Citation Nr: 18139825 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-44 480 DATE: October 1, 2018 ORDER New and material evidence having been received, the claim for service connection for a migraine or tension headache disability is reopened. REMANDED The claim for service connection for a migraine or tension headache disability is remanded. The claim for a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A January 2008 rating decision denied service connection for tension headaches (claimed as migraines); the Veteran was notified of the rating action and of her appellate rights. The Veteran did not perfect an appeal on this issue, and new and material evidence was not submitted within one year of the decision. 2. The evidence received since the January 2008 denial relates to an unestablished fact necessary to substantiate the claim for service connection for a migraine or tension headache disability and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2008 rating decision that denied service connection for a headache condition is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. New and material evidence has been received to reopen the previously denied claim for service connection for a headache condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1994 to November 1995 and from July 1999 to June 2007. In November 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (c), (d)(3). However, if evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The claim for service connection for a headache disability is based on the same factual basis as the previously denied claim for service connection for a headache disability. That claim was denied in a January 2008 rating decision on the basis that there was no medical evidence that the Veteran had a current headache condition. The Veteran was afforded a VA examination in February 2008, and a March 2008 rating decision continued the January 2008 denial on the same grounds. The Veteran did not perfect an appeal on this issue, and she did not submit new and material evidence within one year following the March 2008 rating decision. Thus, the January 2008 decision became final. Accordingly, new and material evidence must be received to reopen the claim of entitlement to service connection for a headache disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence received since the January 2008 denial became final includes a September 2014 VA examination, wherein the examiner noted multiple medical treatment records dated during the appeal period (which are currently not associated with the claims file), wherein providers noted the Veteran had a diagnosis of, and was being treated for, migraine headaches. Thus, new and material evidence has been received, particularly pertaining to evidence of a current disability, and therefore the claim for service connection for a migraine or tension headache disability is reopened. REASONS FOR REMAND A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only conditions that are recorded in physical examination reports are to be considered as noted. Paulson v. Brown, 7 Vet. App. 466 (1995). The Veteran’s claim for service connection for a headache condition has been denied by the RO as having pre-existed the Veteran’s active service. This determination was based on an August 1, 1994 service treatment note where a provider stated the Veteran had a history of migraine headaches predating her active service. This August 1994 note provided no explanation for the statement that the Veteran’s migraines predated service, and the Veteran testified before the Board in November 2017 that her headaches began in service. Moreover, the Veteran’s December 1993 enlistment examination and report of medical history did not note a history of any headache conditions and the examiner found the Veteran to be neurologically normal. A September 2014 VA examiner stated that the Veteran’s migraine headaches pre-existed service, presumably based upon the August 1994 treatment note discussed above, as the examiner quoted this note with added emphasis elsewhere in his report. Further, this examiner opined that the Veteran’s pre-existing migraines were not aggravated by her service, but provided no explanation for this conclusion. As such, a new VA headaches examination is needed with sufficient opinions rendered on the pre-existing nature, if any, of the Veteran’s headache condition and its aggravation during service. Further, the Veteran testified before the Board that she has treated at VA for her service-connected disabilities and migraine headaches since leaving active service, but the VA treatment records currently associated with the claims file are incomplete. None have been obtained since the Veteran underwent VA examinations in 2014, and, before that time, the records associated with the claims file are not for continuous periods of treatment. In fact, the 2014 VA headaches examiner discussed specific treatment records which are missing from documents in the claims file which otherwise would appear to contain VA treatment records from that time. As such, the Veteran’s entire VA treatment record should be obtained from the time she separated from active service, to ensure that all relevant records are available for review by the Board before it can render a decision on these claims. In addition, the Veteran also testified that, during the time between her active service periods, her husband was in active service and she sought medical treatment for headaches at a military hospital in Norfolk, Virginia where they were stationed. These records should also be obtained. Next, the Veteran’s September 2012 Social Security Administration (SSA) decision awarding disability benefits is associated with the claims file, but the complete SSA file, including the medical records upon which SSA relied in making its determination, is not. These records should also be obtained. The SSA decision also discusses private treatment records SSA reviewed pertaining to the Veteran’s service-connected disabilities, but no private treatment records are associated with the claims file. These records should also be obtained. Finally, because a decision on the remanded issue of service connection for a headache condition could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. For that reason, and because of the relevance of records being obtained on remand pertaining to the issue of entitlement to TDIU, this issue is also remanded. The matters are REMANDED for the following action: 1. Obtain VA treatment records from June 2007, when the Veteran separated from active service, through the present. 2. Contact the Veteran and ask her to identify the military hospital where she was treated in Norfolk, Virginia between November 1995 and July 1999. Obtain the proper authorization from the Veteran, if necessary, for the records to be released to VA. Obtain medical records from the identified facility from November 1995 through July 1999. 3. Obtain from the SSA a copy of its decision(s) awarding the Veteran disability benefits, as well as copies of all medical records upon which it relied in rendering its decision(s). 4. Request the Veteran identify all private treatment providers and facilities where she has received treatment for her headaches and service-connected disabilities, to include Emerald Coast Neurology and any other private treatment providers mentioned in the SSA September 2012 decision. Request the Veteran submit signed authorizations for release of medical records or provide the treatment records to VA for each provider identified for all treatment obtained since the Veteran separated from active service in June 2007 through the present. Any records obtained should be added to the claims file. 5. After the development requested above has been completed, schedule the Veteran for a VA headaches examination. The examiner should diagnose any headache condition, to include migraines and tension headaches, that the Veteran currently has or has had at any time during the appeal period and respond to the following for each disability diagnosed: (a.) Did the Veteran’s headache condition clearly and unmistakably pre-exist her active service? Why or why not? (b.) If the answer to the above question is “yes,” was the condition clearly and unmistakably not aggravated by the Veteran’s active service (meaning that it was not permanently aggravated beyond the natural progression of the condition)? Why or why not? (c.) If the answer to either of the above questions is “no,” is it at least as likely as not (50 percent or greater) that the headache condition either began during or was otherwise caused the Veteran’s military service? Why or why not? (d.) What functional limitations on employment, if any, does the headache condition cause? (Continued on the next page)   In answering these questions, the examiner should specifically consider the Veteran’s statements made about her headache condition while in service, the Veteran’s statements made in support of her claim, and the Veteran’s November 2017 Board hearing testimony. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel