Citation Nr: 18159859 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-57 186 DATE: December 20, 2018 ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a migraine headache disorder is granted, and the claim is reopened. Entitlement to service connection for a migraine headache disorder is denied. FINDINGS OF FACT 1. In a May 2002 rating decision, the claim of entitlement to service connection for a migraine headache disorder was denied because it was not caused by or related to service. 2. The evidence added to the record since the May 2002 rating decision became final relates to an unestablished fact that is necessary to substantiate the Veteran’s service connection claim. 3. The Veteran’s migraine headache disorder was not shown in service or for many years thereafter and is not related to service. CONCLUSIONS OF LAW 1. The May 2002 rating decision that denied the Veteran’s claim for entitlement to service connection for a migraine headache disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the May 2002 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for a migraine headache disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 3. The criteria for entitlement to service connection for a migraine headache disorder have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1990 to April 1991. The Board notes that the VA Form 9 submitted by the Veteran in October 2016 included two issues, a migraine headache disorder and depression with anxiety and panic attacks. In a November 2017 rating decision, the Veteran was granted entitlement to service connection for depression with anxiety and panic attacks, recharacterized as a panic disorder. Therefore, the Veteran’s migraine headache disorder is the only remaining issue currently before the Board. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). Under the relevant regulation, “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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless “patently incredible.” Duran v. Brown, 7 Vet. App. 216 (1994). In this case the Veteran is claiming entitlement to service connection for a migraine headache disorder. The Veteran’s service connection claim for a migraine headache disorder was previously denied by the RO in May 2002 on the basis that it was not caused by or related to service. She did not appeal that decision, nor did she submit any new and material evidence within a year of receiving it. Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim. After a review of the evidence submitted since May 2002 rating decision became final, the Board determines that the claims should be reopened. The evidence now includes statements from the Veteran, a written statement from a fellow soldier, an opinion from a VA examiner, and new medical treatment records, which raise the possibility that her condition is related to her active duty service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claim, it is also “material,” as it relates to an unestablished fact necessary to support the claim. Namely, it shows that the Veteran’s disorder may have been incurred in or related to her active duty service. Therefore, the claim should be reopened on this basis. Additionally, the Board acknowledges that additional service department records and service treatment records (STRs) were associated with the claims file after the May 2002 rating decision. However, insofar as there are newly obtained records which were not previously of record at the time of the May 2002 rating decision, the Board finds that these records are not relevant to the Veteran’s claim, as they do not demonstrate an in-service incident, injury, symptoms, or treatment related to the Veteran’s migraine headache disorder. Therefore, a de novo review of the record based on receipt of newly associated service department records is not appropriate in this case. 38 C.F.R. § 3.156 (c). Entitlement to Service Connection for a Migraine Headache Disorder The Veteran is claiming entitlement to service connection for a migraine headache disorder, which she asserts is related to active duty service. Specifically, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Based on the evidence of record, the Board finds that service connection is not warranted for the Veteran’s migraine headache disorder. Initially, the Board notes that the Veteran’s STRs do not exhibit symptoms of or treatment for a migraine headache disorder. During her entrance and exit examinations, there are also no indications of the symptoms of a migraine headache disorder. The records received after the May 2002 rating decision became final, while qualifying as new and material, do not establish the Shedden elements needed to show service connection. First, the Board notes that in the Veteran’s private treatment records from September 1994, she specifically denied headache symptoms. Next, the Board observes that there is a large gap in the Veteran’s discharge from active duty and the first evidence in the record regarding the Veteran’s migraine headache disorder. The migraine headache disorder is first noted 8 years after discharge from active duty in the Veteran’s August 1999 service department records related to a Gulf War Registry Exam. The Veteran stated that the migraine headaches occurred 2 to 3 times weekly with no visual disturbances. She also stated that the migraine headaches were currently less severe after she stopped taking oral contraceptives. The denial of headache in the September 1994 records and the gap from discharge to the first notation in the record supports the Board’s finding that the Veteran’s headache disorder was not incurred in-service nor is it related to active duty service. Next, the January 2000 private treatment records show the first instance of treatment for a migraine headache disorder. The Veteran stated that she was in her usual state of health until 1.5 ago when she started having recurrent headaches. The Veteran reported visual disturbances, photophobia, and sonophobia. She stated that migraine headaches occurred approximately 8 to 9 times per month and worsen close to her menstrual cycle. These records show that when seeking medical treatment, the Veteran reported that her migraine headache disorder started approximately 7 years after discharge from active duty service. Thus, the Board finds that this evidence weighs against the finding that her migraine headache disorder was incurred in or is related to active duty service. The Board acknowledges that the Veteran submitted multiple statements regarding the onset, type, symptoms, severity, and frequency of her migraine headache disorder, including in statements submitted in February and November 2013, April 2015, December 2016, and July and December 2017. In this regard, while the Veteran is not competent to make a diagnosis related to a migraine headache disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” she is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for the asserted condition weighs against the Veteran’s claims. Further, the Veteran’s treatment records contradict her assertions that her symptoms have persisted since service. Here, the Veteran’s history of headaches is inconsistent with her September 1989 and March 1991 STRs and September 1994 private treatment records, which report her denial of headaches. Further, the private medical treatment records from April 2009 show an emergency room visit for a severe migraine, and many of the records, including private treatment records January 2010, January 2014, and July 2018 and VA treatment records from February and December 2013, show continued reporting of a migraine headaches. Specifically, in the February 2013 VA treatment records the physician reported that Veteran’s migraine headaches were well controlled with over-the-counter pain medication. However, these medical records show only the presence of symptoms and treatment, and do not provide the evidence needed to establish the second and third Shedden elements. Moreover, the treatment records provide conflicting evidence regarding the cause of the Veteran’s migraine headache disorder. Specifically, in the July 2018 private treatment records, the Veteran’s private physician opined that the Veteran’s migraine headaches are caused by the Veteran’s chronic sinusitis, including a sinus cyst. The physician also opined that the Veteran’s chronic sinusitis was a direct result of her active duty service. The Board notes that the Veteran has filed a claim for entitlement to service connection for chronic sinusitis, which was denied in a February 2018 rating decision. In response to this rating decision, the Veteran filed a notice of disagreement and a statement of the case was subsequently provided. At the time of adjudication, a VA Form 9 or VA Form 8 have not yet been filed. Therefore, the matter of entitlement to service connection for chronic sinusitis is not currently before the Board. However, if the Veteran is ultimately granted service connection for chronic sinusitis, the Veteran may then file a claim for secondary service connection for a migraine headache disorder. As the private physician did not provide an opinion specifically regarding whether the Veteran’s migraine headache disorder is related to active duty service, the Board finds this opinion to be of very little probative value regarding the second and third Shedden elements. Further, the Veteran was afforded a VA examination in January 2014. She reported that the headaches began in the 1990’s during active duty service. She reported headaches 2 to 3 times per month, with three severe occasions in the past year for which she went to the emergency room. She stated that the migraines caused nausea, photophobia, and sonophobia. The Veteran reported that she does not see a regular physician for headache treatment and instead self-treats with over-the-counter pain medication. The VA examiner opined that it is less likely than not that the Veteran’s migraine headache condition was related to active duty service due to the fact that the first record of diagnosis was in 2000 and the Veteran’s STRs did not show symptoms, diagnosis, or treatment for a migraine headache disorder. Moreover, as was noted above, the Board cannot rely on her statements that she experienced headache symptoms in service, given her inconsistent statements. The Board finds this opinion to be of significant probative value as it included an in-person evaluation, a review of the Veteran’s claim file, and a clear rationale. The Board finds that the evidence in the record weighs against the finding of a nexus relationship between the Veteran’s active duty service and her migraine headache disorder. Though the Veteran and her fellow soldier’s statements regarding the in-service occurrences of headaches while on active duty are competent and credible, neither are competent to provide an etiology opinion. Rather, the etiological opinions in the record weight against a finding of service connection as neither the January 2014 VA examiner’s opinion nor the July 2018 private opinion find that the Veteran’s migraine headache disorder is related to or caused by active duty service. Therefore, the second and third Shedden elements needed to establish service connection have not been demonstrated. The Board notes that, in February 2013, a letter was submitted by a fellow soldier stating that the Veteran experienced headaches several times while on a tour in Saudi Arabia. The fellow soldier described a specific incident when the Veteran became disoriented after receiving medication for a severe headache during a flight back to the United States. The soldier was assigned to watch the Veteran throughout the flight, and observed that she appeared to return her normal self by the end of the flight. The Board finds the fellow soldier’s statements regarding observations of the Veteran’s headache episode to be competent and credible. However, the solider does not give, nor is he competent to give, an opinion regarding the etiology of the Veteran’s migraine headache disorder. While this statement may be new and material evidence regarding in-service headache symptoms, the Board determines this statement to be of little probative value regarding the second and third Shedden elements needed to establish service connection.   As a result, the Board concludes that the preponderance of the evidence is against the claim for service connection for a migraine headache disorder, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Page-Nelson, Associate Counsel