Citation Nr: 1604272 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 11-21 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for headaches, and, if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back disability, to include herniated discs at L4-L5 and L5-S1 and lumbar degenerative disc disease (DDD), and, if so, whether the reopened claim should be granted. 3. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for residuals of testicular cancer, and, if so, whether the reopened claim should be granted. 4. Entitlement to service connection for hypertension, to include as due to herbicide exposure. 5. Entitlement to service connection for a cervical spine disability, to include cervical spasm and arthropathy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2007 and December 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia and Baltimore, Maryland, respectively. By way of background, the RO denied reopening of the claims of service connection for headaches, a low back disability and testicular cancer in December 2007, and reaffirmed that denial in January 2008. As part of the January 2008 re-affirmance, the RO also denied entitlement to service connection for hypertension and a cervical spine disability. In May 2008 the Veteran filed a notice of disagreement as to the denial of reopening of the claims of service connection for a low back disability and headaches. He then later in February 2009 filed a notice of disagreement as to all of the issues denied in the January 2008 rating decision. Both notices of disagreement were timely, and the issues were combined into a single appeal and adjudicated together in the July 2011 statement of the case, from which the Veteran perfected the current appeal. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issues of whether new and material evidence has been submitted to reopen claims of service connection for a low back disability and testicular cancer, and entitlement to service connection for headaches, hypertension and a cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A July 2003 rating decision denied service connection for headaches. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one year appellate period. 2. The evidence associated with the claims file subsequent to the July 2003 rating decision is not cumulative and redundant of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for headaches. CONCLUSIONS OF LAW 1. The July 2003 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 2. New and material evidence sufficient to reopen the claim of service connection for headaches has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a), (c) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In light of the fully favorable decision as to the issue of reopening the claim of service connection for headaches, no further discussion of compliance with VA's duty to notify and assist as to that aspect of those issues are necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). The underlying service connection claim for headaches, as well as the other two claims to reopen and two claims for service connection, require further development and are addressed in the remand section below. II. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. Here, the RO last denied entitlement to service connection for headaches in July 2003. The Veteran was notified of the decision, but did not file a notice of disagreement or submit new and material evidence within the applicable appellate period. Therefore, the July 2003 decision became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in July 2003 consisted of service treatment records, private treatment records from Union Hospital, and lay statements from the Veteran. The evidence failed to show an in-service event, injury or disease, or a nexus between the Veteran's headaches and his active duty service. Evidence received since the rating decision includes VA treatment records, private treatment records from several different providers, and additional lay statements from the Veteran. Of particular note, VA treatment records from March 2008 and August 2008 note that the Veteran reported an over 40 year history of headaches. An additional May 2005 treatment record noted that the Veteran reported an over 30 year history of headaches. These statements place the onset of the headaches either during or immediately after his service. Further, the lay statements they memorialize are competent, as the Veteran is competent to report experiencing headaches over a period of time since they are a lay observable and diagnosable disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The March 2008 record further noted that, based on the symptoms, the Veteran had a possible diagnosis of migraines without aura, analgesics abuse headaches, or muscle contraction headaches. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers. It is material as it addresses the previously unestablished facts of a nexus between the Veteran's headaches and his active duty service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for headaches is warranted. ORDER New and material evidence having been received, the claim for service connection for headaches is reopened; the appeal is granted to this extent only. REMAND VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159. In this case an April 2007 VA treatment record recently associated with the claims file indicates that the Veteran, at some point, potentially applied for disability benefits from Social Security Administration (SSA). It is not clear if the Veteran did in fact apply for such benefits, or if he did apply whether the records would potentially deal with claimed disabilities other than his low back. However, such a possibility cannot be definitely excluded, and therefore it cannot be determined at this time that the SSA records are not relevant. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). While VA does not have a duty to provide a medical examination or obtain a medical opinion until a claim is reopened, there is still a duty to obtain relevant records. See 38 C.F.R. § 3.159(c). As there are outstanding, potentially relevant SSA records, the Board finds that the claims must be remanded so that appropriate attempts can be made to obtain them. As it is not clear what the SSA records, if any, contain, the Board finds that it is inappropriate at this time to adjudicate the claims of whether to reopen service connection for a low back disability and residuals of testicular cancer based on the evidence of record at this time, and will instead remand them. Should the SSA records be obtained, it can then be decided whether they constitute new and material evidence sufficient to reopen the Veteran's these claims, or indeed, whether they are pertinent to the service connection claims, including the cervical spine disability. VA's duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has a current diagnosis of headaches (including migraines and tension headaches), VA treatment records reflect competent statements alleging an onset of headaches in service and continuance of those headaches since, and there is otherwise insufficient medical evidence of record to decide the claim. See 38 U.S.C.A. § 1154(b); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Board must remand the issue of entitlement to service connection for headaches so that a VA examination can be provided addressing the etiology of the currently diagnosed headaches. Likewise, the Veteran has a current diagnosis of hypertension. Further, an information request to the Joint Services Records Research Center (JSRRC) shows that the Veteran served in the country of Vietnam from October 1965 to January 1966, and as such the Veteran is presumed to have been exposed to herbicides. While the Veteran has not specifically alleged that his hypertension is due to herbicide exposure, his service in Vietnam and presumptive exposure to herbicides reasonably raises this theory of entitlement. Finally, there is otherwise insufficient evidence to decide the claim. See 38 U.S.C.A. § 1154(b); McLendon, 20 Vet. App. 79. As such, the Board finds that the issue must be remanded for an examination to determine the etiology of the Veteran's hypertension, to include whether it is related to herbicide exposure. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and obtain a complete copy of any adjudication for disability benefits and the underlying records. All efforts to obtain such SSA records should be fully documented, and a negative response must be provided if records are not available. 2. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 3. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's headaches. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's headaches are related to his active duty service, to include exposure to herbicides? A detailed rationale for the opinion must be provided. Review of the entire claims file is required; however, attention is invited to March 2008 and August 2008 treatment records noting that the Veteran reported an over 40 year history of headaches, accompanied by nausea and vomiting. The Veteran's exposure to herbicides should be presumed. A medical opinion which relies upon the lack of listing as a presumptive condition, without consideration of direct service connection, is inadequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. After undertaking the development listed in Directives 3 and 4 to the extent possible, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's hypertension. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's hypertension is related to his active duty service? A detailed rationale for the opinion must be provided. In providing this opinion, the examiner should indicate consideration of the 2006 conclusion of the National Academy of Sciences (NAS) that found "limited or suggestive evidence of an association" between herbicide exposure and hypertension (notwithstanding that VA has not added hypertension to the list of conditions under 38 C.F.R. § 3.309 for which presumptive service connection due to Agent Orange exposure is available). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs