Citation Nr: 18140659 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-17 950 DATE: October 4, 2018 ORDER New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for migraine headaches and service connection for migraine headaches is granted. REMANDED Service connection for bilateral lower extremity neuropathy, to include as secondary to a service-connected disability, is remanded. Timeliness of a February 2017 appeal regarding the August 2013 denial of an initial rating higher than 10 percent for gastroesophageal reflux disease (GERD); denial of an effective date earlier than August 30, 2013 for the grant of service connection for GERD; and denial of service connection for morbid obesity, fatty liver, B12 deficiency, sarcoidosis, sleep apnea, hypertension, diabetes mellitus, Cushing's syndrome, kidney stones, serum sickness, right ankle arthritis, left ankle arthritis, hypercholesterolemia, allergies, a bilateral eye disorder, and gout is remanded. FINDINGS OF FACT 1. In a final January 1996 rating decision, service connection for migraine headaches was denied. 2. Evidence added to the record since the final January 1996 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for migraine headaches. 3. Resolving all doubt in his favor, the Veteran has a current diagnosis of migraine headaches which have been related to a service-connected disability and/or have been continually present since that time. CONCLUSIONS OF LAW 1. The January 1996 decision that denied service connection for migraine headaches is final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for migraine headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for the establishment of service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1994 to November 1995. This matter comes before the Board of Veterans’ Appeals (Board) from August 2014 and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Specifically, in the August 2014 rating decision, the RO granted service connection for GERD, assigning an initial 10 percent disability rating effective August 30, 2013 and denied service connection for insomnia, morbid obesity, fatty liver, B12 deficiency, sarcoidosis, sleep apnea, hypertension, diabetes mellitus, Cushing’s syndrome, kidney stones, serum sickness, right ankle arthritis, left ankle arthritis, hypercholesterolemia, allergies, a bilateral eye disorder, and gout. In the December 2014 rating decision, the RO denied service connection for bilateral lower extremity neuropathy and found that new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for migraine headaches. Also, in an August 2017 rating decision, the RO granted service connection for major depressive disorder, assigning a 70 percent disability rating effective May 4, 2014; continued a 10 percent disability rating for GERD; and denied service connection for allergies, B12 deficiency, a bilateral eye condition, Cushing’s syndrome, diabetes mellitus, fatty liver, gout, hypercholesterolemia, hypertension, kidney stones, left ankle arthritis, morbid obesity, right ankle arthritis, sarcoidosis, serum sickness, and sleep apnea. In September 2017, the Veteran entered a notice of disagreement (NOD) with the Agency of Original Jurisdiction (AOJ) as to these decisions. When an NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). However, a review of the claims file shows that the AOJ has acknowledged receipt of the NOD and is actively developing that claim. Accordingly, the Board declines to exercise jurisdiction over these claims for Manlincon purposes as no such action on the part of the Board is warranted at this time. I. New and Material Evidence Analysis The Veteran submitted an original claim for service connection for migraine headaches in December 1995. By rating decision dated in January 1996, the RO denied service connection for migraine headaches. Specifically, the RO noted that there was no evidence of a chronic migraine headache disability during the Veteran’s military service and concluded that service connection was not warranted as the claim was not well-grounded. The January 1996 decision advised the Veteran of his appellate rights, however, no further communication regarding his claim of entitlement to service connection for migraine headaches was received until October 2014, when VA received an application to reopen such claim. Therefore, the January 1996 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the evidence received since the January 1996 rating decision is new and material. Specifically, since such decision, additional evidence addressing the bases of the prior final denial has been received, to include evidence of a current disability of a chronic migraine headache disorder, a private medical opinion relating the Veteran’s migraine headaches to his service, as well as the Veteran’s competent statements regarding experiencing migraine headaches since service, which is also presumed credible for the purposes of reopening a claim. The prior denial in January 1996 was based upon a finding that the Veteran did not have a chronic headache disorder related to service. The evidence received since such time indicates that he does have a chronic headache disorder and that it is related to his service. Therefore, the Board finds that the evidence added to the record since the final January 1996 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for migraine headaches. Consequently, the Board finds that new and material evidence has been received to reopen the claim for service connection for migraine headaches. II. Service Connection Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). To establish service connection for a disability on a secondary basis, there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (2006). Additionally, for claims received after October 10, 2006, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected disorder, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he began experiencing headaches in service and that his headaches have continued since service. Service treatment records confirm that the Veteran first experienced headaches during service. Specifically, while the Veteran denied experiencing “frequent or severe headaches” in a December 1993 report of medical history (prior to his enlistment), the Veteran reported that he did experience “frequent or severe headaches” in an August 1995 report of medical history in conjunction with his separation examination. As above, approximately one year after his discharge from service, the Veteran submitted a claim for service connection for migraine headaches. In support of his claim, the Veteran submitted a July 2016 disability benefits questionnaire and statement from Dr. H.S. Significantly, Dr. H.S. diagnosed a chronic migraine headache disability. Dr. H.S. noted the Veteran’s in-service complaints of headaches and allegation of continued headaches since service. Dr. H.S. also opined that the Veteran’s migraine headaches have been permanently aggravated by his service-connected tinnitus and depressive disorder. As rationale for this opinion, Dr. H.S. cited medical treatise evidence noting that damage to the auditory system resulting in tinnitus can also cause migraines. Dr. H.S. also cited medical treatise evidence noting mental disorders cause and aggravate headaches. Upon review of the evidence, the Board finds that in affording the Veteran the benefit of the doubt, service connection for migraine headaches is warranted. In this regard, the Board notes that service treatment records show that the Veteran began experiencing frequent and/or severe headaches during service and continued to report experiencing headaches following his discharge from military service. Furthermore, the record contains a medical opinion relating the Veteran’s current migraine headaches to the Veteran’s service-connected tinnitus and major depressive disorder. There is no contrary medical opinion of record. Given the evidence of in-service disability and continuing after service; the July 2016 positive nexus opinion from Dr. H.S.; and the Veteran’s statements of continuing symptomatology, the Board finds that the evidence supports a grant of service connection. REASONS FOR REMAND 1. Service connection for bilateral lower extremity neuropathy, to include as secondary to a service-connected disability, is remanded. With regard to the neuropathy claim, a review of the claims file shows that the Veteran was diagnosed with diabetic neuropathy of the lower extremities in February 2015. As above, in an August 2017 rating decision, the RO, in part, denied service connection for diabetes mellitus, the Veteran has submitted an NOD as to this decision, and the AOJ has acknowledged receipt of the NOD/is actively developing this claim. As it appears that the Veteran’s bilateral lower extremity neuropathy is secondary to his diabetes mellitus, the Board finds that the neuropathy claim is inextricably intertwined with the diabetes claim as the outcome of the latter claim may impact whether service connection for bilateral lower extremity neuropathy is warranted. Therefore, adjudication of the neuropathy claim must also be deferred pending the outcome of such claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 2. Timeliness of a February 2017 appeal regarding the August 2014 denial of an initial rating higher than 10 percent for GERD; an effective date earlier than August 30, 2013 for the grant of service connection for GERD; and service connection for morbid obesity, fatty liver, B12 deficiency, sarcoidosis, sleep apnea, hypertension, diabetes mellitus, Cushing's syndrome, kidney stones, serum sickness, right ankle arthritis, left ankle arthritis, hypercholesterolemia, allergies, a bilateral eye disorder, and gout is remanded. With regard to the timeliness issue, as above, in an August 2014 rating decision, the RO, in part, granted service connection for GERD, assigning an initial 10 percent disability rating effective August 30, 2013 and denied service connection for morbid obesity, fatty liver, B12 deficiency, sarcoidosis, sleep apnea, hypertension, diabetes mellitus, Cushing’s syndrome, kidney stones, serum sickness, right ankle arthritis, left ankle arthritis, hypercholesterolemia, allergies, a bilateral eye disorder, and gout. The Veteran submitted a timely NOD as to this decision and was issued an SOC in May 2016. The Veteran submitted a substantive appeal, VA Form 9, in February 2017 and, in April 2017 correspondence, the Veteran was informed that his Form 9 was not accepted as it was untimely. Thereafter, in April 2017 (within one year of notification of the April 2017 timeliness determination), the Veteran entered an NOD with the AOJ as to this decision, arguing that neither he nor his representative received a copy of the May 2016 SOC and, thus, his April 2017 Form 9 was timely. As above, when there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to an SOC. See 38 C.F.R. § 19.26. Unfortunately, the AOJ has not yet acknowledged receipt of the NOD and does not appear to be actively developing this claim. Thus, remand for issuance of an SOC on this issue is necessary. Manlincon, 12 Vet. App. at 238. However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matters are REMANDED for the following action: 1. Continue to process the Veteran’s appeal regarding the August 2017 denial of service connection for diabetes mellitus. 2. An SOC on the issue of timeliness of a February 2017 appeal regarding the August 2014 denial of an initial rating higher than 10 percent for GERD; an effective date earlier than August 30, 2013 for the grant of service connection for GERD; and service connection for morbid obesity, fatty liver, B12 deficiency, sarcoidosis, sleep apnea, hypertension, diabetes mellitus, Cushing’s syndrome, kidney stones, serum sickness, right ankle arthritis, left ankle arthritis, hypercholesterolemia, allergies, a bilateral eye disorder, and gout should be issued to the Veteran. He should be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to this issue is perfected within the applicable time period, then such should return to the Board for appellate review. 3. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel