Citation Nr: 1332534 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-21 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Whether new and material evidence has been received to reopen a claim seeking service connection for neurological disability, diagnosed as migraine syndrome and homonymous hemianopia. 2. Entitlement to service connection for neurological disability, diagnosed as migraine syndrome and homonymous hemianopia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to September 1972. This appeal to the Board of Veterans' Appeals (Board) arises from a November 2008 rating decision of the San Diego, California Regional Office (RO) of the Department of Veterans' Affairs (VA). In June 2013, a Board hearing was held at the RO before the undersigned Veteran's Law Judge; a transcript of the hearing is of record. FINDINGS OF FACT 1. In a May 1973 decision, the RO denied entitlement to service connection for neurological disability, including migraine syndrome and homonymous hemianopia. 2. Evidence associated with the record since the May 1973 decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for neurological disability, diagnosed as migraine syndrome and homonymous hemianopia. 3. The Veteran was found to be neurologically sound upon entry into service; the evidence does not clearly and unmistakably show that his neurological disability, diagnosed as migraine syndrome and homonymous hemianopia, pre-existed service and the Veteran's current neurological disability, diagnosed as migraine syndrome and homonymous hemianopia, is reasonably shown to be related to service. CONCLUSIONS OF LAW 1. The May 1973 RO decision is final. 38 U.S.C.A. § 7104 (West 2002). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for neurological disability diagnosed as migraine syndrome and homonymous hemianopia. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.156, 3.159 (2013). 3. The criteria for entitlement to service connection for neurological disability diagnosed as migraine syndrome and homonymous hemianopia are met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable disposition of the claim for neurological disability diagnosed as migraine syndrome and homonymous hemianopia, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis A. Claim to Reopen In a May 1973 rating decision, the RO denied service connection for homonymous hemianopia and migraine syndrome, finding that the Veteran's neurological disability pre-existed service and that there was no evidence that the disability was aggravated by any incident in service. The Veteran did not appeal this decision and it became final. 38 U.S.C.A. §§ 7104, 7105. The Veteran sought to reopen his claim in September 1986. By letter dated in November 1986, the RO requested that he submit evidence in support of his claim. However, he did not respond and the September 1986 claim was abandoned. See 38 C.F.R. § 3.158. The Veteran again sought to reopen his claim in January 2008. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "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. 38 C.F.R. § 3.156(a). 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. If the government fails to rebut the presumption of soundness, the Veteran's claim is one for direct service connection. See Wagner v. Principi, 370 F. 3d at 1096 (Fed. Cir. 2004). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evidence received since the May 1973 rating decision includes a May 2008 VA examination report and the Veteran's hearing testimony. The May 2008 VA examination report shows that the Veteran was diagnosed with left homonymous hemianopia, chronic intermittent short term memory loss, and migraine syndrome. After reviewing the record and examining the Veteran, the examiner found that the Veteran's currently diagnosed neurological disability was likely caused or a result of an in-service illness. The examiner indicated that he believed that the Veteran's current symptoms were simply a continuation of the symptoms he experienced in service. Thus, the symptoms in service were more likely than not an early manifestation of his current vision/memory problems. At the June 2013 Board hearing, the Veteran testified that he experienced a car accident three years prior to service where he bumped his head on the steering wheel without breaking the skin. He indicated that he did have some headaches just after the accident but these quickly cleared up and his head was totally fine at the time he entered service. Notably, the existing evidence of record includes a January 1969 enlistment examination report showing that the Veteran was found to be neurologically sound at his January 1969 enlistment examination and subsequent medical reports indicating that he experienced intermittent visual disturbances during service, which were diagnosed as homonymous hemianopia. In conjunction with this documentation, the newly received evidence relates to facts necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating the claim as it tends to indicate that the Veteran did not have a pre-existing neurological disability at the time he entered service and that he has a current neurological disability that was incurred in service. Thus, the evidence is new and material and the claim may be reopened. 38 C.F.R. § 3.156. B. Service connection for neurological disability As no neurological disability was found at the Veteran's January 1969 enlistment examination, he is presumed to have been sound on entry into service. The service treatment records do include a June 1969 progress note that appears to indicate that the Veteran reported that he had experienced his homonymous hemianopia prior to service and subsequent to the 1966 auto accident. However, there are also subsequent progress notes and medical reports, which, consistent with his hearing testimony, tend to indicate that these symptoms did not begin until after entrance into service. Consequently, the evidence does not clearly and unmistakably establish that the Veteran's neurological disability pre-existed service and the presumption of soundness is not rebutted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Given that the Veteran must be presumed sound, the May 2008 VA examiner's finding that the Veteran's current neurological disability is simply a continuation of the symptomotaology he experienced in service, combined with the aforementioned documentation of the symptomatology in the service treatment records, constitutes affirmative evidence that the current neurological disability was incurred in service. 38 C.F.R. § 3.303. Also, given the presumption, there is no medical evidence to the contrary. (Notably, a later June 2010 VA examiner found no evidence supporting exacerbation of in-service migraines beyond their 'natural course' during service but given that the Veteran must be presumed sound on entry, this opinion does not constitute a basis for denying the Veteran's direct service connection claim. See Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004)). Accordingly, the preponderance of the evidence indicates that the Veteran's currently diagnosed neurological disability was incurred in service and service connection for the disability is warranted. 38 C.F.R. § 3.303; Gilbert, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence having been received, the claim for service connection for neurological disability, diagnosed as migraine syndrome and homonymous hemianopia, is reopened. Service connection for neurological disability, diagnosed as migraine syndrome and homonymous hemianopia, is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs