Citation Nr: 18153448 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-47 606 DATE: November 27, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for headaches, claimed as tension, vascular, and migraine headaches, is granted. REMANDED Entitlement to service connection for a headache disability is remanded. FINDINGS OF FACT 1. A September 1972 rating decision denied the Veteran’s claim for entitlement to service connection for a headache disability. 2. Evidence received since this rating decision includes private treatment records and a VA examination. This evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence sufficient to reopen the claim of entitlement to service connection for a headache disability has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1971 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA), Hartford, Connecticut Regional Office (RO). Jurisdiction of this matter is currently with the RO in Indianapolis, Indiana. The Veteran maintains that sufficient evidence has been submitted to reopen his previously denied claim for entitlement to service connection for a headache disability. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105, 7266; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence means existing 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Id. at 117-18. The Veteran’s claim for a headache disability was originally denied in a September 1972 rating decision, as there was no evidence of a current disability. As this decision was not challenged, it has become final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen his claim for entitlement to service connection for a headache disability in September 2013, which was denied in the June 2014 rating decision currently on appeal. Evidence received since this rating decision includes private treatment records and a VA examination establishing a current diagnosis for migraine and tension headaches. As this evidence relates to a previously unestablished element of service connection, a current disability, and is not cumulative or redundant, the Board finds it sufficient new and material evidence to reopen the Veteran’s claim. See 38 C.F.R. § 3.156(a). Accordingly, the Veteran’s claim for entitlement to service connection for a headache disability is reopened. REASONS FOR REMAND Although there is sufficient new and material evidence submitted to establish that the Veteran has a current headache disability, the Board finds that a remand is warranted to obtain supplemental medical opinions regarding a pre-existing headache disability. The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. To rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Upon review of the Veteran’s service treatment records, there were no headache disabilities noted on the December 1970 enlistment examination. However, the Veteran was treated numerous times in-service for reports of headaches. A notation on an August 1971 hospital report indicated that the Veteran experienced migraines for 10 years. Further, the Veteran reported on his June 1972 separation report of medical history that he experienced frequent or severe headaches. A notation from the examining physician indicated that the Veteran was in an auto accident in 1960 and sustained an injury to his head, as well as treatment for a concussion. The Veteran was provided a VA examination for his headache disability in April 2014, where he was provided a diagnosis of migraine and tension headaches. The Veteran reported that he believed that the headaches began in service, and that he was treated on numerous occasions during service for his headaches. The examiner opined that it was less likely than not (less than a 50 percent probability) that the headache disability incurred in or was caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that the Veteran’s current headache disorder is a continuation of his life-long headaches which began prior to service. The examiner did not provide any opinions as to whether the Veteran’s headache disability was aggravated by service. Thus, the Board finds that a remand is warranted to obtain an addendum opinion on whether the Veteran’s headache disability clearly and unmistakable existed prior to service and was not aggravated beyond its natural progression during service. Accordingly, this matter is REMANDED for the following action: Forward the Veteran’s electronic claims file to an appropriate examiner for supplemental opinions as to the nature and etiology of the Veteran’s headache disability. It is left to the examiner’s discretion whether to reexamine the Veteran. Following the review of the claims file, the examiner should provide opinions on the following: a) Whether the Veteran had a headache disability that clearly and unmistakably existed prior to service AND was not aggravated beyond its natural progression during service. The examiner should address the multiple in-service reports of, and treatment for, headaches. b) If the examiner finds that the Veteran’s headache disability did not clearly and unmistakably exist prior to service, opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current headache disability was caused by or related to the headaches reported, and treated, in service. (Continued on the next page) A complete rationale for all opinions should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel