Citation Nr: 19113003 Decision Date: 02/22/19 Archive Date: 02/22/19 DOCKET NO. 18-21 116 DATE: February 22, 2019 ORDER New and material evidence not having been received, the claim for service connection for a back disability is not reopened. New and material evidence not having been received, the claim for service connection for a left knee disability is not reopened. New and material evidence not having been received, the claim for service connection for a right knee disability is not reopened. New and material evidence having been received, the claim for service connection for migraine headaches is reopened. Service connection for migraine headaches is granted. FINDINGS OF FACT 1. A January 2011 rating decision denied service connection for a back disability, and the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision; evidence received since the January 2011 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a back disability or raise a reasonable possibility of substantiating that claim. 2. A January 2011 rating decision denied service connection for left and right knee disabilities, and the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision; evidence received since the January 2011 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a left or right knee disability or raise a reasonable possibility of substantiating those claims. 3. A November 2012 rating decision denied service connection for migraine headaches, and the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision; evidence received since the November 2012 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for migraine headaches. 4. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s migraine headaches are related to his military service. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim for service connection for a back disability is not new and material, and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. Evidence submitted to reopen the claim for service connection for a left knee disability is not new and material, and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. Evidence submitted to reopen the claim for service connection for a right knee disability is not new and material, and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. Evidence submitted to reopen the claim for service connection for migraine headaches is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for establishing entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to April 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning the issue of entitlement to service connection for sleep apnea. That appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the Court’s decision in Manlincon v. West, 12 Vet. App. 238 (1999), in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently processing it. Action by the Board at this time may serve to actually delay the RO’s action on the appeal. As such, no action will be taken by the Board at this time, and that issue will be the subject of a later Board decision, if ultimately necessary. Reopening Previously Denied Claims A final claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that 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); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). 1. Back Disability In July 2010, the Veteran filed a claim for service connection for a back disability, which was initially denied in an October 2010 rating decision. After additional evidence was received, a January 2011 rating decision confirmed and continued the denial of service connection for a back disability, and the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision. Therefore, the January 2011 rating decision is final. See 38 U.S.C. § 7104 (2012; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2018). At the time of the January 2011 rating decision, the substantive evidence of record included a May 1991 treatment record showing that the Veteran was involved in a motor vehicle accident; service treatment records, which showed complaints of back pain following the May 1991 motor vehicle accident and a report of recurrent low back pain on a March 1993 report of medical history; post-service treatment records showing complaints of back pain as early as 2006; a November 2006 VA Gulf War examination report showing that the Veteran reported back pain; an August 2010 statement from the Veteran’s girlfriend regarding the nature of the Veteran’s back pain; a September 2010 VA examination report showing that the Veteran reported having back pain since the in-service motor vehicle accident; and an opinion from the September 2010 VA examiner that a current back disability was less likely than not caused by or a result of service. The Veteran’s claim was denied because the evidence of record did not show that a current back disability was related to service. Since the January 2011 rating decision, the substantive evidence of record includes updated VA treatment records showing continued complaints of back pain; photographs of the Veteran’s car after the May 1991 accident; a June 2017 written statement from the Veteran detailing the events of the accident and subsequent back pain; VA examination reports dated February 2015 and February 2018; and opinions from the February 2015 and February 2018 VA examiners that a current back disability is not related to service. The Veteran’s assertion that he experienced back pain after the in-service accident is not new, as it is duplicative of evidence already of record at the time of the January 2011 rating decision. The Veteran’s updated treatment records, photographs, and VA examination reports are new; however, they do not relate to establishing that a current back disability is related to service or raise a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the Board finds that the new evidence is not material, and the claim for service connection for a back disability is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117-120. 2. Left and Right Knee Disabilities In July 2010, the Veteran filed a claim for service connection for left and right knee disabilities, which was initially denied in an October 2010 rating decision. A January 2011 rating decision confirmed and continued the denial of service connection for left and right knee disabilities, and the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision. Therefore, the January 2011 rating decision is final. See 38 U.S.C. § 7104; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. At the time of the January 2011 rating decision, the substantive evidence of record included the May 1991 treatment record from the motor vehicle accident; service treatment records, which included a March 1993 report of medical examination showing that the Veteran had a painless knot in his lateral right knee that was a residual of a high school football injury; post-service treatment records showing complaints of knee pain as early as 2006; a November 2006 VA Gulf War examination report showing that the Veteran reported pain and stiffness in the knees; an August 2010 statement from the Veteran’s girlfriend regarding the nature of the Veteran’s knee pain; and a September 2010 VA examination report showing knee tenderness. The Veteran’s claim was denied because the evidence of record did not show that a current knee disability was related to service. Since the January 2011 rating decision, the substantive evidence of record includes updated VA treatment records showing continued complaints of knee pain; photographs of the Veteran’s car after the May 1991 accident; a June 2017 written statement from the Veteran detailing the events of the accident; and a February 2018 VA examination report and opinion from the VA examiner that a current knee disability is not related to service. Although this evidence is new, it does not relate to establishing that a current left or right knee disability is related to service or raise a reasonable possibility of substantiating those claims. Accordingly, the Board finds that the new evidence is not material, and the claim for service connection for a left and/or right knee disability is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117-120. 3. Migraine Headaches In February 2006, the Veteran filed a claim for service connection for migraine headaches, which was initially denied in a January 2007 rating decision. Thereafter, the Veteran filed several claims to reopen service connection for migraines, which the RO declined to reopen in rating decisions dated October 2010, January 2011, and October 2012. In a November 2012 rating decision, the RO reopened the Veteran’s claim, but denied it on the merits. The Veteran did not perfect an appeal or submit new and material evidence within one year of that decision. Therefore, the November 2012 rating decision is final. See 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2018). At the time of the November 2012 rating decision, the substantive evidence of record included the May 1991 treatment record from the motor vehicle accident, service treatment records, post-service treatment records, statements from friends and relatives regarding the onset of the Veteran’s headaches, November 2006 and September 2010 VA examination reports, and a September 2011 opinion from a VA treatment provider that the Veteran’s migraines were related to the in-service motor vehicle accident. The Veteran’s claim was denied because the RO determined that the most probative showed that the Veteran’s migraines were not related to service. Since the November 2012 rating decision, the evidence of record includes a May 2014 VA treatment record, in which the Veteran’s neurologist noted that the Veteran’s headaches are consistent with post-traumatic headaches due to the in-service motor vehicle accident. As this new evidence relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for migraine headaches, the Board finds that the Veteran has submitted both new and material evidence, and the claim is therefore reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117-120. Service Connection for Migraine Headaches Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s migraine headaches are related to the in-service motor vehicle accident. Service treatment records show that the Veteran was involved in a motor vehicle accident in May 1991, during which his car rolled six times. Following the accident, he was treated for pain and bruising on the right side of his head. A March 1993 report of medical history shows that the Veteran denied frequent or severe headaches. The earliest post-service treatment record is a May 2001 record of the Veteran’s initial visit to a VA medical center. That record shows that the Veteran reported having headaches since 1991 after a motor vehicle accident, which worsened over the past four years. He described severe headaches about once every two months, which were usually on the right side of his head. The assessment was migraine headaches. In a September 2010 written statement, a friend of the Veteran indicated that when the Veteran was on leave in October 1991, he complained of his head hurting for some time. In another September 2010 written statement, the Veteran’s father indicated that he observed the Veteran suffer from headaches from the time he moved in with him in May 1993. In a May 2006 written statement, another relative indicated that she first observed the Veteran experience a severe headache at a family gathering in November 1994. In a September 2011 letter, one of the Veteran’s treating VA physicians indicated that after a careful reviewed the Veteran’s medical records, he believed the Veteran’s right temporal headaches were more likely than not the direct result of the May 1991 motor vehicle accident. The physician indicated that his opinion was based on the temporal relatedness of the Veteran’s headaches as well as the documented physical correlation of the Veteran having struck the windshield with the right temporal region of his head. A May 2014 VA neurology treatment record shows that the Veteran reported persistent pain primarily in the right temporal area. The neurologist indicated that based on the development of right temporal dominant headaches which began after the motor vehicle accident, the Veteran’s headaches were consistent with post-traumatic origin. The Veteran underwent a VA examination in February 2018, during which he reported progressively worsening headaches since 1991. The examiner opined that the Veteran’s migraines were less likely than not incurred in or caused by the in-service motor vehicle accident. In support of this, the examiner explained that there was no mention of migraines in service or during the years following service. Although the Veteran denied frequent or severe headaches upon his discharge from active duty, his earliest post-service treatment record shows that he reported having headaches ever since the 1991 motor vehicle accident. The Board finds the Veteran’s May 2001 statement to his treatment provider to be reasonably credible, as the Veteran was not seeking service connection for migraines at the time, and the statement was made solely for purposes of seeking treatment. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Furthermore, his assertions that his headaches began after the May 1991 accident are supported by the written statements of his friend and relatives. Moreover, two of the Veteran’s treating physicians indicated that the Veteran’s headaches are consistent with having sustained an injury to the right temporal region of the head, as the Veteran did in the May 1991 accident. Based on the foregoing, and after resolving any doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran’s migraines are related to the in-service motor vehicle accident. Accordingly, service connection for migraine headaches is granted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banister, Counsel