Citation Nr: 18140002 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-02 005 DATE: October 2, 2018 ORDER The issue of whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for headaches, is reconsidered. REMANDED Entitlement to service connection for headaches, to include as secondary to service-connected headaches, is remanded. FINDING OF FACT Relevant service department records that were available at the time of the August 2011 rating decision denying service connection for headaches were associated with the claims file thereafter. CONCLUSION OF LAW The criteria for reconsideration of the claim of entitlement to service connection for headaches have been met. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.156(c) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Navy from December 1967 until November 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran initiated an appeal regarding the issue of entitlement to an initial compensable evaluation for bilateral hearing loss, but did not perfect the appeal. In July 2014 the Veteran filed a Notice of Disagreement (NOD). The issue was addressed in a November 2015 statement of the case (SOC). In a January 2016 substantive appeal, the Veteran indicated that he read the SOC and that he was only appealing the issue of entitlement to service connection for headaches. Accordingly, the issue of entitlement to an initial compensable evaluation for bilateral hearing loss is not in appellate status, and no further consideration is necessary. In his January 2016 substantive appeal the Veteran declined a Board hearing before a Veterans Law Judge (VLJ). The issues of entitlement to service connection for headaches, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Claim to Reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, 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). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). In a November 1974 rating decision, it appears the RO denied service connection because the pre-existing headaches were not aggravated by service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In an August 2011 rating decision, the RO denied service connection because there was no in-service disease, event, or injury. Additionally, the RO stated the headaches were not incurred in nor caused by active military service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the August 2011 rating decision included the Veteran’s service treatment records (STRs) from December 1967 to October 1969, VA treatment records, and the Veteran’s DD214. Evidence submitted after the August 2011 rating decision includes the Veteran’s service personnel records (SPRs), additional STRs, lay statements, and a VA examination and opinion report. In February 2014 the VA received SPRs and additional STRs. The records included relevant information regarding the Veteran’s reserve status after active duty discharge, correction to the Veteran’s DD214, and relevant transfer orders. Thus, the record shows that additional and relevant service department records were added after the August 2011 rating decision. Those records existed at the time the Veteran’s claim was previously denied and had not yet been associated with the claims file. Accordingly, the Veteran’s claims are reconsidered and new and material evidence is not necessary. 38 C.F.R. § 3.156(c). REASONS FOR REMAND Entitlement to service connection for headaches. Remand is required for an adequate examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran alleges that his headaches had onset during active duty and were aggravated by his service-connected tinnitus. The Veteran received a VA examination in November 2015. The Veteran alleges his service connected tinnitus is making the headaches worse. The examiner opined that the headaches were not aggravated by tinnitus. The examiner must address direct service connection. Accordingly, remand is required. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his headaches. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the headaches had onset in, or are otherwise related to, active military service. The examiner must presume that headaches did not pre-exist service. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the headaches were caused or aggravated by tinnitus. The examiner must specifically address the Veteran’s assertions of in-service headaches. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel