Citation Nr: 1525839 Decision Date: 06/17/15 Archive Date: 06/26/15 DOCKET NO. 10-27 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for headaches. 2. Whether new and material evidence has been received to reopen a claim of service connection for a skin disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and sister ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1990 to May 1991 with additional periods of service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. The Veteran has since submitted additional evidence with a waiver of RO initial consideration. FINDINGS OF FACT 1. An unappealed November 1998 rating decision denied the Veteran's initial claim of service connection for headaches based on findings that the chronic headache disability was not manifest to a compensable degree within the presumptive period. 2. Evidence received since the November 1998 rating decision tends to show that the Veteran's headaches may be related to service; relates to an unestablished fact necessary to substantiate the claim of service connection for headaches; and raises a reasonable possibility of substantiating such claim. 3. The Veteran's headaches are related to an incident in service. 4. An unappealed November 1998 rating decision denied the Veteran's initial claim of service connection for a skin disability based essentially on a finding that the known clinical diagnosis of evanescent hives was not undiagnosed and was not incurred in or caused by service. 5. Evidence received since the November 1998 rating decision does not tend to show that that the Veteran's skin disability is undiagnosed or may be related to service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for a skin disability; and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for headaches may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). 2. On de novo review, service connection for migraine headaches is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 3. New and material evidence has not been received, and the claim of service connection for a skin disability may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim 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). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element(s) needed for service connection that were found insufficient in the prior final denial on the merits. Inasmuch as this decision grants the benefit sought with respect to the headache claim, there is no reason to belabor its impact on this matter as any notice error or duty to assist omission is harmless. With respect to the skin claim, the Veteran was advised, in August 2007 correspondence, of the information and evidence needed to reopen the claim per Kent. A July 2012 letter, provided notice concerning all elements of a service connection claim in accordance with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006), and a January 2013 supplemental statement of the case readjudicated the claim. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran's service treatment records (STRs) and postservice treatment records have been secured. Although not required until a previously denied claim is reopened, the RO arranged for a VA skin examination in February 2010. The Board finds that this report of examination is adequate for rating purposes as it contains sufficient clinical findings and informed discussion of the pertinent history and features of the disability on appeal to constitute probative medical evidence adequate for adjudicating the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). VA's duty to assist is met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the January 2015 hearing, the undersigned asked questions to help the Veteran identify new and material evidence that may be relevant to her claim and ascertained whether any evidence identified was of record or needed to be obtained. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. The record was held open for 60 days for the Veteran to obtain any additional evidence in support of her claim. The Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied. Legal Criteria, Factual Background, and Analysis Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 C.F.R. § 5108. "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). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Reopening a Claim of Service Connection for Headaches A November 1998 rating decision denied the Veteran's original claim of service connection for headaches based essentially on findings that the chronic headache disability was not manifest to a compensable degree within the presumptive period. She did not appeal the decision, and no new and material evidence was received within a year of that decision. Accordingly, it became final. 38 U.S.C.A. § 7105. Evidence of record at the time of the November 1998 rating decision included service treatment records (STRs), private treatment records, a VA examination report, and several buddy statements submitted in support of the Veteran's claim. Evidence received since the November 1998 rating decision includes a January 2015 medical opinion from a VA psychologist who opined that the Veteran's headaches are more likely than not a result of a head injury she sustained in service during a military sexual trauma. The Board finds that the evidence received since the November 1998 rating decision addresses an unestablished fact necessary to substantiate the claim of service connection and provides a link between the Veteran's headaches and service. Accordingly, the Board finds that the additional evidence received is both new and material, and that the claim of service connection for headaches may be reopened. The analysis turns to de novo review of the claim. Given the favorable determination, the Board finds that the Veteran is not prejudiced by the Board so proceeding (i.e., without returning the claim to the AOJ for initial de novo review). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disability 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. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In an August 2007 statement, the Veteran reported headaches immediately following service in the Persian Gulf. In an undated statement, she reported that she was sexually attacked during service and that she later woke up in the shower with her head hurting; she was unsure if she was knocked unconscious during the attack but began having headaches after returning home. In June 2010 correspondence, she reported that she had a very bad headache after waking up on the concrete floor of the shower, believing that she was either hit or was injured in a fall during the attack. During a February 2010 Decision Review Officer hearing related to her claim of service connection for posttraumatic stress disorder (PTSD), the Veteran reported that she was sexually attacked and woke up in the shower with a headache. See DRO Transcript, p. 19. The Board notes that service connection for PTSD based on military sexual trauma was granted in a March 2010 rating decision. During the January 2015 Board hearing, she testified that she woke up in the shower after the attack and that her head was hurting her; she felt a bump on her head and noticed a little blood there as well. See Board Transcript, pp. 7, 8. In January 2015 correspondence, the Veteran's VA psychologist noted that she was being treated for PTSD as a result of military sexual trauma. She noted that the Veteran was knocked unconscious during her assault and has consistently reported migraine headaches following her assault and head injury. The psychologist opined that, given the mechanism of the injury and temporal correlation with onset, the migraine headaches are more likely than not a result of the head injury sustained during the in-service assault. The Board finds that the Veteran's headaches are related to the military sexual trauma she experienced in service. Accordingly, service connection is warranted for migraine headaches. Reopening a Claim of Service Connection for a Skin Disability A November 1998 rating decision denied the Veteran's original claim of service connection for a skin disability based essentially on a finding that such disability was a result of a known clinical diagnosis of evanescent hives which was not shown to be related to service. She did not appeal the decision, and no new and material evidence was received within a year of that decision. Accordingly, it became final. 38 U.S.C.A. § 7105. Evidence of record at the time of the November 1998 rating decision included STRs, private treatment records, a VA examination report, and several buddy statements submitted in support of the Veteran's claim. Evidence received since the November 1998 rating decision includes private and VA treatment records, a February 2010 VA examination report, additional buddy statements submitted in support of the Veteran's claim, and statements by the Veteran in support of her claim. Reviewing the additional evidence, the Board finds that no new evidence received is material in that none shows that the Veteran's skin disability is undiagnosed or is related to service, i.e., no evidence pertains to an unestablished fact necessary to substantiate this claim. Although new buddy statements have been received, the Board finds that they are redundant of previous statements regarding the Veteran's skin condition during service. Following the January 2015 hearing, the record was held open for a period of 60 days to give the Veteran the opportunity to submit records (including medical records) to support her claim. None were subsequently received. Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for a skin disability may not be reopened. ORDER The appeal to reopen a claim of service connection for headaches is granted, and service connection for headaches is granted on de novo review. The appeal to reopen a claim of service connection for a skin disability is denied. ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs