Citation Nr: 1644860 Decision Date: 11/30/16 Archive Date: 12/09/16 DOCKET NO. 13-05 265 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of service connection for migraine headaches and, if so, whether service connected is warranted. 2. Entitlement to a rating in excess of 10 percent since May 27, 2010, for right knee chondromalacia. 3. Entitlement to a rating in excess of 10 percent since May 27, 2010, for post-operative residuals of a mandible double fracture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from January 1973 to February 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the St. Petersburg, Florida, Regional Office (RO). On his January 2013 VA Form 9, the Veteran requested a videoconference hearing. In a March 2016 statement, however, the Veteran's representative withdrew the hearing request. Therefore, the Board considers the hearing request cancelled, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(e) (2015). As to the issue of whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for migraine headaches, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claims without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues of service connection for migraine headaches and of increased ratings for right knee chondromalacia and for post-operative residuals of a mandible double fracture are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In April 1978, VA denied service connection for migraine headaches. The Veteran was informed in writing of the adverse determination in April 1978. The Veteran did not subsequently submit a notice of disagreement (NOD) with the decision. 2. The April 1978 rating decision denying service connection is final. 3. The additional documentation submitted since the April 1978 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The April 1978 rating decision denying service connection for migraine headaches is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence sufficient to reopen the Veteran's claim has been received. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has issued several notices to the Veteran including two June 2010 notices which informed him of the evidence generally needed to support his claims; what actions he needed to undertake; and how VA would assist him in developing his claims. The June 2010 notices were issued to the Veteran prior to the September 2010 rating decision from which the instant appeal arises. VA has secured or attempted to secure all relevant documentation to the extent possible. Therefore, the Board finds that the VA's duties to notify and to assist have been met. II. Analysis Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period 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). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In April 1978, VA denied service connection for migraines as the Veteran had only one headache for two days in service and "[t]here is no other evidence or indication that the [V]eteran was treated subsequent to this complaint for headaches and there was no diagnosis of any particular type of headaches." He did not submit an NOD with the adverse decision. The evidence upon which the April 1978 rating decision denying service connection was formulated may be briefly summarized. A May 1974 service treatment record states that the Veteran had complaints of severe headaches lasting two days. He was advised to wear sunglasses and was diagnosed with sinusitis. In December 1977, he underwent a VA examination. The Veteran had complaints of headaches involving photophobia and nausea and that required him to lie in bed until the headache passes-sometimes for as long as a full day. He was diagnosed with migraines. New and material evidence pertaining to the issue of service connection for migraine headaches was not received by VA or constructively in its possession within one year of written notice to the Veteran of the April 1978 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since the April 1978 rating decision includes a VA examination, VA clinical documentation, and written statements from the Veteran. An April 2008 VA treatment record states that the Veteran's headaches began in 1974. In a March 2011 NOD, the Veteran wrote that he was treated for migraines within a year of service separation at a VA medical clinical by Dr. R. The April 2008 VA treatment record and the Veteran's March 2011 NOD are of such significance that they raise a reasonable possibility of substantiating the Veteran's claim for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran's claim of entitlement to service connection for migraine headaches is reopened. On his VA Form 9, the Veteran wrote that he never received notice of the April 1978 decision and he, therefore, contends that that decision never became final. The record reflects that the Veteran was sent a VA Form 20-822a on April 12, 1978, indicating his compensation award. That form lists several enclosures that were also sent to the Veteran, including a VA Form 6782, titled Original Disability Compensation. VA Form 6782 listed the disabilities for which the Veteran had been granted service connection and the ratings assigned and listed disabilities for which VA had denied service connection. The United States Court of Appeals for Veterans Claims (Court) has held that in the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. See YT v. Brown, 9 Vet. App. 195 (1996). The Court specifically held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. Id. at 199. While the Veteran asserts that he never received notice of his denial of service connection for migraines in April 1978, the record does not contain evidence that would support this assertion, and his statements alone are insufficient to rebut the presumption of regularity in the administrative process. Therefore, the April 1978 decision was final. ORDER The Veteran's application to reopen his claim of entitlement to service connection for migraine headaches is, and to this extent only, the appeal is granted. REMAND Remand of service connection for migraine headaches is necessary to obtain VA treatment records, including those from Dr. R. After additional treatment records are added to the file, an updated medical opinion will be required. Remand of the issues of an increased rating for a right knee disorder and for a jaw disorder is necessary to obtain VA treatment records. On his January 2013 VA Form 9, the Veteran wrote that he has had new treatment for his knee from two VA medical centers. The most recent record indicating treatment for a knee disorder is from October 2011. Additionally, he wrote that he has received treatment for his jaw disorder from a VA dentist, but treatment records are not of record. The case is REMANDED for the following action: 1. Advise the Veteran that he may submit any additional medical and non-medical evidence relating to his right knee disorder, his jaw disorder, and his migraine headaches that is not already in VA's possession. 2. Associate with the record any VA clinical documentation not already of record pertaining to the treatment of the Veteran for migraine headaches. All treatment records from Dr. R., as discussed in the Veteran's March 2011 NOD, should be associated with the claims file. 3. Associate with the record any VA clinical documentation not already of record pertaining to the treatment of the Veteran for a right knee disorder. This includes treatment at both the Lake City VAMC and the Gainesville VAMC. 4. Associate with the record any VA clinical documentation not already of record pertaining to the treatment of the Veteran for a jaw disorder. This includes treatment from the Lake City VAMC dental facility. 5. AFTER THE ABOVE DEVELOPMENT IS COMPLETE, return the file to the VA examiner who conducted the August 2010 VA medical examination. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of his migraine headache disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a. whether the Veteran's migraine headache disorder had its onset during active service or was caused by any in-service event or injury. b. whether the Veteran's migraine headache disorder had its onset within a year of service separation. The examiner's attention is drawn to the following: *May 1974 service treatment record indicating that the Veteran was seen for complaints of headaches. *December 1977 VA examination stating a diagnosis of migraine headaches. *April 2008 VA treatment record stating that headaches began in 1974. *August 2010 VA examination. *March 2011 NOD, including a statement from the Veteran that he was diagnosed with migraine headaches within a year of service separation at a VA medical clinic. *January 2013 VA Form 9 which includes a statement from the Veteran. 6. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs