Citation Nr: 18160742 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-40 119 DATE: December 28, 2018 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for lumbar spine degenerative disc and facet arthritis, claimed as a back condition, and the request to reopen is denied. Entitlement to service connection for migraine headaches is denied. FINDINGS OF FACT 1. The appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for lumbar spine degenerative disc and facet arthritis. 2. The preponderance of the evidence is against finding that the Veteran has a headache disability due to a disease or injury in service, to include a specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for lumbar spine degenerative disc and facet arthritis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for entitlement to service connection for a headache disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from June 1976 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon. New and Material Evidence 1. Lumbar Spine Degenerative Disc and Facet Arthritis Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. It was further noted that reopening a claim only to deny it without providing assistance would be a hollow, technical decision and that there was no reason to expend agency resources on a semantic determination that is not tied to a meaningful procedural duty. Id. at 123-24. A final denial on one theory is a final denial on all theories. Thus, a new theory in support of a claim for a particular benefit is not equivalent to a separate claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must consider the new and material evidence question independently from the RO’s determination, as it goes to the Board’s jurisdiction to reach the underlying service connection claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, even though the RO reopened the appellant’s lumbar spine degenerative disc and facet arthritis claim in its June 2014 rating decision, the Board must consider the new and material evidence question independently before it may adjudicate that claim on the merits. Here, the Veteran first filed a claim for entitlement to service connection for a back condition in January 2004. The RO issued a September 2004 rating decision denying entitlement to service connection. The Veteran did not appeal this decision or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Thus, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 3.156, 20.302, 20.1103. In May 2009, the Veteran filed a second claim for entitlement to service connection for a lower back injury. The RO construed the claim as a request to reopen the previously denied claim and subsequently issued a February 2010 rating decision denying the request to reopen as new and material evidence had not been submitted. In July 2010, the RO acknowledged the Veteran’s contact regarding this decision and provided him with a VA Form 21-4138 to submit an appeal. The Veteran did not submit new and material evidence within the one-year appeal period, and he did not timely appeal the denial. See August 2013 notice of disagreement, dated July 31, 2013. In July 2013, the Veteran contacted the RO to file a third claim. The RO construed the aforementioned August 2013 notice of disagreement as a request to reopen. In May 2014, the RO provided the Veteran with a VA examination. The examiner determined that the Veteran’s back condition was less likely than not (less than 50%) probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran’s service treatment records show a 1978 note regarding a complaint of low back pain after a collision with another baseball player, and a complaint of back pain after a 1979 truck accident. The examiner further noted that the Veteran was discharged in 1979 and that the Veteran endorsed “no” for “recurrent back pain” in a 1985 post-service examination. Additionally, the examiner noted that the record for complaints of or treatment for back pain is silent for 27 years after discharge. Therefore, the examiner opined that there was no objective evidence to support the Veteran’s claim that his current chronic low back condition is related to either of these incidents in service. The examiner further opined that the mild to moderate degenerative changes noted in the x-ray would be considered age-related. Based on the May 2014 VA examination, the RO reopened the Veteran’s claim, and denied the claim, in a June 2014 rating decision, because the evidence of record did not support the conclusion that a chronic disability was present in service, and that there was no continuity of symptoms from service to the present. In January 2015, the Veteran timely appealed this decision. The RO then issued an October 2015 statement of the case. In November 2015, the Veteran timely filed a VA Form 9; thereafter, the RO certified the appeal to the Board through a June 2016 VA Form 8. Since the February 2010 rating decision, the Veteran has not submitted any additional evidence demonstrating a nexus between the claimed disability and service. The Veteran, through his former counsel, submitted further argument, in July 2016, contending that the May 2014 VA examination was inadequate because the “examiner appears to think that the continuity of evidence is required in establishing service connection.” The Board concedes that the May 2014 VA examination is new, as it was not previously of record. However, the Board finds that the examination is not material as it does not relate to an unestablished fact necessary to substantiate the claim and is cumulative and redundant of the evidence of record at the time of the last prior final denial. The May 2014 VA opinion is against the claim. Consequently, while some of the evidence submitted since the February 2010 rating decision is new, it is not material as it does not raise a reasonable possibility of substantiating a claim for service connection for a low back condition. To the extent the adequacy of the VA examination was raised, the Board finds that as new and material evidence has not been submitted, the argument is moot. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463-64 (2007) (holding that once the Board decides that a claim cannot be reopened, the duty to provide an appellant with a new medical examination is extinguished and the adequacy of any new examination becomes moot). Since new and material evidence has not been received, the previously denied claim of entitlement to service connection for a low back condition is not reopened. Service Connection 1. Migraine The Veteran contends that his currently diagnosed migraine headaches are related to service. Specifically, he asserts that he was diagnosed with a headache disability in service and has had headaches ever since service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain specified chronic diseases, such as migraine headaches (as an organic disease of the nervous system), may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). The Board concedes that the Veteran has a current diagnosis of migraine headaches. See May 2014 Headaches Disability Benefits Questionnaire (DBQ). Therefore, the first element of service connection has been satisfied. Service treatment records reflect that the Veteran was involved in two motor vehicle accidents in service. Following the November 1978 accident, the Veteran complained of headaches and having double vision. The following day, the Veteran reported back to the clinic and reported only having a slight headache. Later in November 1978, the Veteran complained of headaches, as well as, difficulty swallowing, sore throat, and a runny nose. A January 1979 separation examination report noted that the Veteran’s head was clinically normal when examined. He denied a history of, or current, frequent or severe headaches on multiple occasions. See November 1985 Report of Medical History. The May 2014 DBQ diagnosed migraines, including migraine variants, with a history from 1978. The DBQ notes that the Veteran reported the 1978 motor vehicle accident and that after the accident and continuing until the present has approximately two to three headaches per week. The examiner noted that the Veteran experiences pulsating or throbbing head pain on both sides of the head, and further experiences nausea, vomiting, sensitivity to light and sound, and changes in vision that typically last less than one day. However, the examiner noted that the Veteran does not have characteristic prostrating attacks of migraine pain. The examiner concluded that the Veteran’s current migraines were less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness as the record showed the Veteran endorsed “no” to having “frequent or severe headaches or head injury” on his 1979 separation examination or on the 1985 report of medical history. Further, the examiner noted that the record is silent for 27 years for any assessment or treatment of a migraine headache. The Board finds that the May 2014 opinion is highly probative to the question at hand. It was authored by an individual who is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record. It contains a detailed rationale with citation to the facts of the Veteran’s case and pertinent medical literature. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, while the Veteran is competent to describe having headaches, he does not possess the necessary medical expertise to diagnose a separate headache disability and link it to service as headaches may be due to many different causes. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation of service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. In short, the Board finds that a preponderance of the evidence weighs against finding a nexus between the Veteran’s headaches and his service. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk