Citation Nr: 18147228 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-42 423 DATE: November 2, 2018 ORDER As new and material evidence has not been submitted, the claim of service connection for migraine headaches as secondary to pterygium of the left eye, bilateral pingueculae is not reopened. FINDINGS OF FACT 1. A May 2011 rating decision denied the Veteran’s original claim for service connection for migraine headaches as secondary to pterygium of the left eye, bilateral pingueculae. The Veteran did not file an appeal within the required one-year period following the decision and the May 2011 rating decision is final. 2. The material added to the claims file subsequent to the May 2011 rating decision is cumulative or redundant of that previously considered and does not include evidence that relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The May 2011 rating decision that denied service connection for migraine headaches as secondary to pterygium of the left eye, bilateral pingueculae is final. 38 U.S.C. §7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received subsequent to the May 2011 decision denying service connection for migraine headaches as secondary to pterygium of the left eye, bilateral pingueculae is not new and material and the claim is not reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to December 1988. This matter comes before the Board on appeal from the Department of Veterans’ Affairs (VA) Regional Office (RO). The evidence received subsequent to the May 2011 decision denying service connection for migraine headaches as secondary to pterygium of the left eye, bilateral pingueculae is not new and material. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 is defined as 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(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 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 RO denied the Veteran’s claim of service connection for migraine headaches as secondary to pterygium of the left eye, bilateral pingueculae in a May 2011 rating decision. The RO found that there was no evidence of a nexus between his migraines and his service connected pterygium of the left eye, bilateral pingueculae. The evidence of record at the time of the May 2011 decision included service treatment records with the nexus opinion. In the nexus opinion, dated April 2011 the VA examiner concluded that the Veteran’s migraines were episodic and less likely than not cause by his service connected pterygium. The other service treatment records, while indicating that the Veteran had migraines, did not given any indication that they were caused by his service connected condition. Thus, the board held that the Veteran’s migraines were not service connected. The Veteran was informed of this decision and apprised of his appellate rights, but did not file a timely appeal. Therefore, the May 2011 rating decision became final. 38 C.F.R. § 20.1103. In June 2014 the Veteran requested that his claim be reopened. In his notice of disagreement, he stated that he has continued to suffer from migraines. The evidence submitted since the May 2011 rating includes additional VA treatment records dated from August 2011 to May 2015 indicating that he has continued to undergo treatment for recurrent migraines. However, there is nothing in the new records which would demonstrate a nexus between the Veteran’s migraines and his service connected condition or a material issue that had not been previously considered. It was conceded in the May 2011 rating decision that the Veteran was suffering from migraines, thus, additional records indicating that the Veteran is still receiving treatment for them is cumulative and not new or material. The Veteran also provided photographs which, while blurry, appear to show him with bandages over his eyes while serving in Egypt. However, it has been established that the Veteran received treatment for an eye condition during service and the photographs, while confirming this, do not provide any new evidence to demonstrate a reasonable nexus between his migraines and service. Thus, while the photos are new they are not material. Therefore, the application to reopen the claim for service connection for migraine headaches as secondary to pterygium of the left eye, bilateral pingueculae is denied. K. J. Alibrando Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Luby, Associate Counsel