Citation Nr: 1327036 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-47 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for migraine headaches. 2. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision respectively from the Regional Office in Hartford, Connecticut (RO) which denied entitlement to the Veteran's claim. The Veteran filed a notice of disagreement (NOD) on March 2010. A statement of the case (SOC) was issued on June 2010 and the Veteran perfected his appeal with the timely submission of a VA Form 9 in November 2010. In April 2011, the Veteran testified at a Board video hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Having reopened the Veteran's claim, the issue of entitlement to service connection for migraine headaches is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for migraine headaches was denied in an unappealed rating decision in October 1984. 2. Evidence submitted since the October 1984 decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and triggers VA's duty to assist by obtaining a medical opinion. CONCLUSIONS OF LAW 1. The October 1984 rating decision, which denied a claim for entitlement to service connection for migraine headaches, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. The evidence received since the final October 1984 rating decision, which denied the claim of entitlement to service connection for migraine headaches, is new and material, and thus the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA With respect to the claim to reopen, because the claim is granted herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (2012). Legal Criteria A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. 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). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, 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. In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court recently held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Analysis In an October 1984 rating decision, the RO denied a claim for service connection for migraine headaches on the basis that the evidence did not show that the Veteran's current migraine headaches were related to post-spinal tap headaches experienced during and immediately after service. The evidence considered at this time consisted of service treatment records(STRs), an August 1984 VA neurological examination, and the Veteran's contentions. The Veteran was notified of that decision and of his appellate rights by way of letter sent to him on October 29, 1984. He did not appeal that rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1362; see also Buie, 24 Vet. App. at 251-52. Thus, the October 1984 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The RO received the instant petition to reopen the claim in September 2009. In a February 2010 rating decision, the RO declined to reopen the claim on the basis that new and material evidence had not been submitted. The evidence considered at this time consisted of the Veteran's service treatment records, private treatment records dated from February 1986, VA outpatient treatment records from January 1985 to August 1986 and May 2008 to January 2010, an August 1986 VA neurological examination, and statements from the Veteran. The Veteran was notified of that decision and of his appellate rights by way of letter sent to him on February 16, 2010. The Board notes that in April 2011, the Veteran submitted additional evidence including lay statements dated March 2011. VA regulations provide that any pertinent evidence submitted by an appellant without waiver of RO consideration must be referred to the RO for review and preparation of a supplemental statement of the case (SSOC). 38 C.F.R. § 20.1304 (2012). Here, however, the Veteran has submitted waiver via his representative dated April 2011 in which he waived RO review of any additional evidence submitted and asked the Board to proceed with adjudication of his claim. Accordingly, a remand for RO review is not required. The Veteran's VA outpatient treatment records, written statements, and testimony constitute new evidence as they were not previously considered by the RO. Since the lack of evidence demonstrating a relationship between the Veteran's initial post-spinal tap headaches and his current migraine headaches formed the basis for the initial denial of the claim and a lack of new and material evidence in the subsequent decision, in order to be material, any new evidence must relate to this unestablished fact and/or at least trigger the duty to assist by providing a medical opinion. See 38 C.F.R. § 3.303 (2012); see also Shade, 24 Vet. App. at 117. The Veteran's VA outpatient treatment records, written statements, and testimony essentially indicate that his current migraine headaches have continued intermittently and with increasing severity since his original in-service spinal tap, in contrast to what was presented in the August 1984 VA examination. The Board notes that the Veteran is competent to testify as to the severity of the symptomatology associated with his migraine headaches as well as the time periods of onset and continuity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, with the exception of original August 1984 examination, the Veteran's history of chronic migraine headaches from the time of the in-service spinal tap to present have been consistent. As such, his statements are presumed credible for the purposes of determining whether new and material evidence has been submitted. In short, the new evidence relates to an unestablished fact of the actual onset of the Veteran's migraine headaches and its continuity with his current diagnosed condition. Hence, it is material. It also triggers VA's duty to assist by providing a medical opinion, as the evidence tends to show a variance with the facts upon which the findings of the original August 1984 examination were made. As new and material evidence has been received, the claim is reopened. The Veteran's appeal to this extent is allowed. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for migraine headaches; the appeal is granted to this extent. REMAND Having reopened the Veteran's claim for entitlement to service connection for migraine headaches, VA has a duty to assist the Veteran in the development of the claim by seeking an additional medical opinion on the question of causal nexus and obtaining any outstanding treatment records. The Veteran has provided written statements and testimony at his April 2011 Board hearing that he never experienced headaches at all prior to his military service. He has further stated that, since his in-service spinal tap, he has continued to have headaches that have increased in frequency and severity. The Veteran also stated that he was seen for treatment of his condition in 1984 at the VA Medical Center West Haven and that he had been provided a VA examination on July 7, 1985. Lay statements provided by friends and family of the Veteran in March 2011 indicated that the Veteran had not suffered from headaches until he was discharged from the service and that they have continued in frequency and severity. A review of the Veteran's STRs show that both his entrance and exit physical examinations were noted as normal with regard to neurological issues. There were no notations related to headaches. However, a treatment record in September 1970 revealed that the Veteran was seen for complaints of headaches that he thought may be due to eye strain. No diagnosis or etiological opinion was rendered. In November 1970, the Veteran was seen for complaints related to his cervical spine and received a spinal tap. In three subsequent treatment notes for the month of November 1970, the Veteran was treated for headaches, variously described as post-spinal tap headaches and migraine headaches. The Veteran's VA outpatient treatment records show that he has been continually treated for complaints of frequent and severe migraine headaches from 1985 to 2010. He has been prescribed a number of different pain relievers that only appear to temporarily stabilize the problem. Although there have been notations of the Veteran's subjective history relating these headaches to his spinal tap in service, no objective etiological opinions have been rendered. The Veteran was provided with a VA neurological examination in August 1984. At this examination, the examiner noted the Veteran's history of headaches, stating that onset was in 1969 after a spinal tap procedure. The examiner stated that the Veteran claimed that the headaches continued immediately after leaving service and were manifested by bilateral pain. The examiner further stated that the Veteran claimed the headaches eventually stopped in 1971 and then headaches began occurring again in 1977. These new headaches were manifested only by right hemisphere pain. The examiner opined that the Veteran's current migraine headaches, beginning in 1977, were not related to his post-spinal tap headaches, ending in 1971, as there was no objective evidence of continuity. The Veteran was provided with an additional VA neurological examination in August 1986. At this examination, the examiner noted the Veteran's history of headaches, stating that onset was in 1969 after a spinal tap procedure. However, in variance from the August 1984 examination, the examiner stated that the Veteran indicated that he had experienced continual intermittent migraine headaches from the time of the in-service spinal tap to present. The examiner noted that he felt that the Veteran was greatly exaggerating his symptoms. He further found that there was no objective abnormality with the Veteran's health to account for his headaches. However, he also noted that the Veteran's history of headaches was plausible for common migraines. The examiner did not provide an opinion as to whether the Veteran's migraine headaches were related to his in service complaints of headaches after the spinal tap. In light of this evidence, the Board finds that the Veteran should be afforded a new VA examination to address the questions of whether his currently diagnosed migraine headaches were incurred as a result of service. See McLendon. v. Nicholson, 20 Vet. App. 79 (2006). In particular, the examiner should focus on the potential that the Veteran's condition could have continued from the time of the in-service spinal tap to present. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In particular, the Veteran has identified records relating to his treatment, namely 1984 records from the West Haven VA Medical Center and a VA examination dated July 7, 1985. These records are not currently associated with the claims file and must be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. In particular, any records from the West Haven VA Medical Center dated in 1984 as well as a July 7, 1985 VA examination must be obtained and associated with the claims file. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any additional evidence has been associated with the claims file, the Veteran should be afforded an appropriate examination in order to determine the etiology of his migraine headaches. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must consider the Veteran's lay testimony in rendering a decision. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that current migraine headache disorder had its onset in service, or is otherwise the result of a disease or injury in service. In particular, the examiner should discuss the Veteran's complaints of continuity of symptoms from the time of his in-service spinal tap to present. The examiner should provide a rationale for all opinions. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs