Citation Nr: 18147178 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-30 522 DATE: November 2, 2018 ORDER Service connection for headaches is denied. The claim for service connection for an acquired psychiatric disability is reopened. FINDINGS OF FACT 1. The Veteran does not have a current chronic headache disorder. 2. An October 1980 rating decision denied service connection for an acquired psychiatric disability; the Veteran did not appeal this decision, or provide new and material evidence within one year, and it became final. 3. New and material evidence has been received since the 1980 denial of service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. New and material evidence has been received; the criteria to reopen the claim of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1970 to September 1972 and from February 1974 to October 1975. This matter is before the Board on appeal from a May 2014 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including headaches (to the extent they are an organic disease of the nervous system) and psychoses, that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b) For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. The United States Court of Appeals for the Federal Circuit has clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). New and Material Evidence In general, RO decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, 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. 38 U.S.C. § 5108. “New” evidence is existing evidence not previously submitted to agency decision makers. “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 prior 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 Court of Appeals for Veterans Claims has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining 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). 1. Service connection for headaches The Veteran claims a service connected headache condition. The Service Treatment Records (STRs) show one documented complaint of headaches in connection with a URI (upper respiratory infection) during his first period of service. He noted affirmatively that he had frequent or severe headaches at the time of his August 1975 separation examination, and it was annotated that the headaches were associated with nervousness and medication (Serax) was prescribed. The Veteran presented to a VA clinic for a headache and lightheadedness in October 2013 which the medical evidence suggested was related to high blood pressure. The nursing triage assessment noted elevated blood pressure readings, and a follow-up blood pressure check was recommended. There was no further mention of headaches in the Veteran’s various treatment records. The Board also notes that in August 2013, the Veteran reported “no headache or seizure” during a clinical evaluation. A VA examiner conducted a review of the Veteran’s records, including the VA treatment records, to provide a medical opinion on this claim. The examiner reviewed the VA claims file, to include the notation of “frequent or severe headache with nervousness” in service and determined that the Veteran did not have a chronic headache disorder in service. Further, the examiner found that “the most recent clinical records reviewed do not document that this veteran currently has a chronic headache condition.” The examiner also found “no evidence of residual headache related to the single documentation of headache associated with nervousness in his STRs” and “no evidence to support that the Veteran has headaches related to a current mental health disorder.” There is no medical evidence in conflict with the above opinion. Thus, the preponderance of the medical evidence is against a finding that the Veteran has had a headache disorder at any time during this appeal. The preponderance of the evidence fails to show that there is functional impairment in earning capacity as a result of his claimed headaches. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board recognizes that the issue of service connection for a psychiatric disability has been remanded, but does not find that the headache issue is inextricably intertwined with the pending psychiatric claim. This is so because even if the Veteran’s current psychiatric disability is found to be related to service, the 2014 VA medical opinion provider concluded that no current headache disorder exists such that it could be related to or aggravated by his current mental health disorder. While the Board acknowledges and does not doubt the sincerity of the Veteran’s statements alleging that he does in fact have such a condition, the presence and etiology of such a condition is a question beyond the scope of lay observation, and the Board must look to the medical opinion in the record. Therefore, the claim is denied. 2. Service connection for an acquired psychiatric disability The STRs include a November 1970 enlistment examination from his first period of service which was reflected a normal psychiatric clinical evaluation and the Veteran reported depression or excessive worry. Treatment records are silent as to psychiatric complaint, treatment, or diagnosis during his first period of service, and his July 1972 separation examination reflected a normal psychiatric clinical evaluation. His second period of service entrance examination in December 1973 reflected a normal psychiatric clinical evaluation and a recommendation of a neuropsychiatric “N-P” consult. The physician’s summary noted “nerves—situational—not significant” and noted under “N-P consult (nerves)” that the Veteran had smoked marijuana up to 2 months ago. The neuropsychiatric consult found the Veteran to be a productive person, noting the Veteran denied dependence, addiction, or legal problems, and recommended “S-1”. In August 1974 the Veteran was noted to have anxiety secondary to past drug abuse and reported he was drinking alcohol to calm himself. Later that month he reported chest pain and feelings of inability to cope, reporting that he had recently attacked his girlfriend with a razor. The provisional diagnosis was inadequate personality. He was hospitalized for approximately 5 days in August 1974 with diagnosis of antisocial personality and improper use of drugs. The record noted that it was possible that “the pt’s [secondary] gain here involves avoiding accountability for an assault [approximately] 2 wks ago.” In September 1974, the Veteran was diagnosed with antisocial personality disorder. A December 1974 record noted that the Veteran had a phobia reaction and neurosis due to phobia of death “and is paranoid his heart will stop.” An April 1975 record noted that when he returned to the United States, he had increased in alcohol intake and took medication belonging to another. An April 1975 assessment found no evidence of drug or alcohol abuse but instead referred the Veteran to mental health. A record from the William Beaumont Army Medical Center (WBAMC) noted that the Veteran had been referred to that facility in May 1975 for depressive reaction, anxiety manifested by somatic complaints, hyperventilation, low self-esteem and some paranoid ideation; that he had attended the psychiatric day hospital on an irregular basis for 4 months, receiving group therapy, milieu therapy, 1:1 counseling and chemo therapy as well as an eight-day admission for acute anxiety reaction. A June 1975 record noted somatic complaints, flight of ideas, and paranoid ideation (“fears being druged [sic] at chow or [with] glue on envelopes”). He also admitted to hallucinations. A July 1975 record noted the Veteran was treated with Valium. A September 1975 mental status evaluation found no mental illness noting a WBAMC psychiatrist had diagnosed the Veteran with a character and behavior disorder. It was also noted that the Veteran had reenlisted in order to avoid court action and that the Veteran acknowledged assaulting several women. A June 1974 record noted that the Veteran prior to his second period of service was apprehended for crimes involving robberies of taverns and soda machines and that he “made a deal with the judge to return into the Army to avoid prosecution.” During his August 1975 separation examination, he reported frequent or severe headaches, pain or pressure in the chest, frequent indigestion, and depression or excess worry that were all annotated to be associated with nervousness and medication (Serax) was prescribed. Following service, the Veteran received psychological treatment on numerous occasions at a VA clinic, and in August 1980 he received a diagnosis of passive aggressive personality disorder with explosive features. In the October 1980 Rating Decision, the RO denied service connection for an acquired psychiatric disorder (then claimed as a nervous condition), finding the Veteran had a “long-standing personality disorder” not due to service. Private and VA records indicate that the Veteran received mental health treatment regularly from 2013 to 2016. He was diagnosed with bipolar disorder as early as 2013, and received treatment for the disorder throughout the subsequent several years. The Veteran also reported that he received private medical treatment while he had employer-provided health insurance until September 2013 when he lost his job and sought treatment at the VA. There are no records from this treatment associated with the claims file. The Veteran’s diagnosis of bipolar disorder constitutes new and material evidence. It was not of record at the time of the 1980 rating decision, and it relates to whether the Veteran has a current compensable disability under applicable law, which was not established previously. Therefore, the claim is reopened. REMANDED Entitlement to service connection for an acquired psychiatric condition is remanded. REASONS FOR REMAND There is no current medical opinion regarding the etiology of the Veteran’s diagnosed bipolar disorder as it relates to service. Additionally, the Veteran contends he received private treatment for his mental health, but those records are not associated with the claims file. As such, further development is necessary. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should undertake appropriate action to obtain any outstanding records pertinent to the Veteran’s claims, to include outstanding VA and non-VA treatment records. 2. After the action requested in paragraph (1) is completed, please schedule the Veteran for an examination to determine the nature and etiology of any current psychiatric disorder, to include bipolar disorder. The Veteran’s claims-file must be reviewed by the examiner in conjunction with the examination. Based on review of the record, the examiner should provide an opinion that responds to the following: a. Please identify, by diagnosis, all psychiatric disabilities diagnosed since this claim was filed in 2013. b. As to each such diagnosed disorder, and to include bipolar disorder, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disorder had its onset in service or is otherwise related to the Veteran’s service? Please consider and discuss as necessary the STRs reflecting 2 psychiatric hospitalizations and various other outpatient treatment and mental health assessments during the Veteran’s second period of service. c. If a psychosis is diagnosed, is it at least as likely as not that such disorder was first manifested in service or within the first post-service year. Please consider and discuss as necessary the STRs noting paranoid ideation and hallucinations. In addressing the above question, the examiner should consider and discuss as necessary the Veteran’s history of mental health treatment during and following service and his recent diagnosis and treatment for bipolar disorder. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to   speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. McCormick, Associate Counsel