Citation Nr: 18140113 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-39 303 DATE: October 2, 2018 ORDER New and material evidence having been received, the application to reopen a claim of entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for headaches. Entitlement to a rating in excess of 10 percent for degenerative changes, status post left knee injury. Entitlement to a rating in excess of 20 percent for mechanical low back disorder, chronic with pain and mild LOM (limitation of motion). FINDINGS OF FACT 1. The Veteran serviced on active duty from March 1987 to May 1989. 2. The Veteran has been in receipt of a 100 percent rating based on individual unemployability since September 2003. 3. In an unappealed decision in December 2007, the Board denied a claim of entitlement to service connection for headaches. 4. The evidence received since the December 2007 rating decision is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim for service connection for headaches. CONCLUSION OF LAW Subsequent to the final December 2007 rating decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for headaches. 38 U.S.C. 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). A claim of entitlement to service connection for headaches was denied in an unappealed December 2007 rating decision, and no new and material evidence was received within one year of that denial. The basis for the denial was that the disorder was neither incurred in nor caused by service. Since the December 2007 rating decision, additional VA and private treatment records and personal statements have been received. Among these records is an October 2011 primary care note that that includes chronic headaches related to the Veteran’s lumbar puncture in his primary medical history. This evidence was not of record in December 2007 and raises a reasonable possibility of substantiating the claim because it goes to the previously lacking element of a nexus to service or service-connected disability. Therefore, reopening is warranted. REASONS FOR REMAND Having reopened the claim for headaches, a remanded is needed. Records received from the Social Security Administration (SSA) note in several places that the Veteran was having headaches due to his narcotic pain relievers for a service-connected disability. Recent VA treatment notes indicated that he continued to take Morphine for pain. Therefore, an opinion is needed as to whether his headaches are caused or aggravated by pain medication taken for service-connected disability. The claims for increased ratings for left knee and back disabilities are also remanded. The most recent VA examinations for each of these claims were performed in November 2012, almost six years ago. These results are too remote to serve as a basis for determining the severity of the Veteran’s back and left knee disabilities throughout the entire appeal period. Therefore, these issues are remanded so that additional examinations may be scheduled. The matters are REMANDED for the following actions: 1. Associate any outstanding, relevant treatment notes with the claims folder. 2. Request an opinion from an appropriate examiner as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran has a headache disability as a result of pain medication taken for service-connected disabilities. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran’s competent reports of the claimed in-service injury or of symptoms experienced during active service and since. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Schedule the Veteran for an examination to assess the current nature and severity of his lumbar spine disability. The claims file must be made available to the examiner in conjunction with the examination. All indicated tests and studies should be conducted. 4. Schedule the Veteran for an examination to assess the current nature and severity of his left knee disability. The claims file must be made available to the examiner in conjunction with the examination. All indicated tests and studies should be conducted. 5. Then, readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel