Citation Nr: 1342040 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-17 677A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbosacral spine strain. 2. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbosacral spine strain. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for migraine headaches. 4. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from April 1988 to July 1991 and from October 1995 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and February 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran seeks to reopen and be granted service connection for left lower extremity radiculopathy and migraine headaches. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. By a September 2007 rating decision, the RO denied the Veteran's claim for service connection for radiculopathy, left lower extremity and for migraines; she was advised of the RO's decision, and of her appellate rights. 2. The Veteran did not initiate an appeal of the RO's decision within one year; nor was any new and material evidence received within a year. 3. Additional evidence received since the RO's September 2007 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for radiculopathy, left lower extremity and for migraines, and raises a reasonable possibility of substantiating the claim. 4. The Veteran does not have a current diagnosis of radiculopathy, left lower extremity. 5. The competent and credible evidence demonstrates that the Veteran's migraine headaches are not related to her active duty service. CONCLUSIONS OF LAW 1. The RO's September 2007 rating decision denying service connection for left lower extremity radiculopathy, and for migraine headaches, is final. 38 U.S.C.A. §§ 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for left lower extremity radiculopathy, and for migraine headaches. 38 U.S.C.A. §§ 1110, 1131, 5108 (West 2002); 38 C.F.R. §§ 3.303, 3.156 (2013). 3. The criteria for entitlement to service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1110, 1131, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 3.311 (2013). 4. The criteria for entitlement to service connection for migraine headaches have not been met. 38 U.S.C.A. §§ 1110, 1131, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has a statutory and regulatory duty to notify and assist veterans in substantiating a claim for VA benefits pursuant to The Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his or her representative or agent, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. With respect to requests to reopen previously denied claims, a claimant must be notified of both what is needed to reopen the claim and what is needed to establish the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the case at hand, the record reflects that the RO provided the Veteran with the requisite notice by letter mailed in June 2010 for the Veteran's claim for left leg radiculopathy, and August 2009 for the Veteran's migraine headaches claim. These letters provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The June 2010 and August 2009 letters also provided notice regarding the need to submit new and material evidence to reopen the Veteran's previously denied claim, and advised the Veteran of the bases for the prior denials. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed with her claim for service connection for left leg radiculopathy and migraine headaches. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records to the extent possible, and the Veteran herself submitted applicable STRS in her possession. Also, the Veteran received a VA spine examination in September 2010, and a Disability Benefit Questionnaire (DBQ) for headaches in May 2012. VA has obtained a copy of these exams as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records from the University of Kansas Medical Center, Gentry County Hospital, Litton Pathology Associates, and Northwest Medical Center have been associated with the claims folder. Significantly, neither the Veteran nor her representative has identified any additional existing evidence that is necessary for fair adjudication of the claim of left leg radiculopathy or migraine headaches that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claim for left leg radiculopathy and migraine headaches. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence The Veteran seeks to reopen a previously denied claim of service connection for left leg radiculopathy, and migraine headaches. In general, RO decisions are final when they are not timely appealed. See 38 U.S.C.A. § 7105. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that 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. 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). Only evidence presented since the last final denial will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim. Boggs v. Peake, 520 F.3d 1330, 1336 (2008). A claim based upon the same factual basis may not be considered, unless the evidence supporting the Veteran's new theory of causation constitutes new and material evidence. Id. All theories of entitlement that pertain to the same disability, or same benefit, constitute the same claim. Roebuck v. Nicholson¸ 20 Vet. App. 307, 313 (2007). At the time of the September 2007 denial, the evidence of record used in the rating decision included the Veteran's service treatment records (STRs), VA examinations from November 2006, June 2007, and July 2007. The rating decision also relied on the private records from Northwest Medical Center from October 2002 to July 2005, Gentry County Memorial Hospital from February 1991 through March 1998, and records from the University of Kansas Medical Center from December 1991 to January 1998. Since the September 2007 rating decision, VA has received new evidence. In September 2010 the Veteran underwent a VA spine examination which discussed the Veteran's lower left extremity radiculopathy. The Veteran also underwent a DBQ examination for headaches in May 2012. Updated VA treatment records have also been submitted to substantiate the Veteran's claim. In treatment from November 2011, the Veteran stated that she experienced both pain in her head, her legs, and to her feet. The November 2011 treatment also included a neurologic exam with an assessment and plan for the Veteran. The Veteran's treatment records from March 2012 are also associated with the record. The Veteran additionally submitted evidence from June 2006 regarding her lumbar spine report and radiculopathy. The Veteran also supplemented the record with her Notice of Disagreements received June 2010, and March 2011. This evidence was not considered by the RO in the September 2007 rating decision and is therefore new evidence. It is material because it offers a more comprehensive picture of the nature and etiology of the disabilities at issue, and relates to unestablished facts necessary to substantiate the claims for service connection for radiculopathy, left lower extremity, and for migraines, and raises a reasonable possibility of substantiating the claims. As new and material evidence has been received to reopen the Veteran's claims, the claims for entitlement to service connection for left leg radiculopathy and migraine headaches are reopened. Left Leg Radiculopathy Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(a) (2012). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, service connection is in effect for lumbar spine strain, 20 percent disabling. In reviewing the evidence of record, the Veteran complained of radiating pain down her leg which occasionally left her toes numb, in November 2006. The Veteran also showed a limitation in range of motion to her left foot in November 2006. The examiner did note that the Veteran was able to move her foot upward to replace the sock on her foot. The Veteran was also able to do a modified leg lift to 45 degrees. Treatment in July 2009 shows that the Veteran had normal testing for the cerebellar system from heel to shin, with normal toe walking, and no tandem gait imbalance. The Veteran was unable to heel walk. The Veteran underwent a VA spine examination in September 2010. The Veteran told the examiner that she has lumbar back pain with radiation down both legs. The examiner reviewed the Veteran's history of flare-ups, did a review of systems, physically examined the Veteran, performed a motor examination, and gave a diagnosis. The examiner found that the Veteran has lumbar pain without evidence of radiculopathy, and that no radiculopathy was found. The Veteran had no evidence of radiculopathy based on the medical opinion of the examiner. In November 2011 the Veteran had continued complaints of pain to her left leg, left knee and foot, with intermittent burning to her foot. The Board recognizes that the Veteran informed the VA examiner of her radiating lower extremity pain from her spine. However, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to diagnose lower leg pain as radiculopathy. Therefore the Veteran's lay statements, while competent are not credible. See Jandreau. According to the VA examiner of record the Veteran does not suffer from radiculopathy related to her lumbar spine. The Board finds this opinion to be more probative than statements offered by the Veteran. While the Veteran is certainly competent to testify to a history of pain in her lower left extremity, pain alone is not a disability for VA compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore without a current diagnosis of lower left leg radiculopathy the remaining elements of inservice injury, and nexus are moot. The Veteran fails to fulfill the first element for service connection on a direct or secondary basis. Migraines If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases, including migraine headaches as organic diseases of the nervous system, if manifested to a compensable degree within one year following discharge from active military service. 38 C.F.R. §§ 3.307, 3.309. At the Veteran's May 2012 headache DBQ, the examiner diagnosed the Veteran with a headache condition, stating that the Veteran's condition included migraines, and migraine variants. The Veteran has also stated via lay evidence that she suffers from headaches and migraines. The Board finds the Veteran has a current disability as required by 38 C.F.R. § 3.303. Evidence submitted with the Veteran's original claim for service connection for migraines in November 2006 shows that the Veteran had complaints of headaches in service. The Veteran submitted STRs from August, November, and December of 1995. Accompanying the Veteran's Notice of Disagreement (NOD) received in June 2010 the Veteran stated that her headaches began in 1993, became more intense in 1995 while in Haiti on active service, and that became progressively worse from 1996 to 2007. Treatment records from April 2008, show that the Veteran stated she suffered from severe headaches which began about a year before the consultation. The treatment record states that the Veteran's "headaches originally began about a year ago after a head injury where she struck the back and left temporal region of her head on a car door." The neurologist conducting the treatment found that the most recent complaints were different than past complaints of migraines. The prior history of migraines is described by one of the Veteran's private physician, who stated the Veteran's throbbing headaches started in 1999. The physician from Northwest Medical Center additionally stated in the July 2005 assessment that the Veteran suffered from acute headaches which represent acute vascular headaches. At the Veteran's headache DBQ in May 2012, the Veteran stated that she first experienced headaches in 1988 during training. The Veteran further stated that after she injured her back in service she had recurring headaches but that physicians were more concerned about treating her back. She stated she had headaches about once every three weeks and would take Tylenol. The Veteran reported an on and off headache history for the remainder of her active service. The Veteran also brought to the examiner STRs which indicated treatment for headaches. The DBQ examiner reviewed the medical history of the Veteran, reviewed the claims file and determined that the Veteran's current vascular headaches were less likely than not incurred in or caused by active service. The examiner reviewed the specific instances where the Veteran was treated for headaches in service. The examiner explained that the headaches documented in June 1994 were due to the fact that the Veteran did not have her glasses. The other headaches the examiner stated had specific causes, that in August 1995 the Veteran had a headache due to a sinus infection, and that in November 1995 the Veteran had a headache due to chloroquine ingestion. The examiner further explained that: The headaches [the] [V]eteran describes now are migraines, has been diagnosed with vascular headaches that are most likely related to smoking.... [I]n 2008 there is a lengthy note that states [V]eteran started having headaches from head trauma a year ago when she struck her head on a car door and loss vision at the time. The symptoms she described at that incident were the same symptoms described at this exam. The Veteran's statements in support of her claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as head pain, or head throbbing, and can diagnose a simple condition like headaches or migraines. See Jandreau v. Nicholson. However, the Veteran is not competent to determine etiologically that scattered headaches in service correlates to her current diagnosis of vascular headaches. To date, there is no medical evidence demonstrating a causal relationship between the Veteran's time in service and her currently diagnosed vascular headaches. Because of the absence of a medical nexus between her current diagnosis and her service, the Board finds that the evidence is against a grant of service connection. Importantly, the VA examiner from May 2012 opined that the Veteran's headaches are less likely than not related to service. As it is not shown that the Veteran has had medical training or experience, given the circumstances of this case, her assertions concerning the etiology of her migraine headaches can be accorded minimal probative weight. Service connection is denied on a direct basis. With regard to the Veteran's alleged continued symptomatology from service, the weight of the evidence reflects that the Veteran was diagnosed with throbbing headaches a few years after service and not within a year from service. Additionally, there were no symptoms or diagnosis of migraines during service, aside from the occasional headache associated with colds, chloroquine ingestion, and the need for glasses. As such, service connection may not be granted on a presumptive basis for chronic disability. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). There is no evidence of continuity of symptomatology as migraines were not specifically noted in service and were not noted in post-service treatment records until a few years after service. Consequently, the Board finds that the preponderance of the evidence is against entitlement to service connection for migraine headaches. W]hen the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). "This is because the RO generally does not assess the credibility of the evidence or determine the need for a medical examination or opinion when reopening is denied." Id. at 403 (internal citations omitted). "Thus, if the Board initially reopens a claim when the RO has not considered the need for a medical examination or opinion, or assessed the credibility of the evidence, the Board would be considering law that the RO had not already considered, possibly implicating § 20.903(b)." Id. In addition, the "RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by [38 U.S.C.A. § 7104 (West 2002)]." Id. at 399. "The Board, however, may proceed to decide the merits of the claim if the Board first secures a waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits." Id. at 399-400. Here, given the evidence of record and for the reasons discussed above, the Board finds no prejudice to the Veteran is addressing his claims on the merits. ORDER New and material evidence having been received, the claims of entitlement to service connection for lower left leg radiculopathy, and migraine headaches are reopened. Service connection for lower left leg radiculopathy is denied. Service connection for migraine headaches is denied. ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs