Citation Nr: 18144970 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-01 855 DATE: October 25, 2018 ORDER The petition to reopen the previously denied claim for entitlement to service connections for headaches is granted. REMANDED Entitlement to service connections for headaches is remanded. FINDINGS OF FACT 1. In a November 1993 rating decision, a Department of Veterans Affairs (VA) regional office (RO) denied service connection for headaches. The decision was not appealed. 2. Evidence received since the November 1993 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the Veteran’s claim for service connection for headaches. CONCLUSIONS OF LAW 1. The November 1993 rating decision denying the Veteran’s claim for service connection for headaches became final. 38 U.S.C. 7105 (2012); 38 C.F.R. §§ 20.302 (2018). 2. New and material evidence has been received, and thus the criteria for reopening the Veteran’s claim to service connection for headaches have been met. 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connections for headaches is reopened. The Veteran served in the Navy from June 1989 to August 1993. He filed his initial claim for Department of Veterans Affairs (VA) disability benefits in August 1993, seeking service connection for headaches. He was denied service connection for his headaches in a November 1993 rating decision, which explained that the examination had not resulted in a diagnosis of headaches, and the service treatment records (STRs) had not shown that his headaches were a chronic disability. The Veteran did not appeal this decision and it became final. In July 2013 the Veteran again sought VA disability benefits for headaches. Noting that the Veteran’s claim had been denied previously in a final decision and that he had not submitted new and material evidence necessary to support reopening, in June 2014 a VA regional office (RO) denied reopening the claim. The Veteran appealed, and testified in an August 2015 hearing before a decision review officer (DRO) that he had experienced headaches persistently since his release from active duty. In September 2015 the Veteran underwent a VA examination for his headaches, at which time the examiner diagnosed migraine headaches. Noting, however, that the headaches described in the STRs were thought to stem from a cervical strain following a 1991 motor vehicle collision and had resolved; that there was no record of treatment for headaches since November 1992; and that the headache symptoms described in the STRs differed from the symptoms as currently described, the examiner opined that there was less than a 50 percent chance that the Veteran’s headaches were connected with his service. Based largely on this opinion, in November 2015 VA denied the Veteran’s claim. The decision now reaches the Board of Veterans’ Appeals (Board). As an initial matter, the Board must consider the question of whether new and material evidence has been received sufficient to reopen the Veteran’s claim, because that issue goes to the Board’s jurisdiction to adjudicate the underlying claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to reopen a claim that has been previously considered and denied in a final and binding decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In this case, the Veteran’s August 2015 DRO hearing testimony and the results of the September 2015 VA examination have not previously been before VA, relate to an unestablished fact necessary to substantiate the claim—namely, the character and persistence of the headaches—and raise a reasonable possibility of substantiating the claim by potentially showing a connection between the Veteran’s service and his current headaches. Hence, the Board finds that new and material evidence has been received and that reopening is warranted. REASONS FOR REMAND Entitlement to service connection for headaches is remanded. The Board notes that the Veteran has consistently reported blurring of vision associated with his headaches. In the September 2015 examination, however, the examiner commented that the Veteran’s in-service headaches were characterized by “left frontal and left eye pain which resolved”; she then distinguished the Veteran’s in-service headaches from his current ones on the basis of a differing description of symptoms. The Board notes, however, that in his descriptions of his headaches following the collision, the Veteran identified not left eye pain, but rather left eye blurred vision. Moreover, the Veteran continued to report blurred vision as associated with his headaches. The examiner’s mischaracterization of the Veteran’s symptomatology and her failure to assess the Veteran’s headaches as occurring in conjunction with blurred vision represent a significant deficiency given the central question of whether the Veteran’s in-service headaches were migraine headaches. These deficiencies erode the reliability of the examiner’s conclusions as they concern whether the Veteran’s in-service headaches are related to his current ones. The Board notes further that when presenting for treatment approximately three weeks after the collision, the Veteran reported a history of migraine, including an episode that occurred in the preceding April or May, prior to the collision. The Board also notes that the examiner did not address the Veteran’s assertion that his headaches have been ongoing since service, which he made at his DRO hearing. Thus, the medical examination and opinion were not predicated on a full understanding of the Veteran’s claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical opinion is adequate when it is based on consideration of the Veteran’s prior medical history and examinations and describes the disability in sufficient detail so that the Board’s “evaluation of the claimed disability will be a fully informed one.” Id. A medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458 (1993). In light of the deficiencies identified above, the Board finds the September 2015 examination and opinion inadequate for rating purposes and will remand for an additional examination and opinion. The matter is REMANDED for the following action: 1. Undertake appropriate efforts to obtain any relevant outstanding VA or private medical records, and associate them with the claims file. 2. Thereafter, afford the Veteran a VA examination to determine the nature and etiology of his headaches. The Veteran’s claims file, including this remand, must be provided to the examiner and the examiner should note his or her review of the file. The examiner must obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination must be noted in the report of the evaluation. Any testing deemed necessary must be performed. The examiner should offer comments and an opinion addressing whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s headaches began during the Veteran’s service, or are causally or etiologically related to service. The examiner must specifically discuss the Veteran’s contentions regarding the in-service onset of headaches during service and their continuity thereafter in the context of any negative opinion. The examiner is advised that the Veteran is competent to report history and symptoms and that those reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion or other information needed to provide the requested opinion. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel