Citation Nr: 18154296 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-12 241 DATE: November 29, 2018 ORDER The petition to reopen the claim of entitlement to service connection for migraine headaches based on the submission of new and material evidence is granted. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. A March 2010 rating decision denied, in pertinent part, the claim of entitlement to service connection for migraine headaches. The Veteran did not appeal or submit new and material evidence within one year. 2. The evidence received since the March 2010 rating decision by itself, or in conjunction with previously considered evidence, does not related to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for migraine headaches. CONCLUSIONS OF LAW 1. The March 2010 rating decision denying service connection for migraine headaches is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence sufficient to reopen the previously denied claim of service connection for migraine headaches has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2003 to February 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Additional VA treatment records dated through April 2018 were added to the record subsequent to a February 2016 statement of the case (SOC) and April 2016 certification to the Board without waiver of Agency of Original Jurisdiction (AOJ) consideration. In October 2018, the Veteran was notified that additional evidence which was not previously considered in a decision by the AOJ has been received, and that he had a right to have the AOJ review them prior to the Board’s review of the case, or alternatively, he could waive his right to AOJ review. In response, the Veteran, notified the Board that he wished to waive AOJ consideration. 1. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for migraine headaches 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 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). 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 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). 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. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a March 2010 rating decision, the RO denied service connection because the evidence did not show a current diagnosis of headaches. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the March 2010 rating decision includes the Veteran’s service treatment records (STRs). July 2003 STRs reflect the Veteran presented for followup after experiencing headaches, body aches, fever, and productive cough. At that time, the Veteran was diagnosed with resolving upper respiratory infection (URI). In June 2006, the Veteran presented with complaints of body aches, fever, cough, nausea, and mild headache. At that time, the Veteran was diagnosed with viral syndrome. Evidence submitted after the March 2010 decision includes a 2014 VA examination with 2016 addendum, private medical records, and lay statements from the Veteran and his wife. The 2014 and 2016 VA examination and opinions provide negative nexus opinions, but noted diagnoses of headaches. An April 2009 private medical record reflects a diagnosis of migraine headaches. In a January 2014 submission, the Veteran’s spouse reported observing the Veteran experience headaches in and since service. The Board finds that new and material evidence has been presented. The evidence, including VA examinations, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a current disability See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. REASONS FOR REMAND Entitlement to service connection for headaches. Remand is required for an adequate VA examination and opinion. Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An opinion based on an inaccurate factual premise should be discounted entirely. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The failure to consider the lay statements regarding matters on which he is competent to testify to renders an examiner’s opinion inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). A VA examination was provided in November 2014. The examiner opined that the Veteran’s migraine headaches were less likely than not incurred in or caused by service, reasoning that although post-service medical treatment records reflect a diagnosis of migraine headaches, there is no evidence of headaches documented in service. A January 2016 VA addendum opinion was obtained. The examiner opined that the evidence of record does not support a contention that migraine headaches were incurred in or caused by service, reasoning that the headaches documented in the Veteran’s STRs were a symptom of his common cold and not a separate disability, i.e., migraines. The examiner considered the headaches described by the Veteran and documented in his STRs. The Board finds the examination and opinions inadequate as the examiners did not address the Veteran’s and the Veteran’s spouse’s statements that he had headaches during and after service. Accordingly, an additional examination and opinion must be obtained. Although the Veteran’s service entrance examination was silent for any headaches, the record suggests that the headaches pre-existed service. The Board finds, however, that there is not clear and unmistakable (undebatable) evidence that the headaches pre-existed service. Accordingly, any opinion provided must presume the Veteran was sound upon entrance. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his headaches. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that headaches had onset in, or are otherwise related to, active military service. The examiner must specifically address the following: 1) the Veteran’s lay statements; 2) the Veteran’s spouse’s lay statements; 3) the STRS; and 4) the 2014 and 2016 VA examination and opinions. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel