiner must provide the following opinions: (a) Is at least as likely as not (50 percent probability or greater) that the Veteran's current headaches are proximately due to any active service event, injury, or disease? (b) Is at least as likely as not (50 percent probability or greater) that the Veteran's current headaches are secondary to service connected anxiety? (c) Is at least as likely as not (50 percent probability or greater) that the Veteran's current headaches are aggravated by service connected anxiety? If aggravated, the examiner should indicate the baseline level of disability prior to aggravation and the permanent, measurable increase in the severity of disability due to service connected anxiety. The examiner must provide a rationale to support all opinions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. After completing all development required to adjudicate the Veteran's claim, re-adjudicate the claim. If the benefit sought remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs