Citation Nr: 1757520 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-13 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for headaches. 2. Entitlement to service connection for a seizure disorder. 3. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder with marijuana abuse (PTSD). 4. Propriety if the reduction in the rating for lumbar myositis from 20 percent to 10 percent effective June 2, 2016 (and entitlement to increase in the rating or ratings). 5. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Christine K. Clemens, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July to November 1974 and from March to July 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Huntington, West Virginia and Jackson, Mississippi Department of Veterans Affairs (VA) Regional Offices (RO). An April 2010 rating decision assigned a 20 percent rating for lumbar myositis. An October 2010 rating decision found clear and unmistakable error in a prior rating decision that denied service connection for PTSD, and granted service connection for PTSD (with marijuana abuse), rated 50 percent, effective November 25, 1997 (and also declined to reopen a claim of service connection for headaches, denied service connection for a seizure disorder, and denied a TDIU rating). A June 2016 rating decision reduced the rating for lumbar myositis from 20 to 10 percent, effective June 2, 2016. In August 2016 a videoconference hearing was held before the undersigned; a transcript is in the record. [Although the Agency of Original Jurisdiction (AOJ) implicitly reopened the claim of service connection for headaches (by considering it on the merits), the Board must address on its own whether new and material evidence to reopen the claim has been received to establish its jurisdiction to review the merits of the claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The issue is characterized accordingly.] The issues of service connection for headaches (on de novo review), and seeking increased ratings for PTSD and lumbar myositis and a TDIU rating are REMANDED to the AOJ. VA will notify the Veteran if action is required. FINDINGS OF FACT 1. In September 2016 written correspondence, prior to the promulgation of a decision in the matter, the appellant withdrew his appeal seeking service connection for a seizure disorder; there is no question of fact or law in the matter remaining for the Board to consider. 2. A final January 1998 rating decision denied service connection for headaches, essentially on the basis that such disability was not manifested in, or shown to be related to, the Veteran's service. 3. Evidence received since the January 1998 rating decision tends to show that the Veteran has headaches that are related to his 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. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant are met with respect to the claim of service connection for a seizure disorder; the Board has no further jurisdiction to consider an appeal in this matter. 38 U.S.C. §§ 7104, 7105(b)(2)(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. New and material evidence has been received, and the claim of service connection for headaches may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawn Appeal The Board has jurisdiction in any question which under 38 U.S.C. § 511(a) is subject to a determination by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative, in writing or on the record during a hearing. C.F.R. § 20.204. In September 2016, the Veteran, through his representative, expressed his intent to withdraw his appeal seeking service connection for a seizure disorder. There is no allegation of error of fact or law remaining for appellate consideration as to this issue. Accordingly, the Board no longer has jurisdiction to consider an appeal in the matter. Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regarding that portion of the appeal that is being decided at this time, as the decision grants the benefit sought (reopens the claim), the Veteran is not prejudiced by any notice or duty to assist omission, and further discussion of the VCAA regarding this matter is not necessary. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 38 C.F.R. 3.103(c)(2) requires that a RO official or VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the August 2016 hearing, the issues were clarified. The Veteran was also advised that new and material evidence was needed to reopen a previously finally denied claim before such claim could be considered on the merits, and of the definition of new and material evidence. A deficiency in the conduct of the hearing is not alleged. Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's service treatment records (STRs) show that in August 1974 he sustained injuries to his back and left long finger in a troop transport accident. Examination of the head was negative. It was noted that he had a loose tooth. On September 1974 service separation examination, neurological evaluation was normal. In a June 1976 report of medical history, the Veteran denied frequent or severe headaches, a head injury and periods of unconsciousness. On June 1976 service separation examination, neurological evaluation was normal. On October 1977 VA general medical examination, the Veteran stated he sustained a low back injury in 1974. There was no mention of headaches. Medical records from the Michigan Department of Corrections (DOC) show that in April 1979, the Veteran stated that there was nothing wrong with his health. On January 1998 VA psychiatric examination, the Veteran stated that he was involved in an accident in service, and was rendered unconscious; was hospitalized; was released the next day; and has had headaches since his discharge from service. A January 1998 rating decision denied service connection for headaches on the basis that, while STRs showed that the veteran was in an accident, neurological examinations in September 1974 and June 1976 were normal; there was no evidence that the Veteran had headaches related to his service. He was notified of the January 1998 decision, and did not appeal it, and it became final. In February 2011, a VA neurologist stated that he was treating the Veteran for chronic headaches. He opined that, based on the Veteran's STRs and the information the Veteran provided to him, it was plausible that the headaches resulted from an accident in service in 1974. When there is a final denial on a claim of service connection, such claim may not be reopened and allowed on the same factual basis. 38 U.S.C.A. § 7105. However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo. 38 U.S.C.A. § 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 requirement that new and material evidence must raise a reasonable possibility of substantiating a claim is a low threshold requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As noted above, a January 1998 rating decision denied service connection for headaches on the basis that such disability was not manifested in, or shown to be related to, the Veteran's service. For evidence received since that rating decision to be new and material (relate to the unestablished fact necessary to substantiate the claim), it would have to tend to show that the Veteran has headaches that are related to his service. The evidence of record at the time of the January 1998 rating decision included the Veteran's STRs, a January 1998 VA examination and medical records from the Michigan DOC. These records did not show that the Veteran had headaches that are related to service. Evidence received since the January 1998 rating decision includes VA and Social Security Administration medical records, a February 2011 opinion from a VA neurologist and the Veteran's testimony at the August 2016 hearing before the undersigned. The Veteran testified that he has had headaches since the accident in service. Notably, in February 2011, a VA neurologist opined that it was plausible that the Veteran's headaches are due to the accident in service. This evidence directly addresses unestablished facts necessary to substantiate the claim of service connection for headaches. The sworn accounts of symptoms in service are presumed credible for the purpose of reopening. Particularly in light of the low threshold standard for reopening endorsed by the Court in Shade, the additional evidence tends to substantiate a fact critical to the claim, and raises a reasonable possibility of substantiating the claim. Therefore, it is new and material, and the claim of service connection for headaches may be reopened. De novo consideration of the claim is addressed in the remand below. ORDER The appeal seeking service connection for a seizure disorder is dismissed. The appeal to reopen a claim of service connection for headaches is granted. REMAND The Board finds that further development of medical evidence is necessary for proper de novo consideration of the reopened claim of service connection for headaches. As is noted above, in February 2011, a VA neurologist opined, in essence, that the Veteran's headaches may be related to the documented accident he was involved in during service. On November 2011 VA headache examination, the Veteran stated that his headaches began after a truck accident in service. He said that after the accident, he awoke in a medevac chopper and was then hospitalized for two days. The diagnosis was migraine headaches. The examiner stated that there was no credible evidence that the Veteran sustained a head injury in service, and noted that posttraumatic headaches typically begin at the time of or shortly after the head trauma, and that here there was no evidence that he experienced significant headaches in service or for decades after. At the August 2016 hearing, the Veteran and his attorney asserted that the November 2011 opinion ignored records from the Michigan DOC showing that the Veteran reported headaches in 1987 and 1990, and that the August 1974 (following the accident in service) treatment note indicating that he had a loose tooth, corroborates that he sustained head trauma in that accident (the Board finds that to be a not unreasonable assumption). In his October 2011 notice of disagreement, the Veteran also alleged that his service-connected PTSD triggered and/or aggravated his headaches. The November 2011 examiner's opinion did not address the aggravation aspect of that allegation. Regarding the rating for PTSD, during the August 2016 hearing, the Veteran's attorney noted that several statements of the case (SOCs) were issued and that they contain conflicting information. Notably, a March 2014 SOC indicates that a rating in excess of 50 percent for PTSD is denied; however, the section of the SOC that discussed a claim for a TDIU rating, notes that PTSD is rated 70 percent. The most recent VA psychiatric examination was in April 2013 (when the examiner found that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity). VA outpatient treatment records show that in October 2017, he reported hearing voices and seeing "stuff" in his peripheral vision. Records of treatment since 2014 have not been considered by the AOJ (and were not addressed in a supplemental SOC (SSOC)). In light of the suggestion of worsening psychiatric disability and the length of the interval since the last VA examination, a contemporaneous examination to assess the severity of the PTSD is necessary. Regarding the rating for lumbar spine disability, an April 2010 rating decision assigned a 20 percent rating, effective May 2009. A June 2013 rating decision confirmed and continued that rating (but noted that while some improvement in his condition was shown, the improvement was not established to be sustained). On June 2, 2016 VA spine examination, there was no spasm, and the Veteran did not report a radicular pattern. Based on the findings on that examination, a June 2016, rating decision found that sustained improvement was shown, and reduced the rating for the lumbar myositis to 10 percent, effective June 2, 2016. Notably, a SSOC that addressing evidence (and administrative actions) following the 2014 SOC, to include the reports of VA spine examinations in June 2016 and November 2017, is not shown to have been issued. Regarding the claim seeking a TDIU rating, an August 2016 report by a Certified Rehabilitation Registered Nurse indicates that the Veteran's PTSD/major depressive disorder and chronic low back disability prevent him from obtaining and maintaining any substantially gainful employment. Notably, this issue is inextricably intertwined with the claims seeking increased ratings, and consideration of the appeal seeking TDIU must be deferred pending resolution of the increased rating claims. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record all outstanding, updated to the present, records of VA evaluations and treatment the Veteran has received for headaches, a low back disability, and a psychiatric disability (i.e., any such records not already associated with the claims file). He should also be asked to identify any private providers of such evaluations and treatment (records of which are not in his claims file), and to submit authorizations for VA to secure such records. The AOJ should secure for the record all records for which authorizations are provided. 2. The AOJ should then arrange for the Veteran's record to be returned to the VA examiner who provided the November 2011 opinion (or, if that provider is unavailable, forwarded to another appropriate physician) for review and an advisory medical opinion regarding the likely etiology of the Veteran's headaches, to specifically include whether it is at least as likely as not (a 50% or greater probability) that his headaches are due to a head injury in service or were caused or aggravated (the opinion must address aggravation) by his service connected PTSD. The opinion should specifically address the (apparently plausible) contention that a notation of a loose tooth following an accident in service supports that the Veteran sustained head trauma therein (and should acknowledge the Michigan DOC records that show complaints of headaches were documented earlier than noted in the November 2011 decision). All opinions must include rationale, with citation to factual data/medical literature, as deemed appropriate. 3. The AOJ should also arrange for a VA psychiatric examination of the Veteran to assess the severity of his PTSD. The Veteran's record must be reviewed by the examiner in conjunction with the examination. The nature and severity of all psychiatric symptoms must be described in detail, and the examiner should specifically comment on their impact on social and occupational functioning. The examiner should include rationale with all opinions, to include comment on (agreement or disagreement with, with rationale) the opinions offered on August 2016 evaluation by a Certified Rehabilitation Registered Nurse.< . 3. The AOJ should then review the record (and in particular all evidence and information received since the SOCs in these matters were issued) and readjudicate the remaining claims. If any remains denied, the AOJ should issue an appropriate SSOC, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. [The SSOC must reconcile the above-noted inconsistencies in the May 2014 SOC, i.e., advise the Veteran of an errors therein.] The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs