Citation Nr: 20003570 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 17-09 324 DATE: January 15, 2020 ORDER New and material evidence having been received, the Veteran’s application to reopen her previously denied claim of entitlement to service connection for a left-hand disorder (frostbite, left hand), is granted. New and material evidence having been received, the Veteran’s application to reopen her previously denied claim of entitlement to service connection for a right-hand disorder (frostbite, left hand), is granted. New and material evidence having not been received, the Veteran’s application to reopen her previously denied claim of entitlement to service connection for a right ankle disorder is denied. Her claim is not reopened. Entitlement to service connection for migraine headaches is denied. REMANDED Entitlement to service connection for a bilateral hand disorder is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a left-hand disorder (frostbite, left hand) was originally denied by a June 2006 rating decision. She did not appeal that decision and it became final. She then sought to reopen her claim in February 2014. Her prior denial was upheld by a January 2015 rating decision. She filed a notice of disagreement (NOD) in May 2015 for service connection for a cervical spine and right ankle disorder. She did not include an appeal of service connection for a left-hand disorder. In June 2015, she again filed for service connection for, inter alia, a left-hand disorder. She did not submit any new evidence along with her claim, nor did she file an NOD within one year of the rating decision. As a result, it came final. 2. Evidence received since the January 2015 rating decision related to the Veteran’s claim for service connection for a left-hand disorder is both new and material as it relates to an unestablished fact necessary to substantiate her claim. 3. The Veteran’s claim for a right-hand disorder was last finally denied by a May 2013 rating decision. She did not timely appeal that decision and it became final. 4. Evidence received since the May 2013 rating decision related to the Veteran’s claim for service connection for a right-hand disorder is both new and material as it relates to an unestablished fact necessary to substantiate her claim. 5. The Veteran’s claim for a right ankle disorder was last finally denied by a May 2013 rating decision. She did not timely file a notice of disagreement to that decision, nor did she submit new and material evidence within one year. As a result, the May 2013 rating decision became final. 6. Evidence received since the May 2013 rating decision related to the Veteran’s claim for service connection for a right ankle disorder is not new and material as it does not relate to an unestablished fact necessary to substantiate her claim. 7. The Veteran’s migraine headaches are less likely than not related to service. CONCLUSIONS OF LAW 1. The January 2015 rating decision that last denied service connection for a left-hand disorder (frostbite, left hand), is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1100. 2. Evidence received since the January 2015 rating decision is new and material, and the Veteran’s claim for service connection for a left-hand disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The May 2013 rating decision that denied service connection for a right-hand disorder (frostbite, left hand), is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1100. 4. Evidence received since the May 2013 rating decision is new and material, and the Veteran’s claim for service connection for a right-hand disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 5. The May 2013 rating decision that denied service connection for a right ankle disorder is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1100. 6. Evidence received since the May 2013 rating decision is not new and material, and the Veteran’s claim for service connection for a right ankle disorder is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 7. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from April 1979 to April 1988. On her substantive appeal (Form 9) dated in February 2017, she requested a videoconference hearing before a Veterans Law Judge (VLJ). However, in September 2019, her attorney stated that he wished to waive the Veteran’s hearing scheduled for October 2019. As a result, no hearing was held. It is worth noting that the Veteran has various active appeal streams. Specifically, in November 2019, she was issued a statement of the case (SOC) related to the issues of service connection for: chronic pain, alopecia, hypoechoic, hysterectomy, psoriasis, and anxiety. Because the Veteran has not yet submitted a substantive appeal as to these issues, the Board does not have jurisdiction over them. The Veteran’s attorney has not submitted argument relative to any of the claims currently before the Board. Nevertheless, the Board will move forward with adjudication of the issues currently on appeal. New and Material Evidence In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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(a). 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for frostbite, right hand; whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for frostbite, left hand. Initially, it is worth noting that a plain review of the file would seemingly indicate that additional service treatment records have been associated with the claims file since the Veteran’s claims for bilateral hand pain/frost bite were last denied. The Board acknowledges that under 38 C.F.R. § 3.156(c), VA will reconsider a previously denied claim de novo if relevant service records are received any time after such decision. However, in this case, the Board finds that 38 C.F.R. § 3.156(c) is not applicable as these records, although uploaded at a later date, were already of record at the time of the prior denials. This is confirmed by the November 2010 Board decision that makes specific references to these records, including the Veteran being evaluated for a possible cold injury in January 1988. See November 2010 Board Decision, pg. 16. As such, the Board finds that in order to reopen her claims, she must submit new and material evidence. Regarding the Veteran’s claim for service connection for frostbite of the left hand, the Board notes that this claim was last finally by a January 2015 rating decision. By way of background, the Veteran’s claim for service connection for a left-hand disorder (frostbite, left hand) was originally denied by a June 2006 rating decision. She did not appeal that decision and it therefore came final. She then sought to reopen her claim in February 2014. Her prior denial was upheld by a January 2015 rating decision. She filed a notice of disagreement (NOD) in May 2015 for service connection for a cervical spine and right ankle disorder. She did not include service connection for a left-hand disorder. In June 2015, she again filed for service connection for, inter alia, a left-hand disorder. She did not submit any new evidence along with her claim, nor did she file an NOD within one year of the rating decision. As a result, it came final. In January 2015, the Veteran’s claim was denied on the basis that she had not currently diagnosed disability. Since that time, a voluminous amount of VA treatment records and a VA examination report have been added to the Veteran’s claims file. These records show that the Veteran experiences “ongoing severe pain, 9/10, in left hand intermittently with formation of claw and unable to grasp things which impairs her job.” See July 2015 VA Treatment Records. These records show that the Veteran’s left hand is painful and causes functional loss. The records also document that the Veteran has left hand triggering of the second, third, fourth, and fifth fingers. This evidence is new and is it also material as is relates to an unestablished fact necessary to substantiate the claim. As a result, her claim for service connection for a left-hand disorder is reopened. To this extent only, the appeal is granted. Regarding the Veteran’s claim for a right-hand disorder, the Board notes that this claim was originally denied by a June 2006 rating decision. The Veteran did not appeal that decision and it became final. She then sought to reopen her claim, which was again denied in July 2008. She appealed that decision and the Board of Veterans’ Appeals (BVA) reopened her claim and denied it on the merits in November 2010. The Veteran then sought to reopen her claim and was again denied by a May 2013 rating decision. The Veteran did not timely appeal that decision and it became final. Since the May 2013 rating decision, however, a voluminous amount of VA treatment records and a VA examination report have been added to the claims file. The May 2013 rating decision denied the Veteran’s claim on the basis that “the evidence fails to show a diagnosed condition that is related to your military service. There is also no evidence of record that show the condition was diagnosed to a compensable degree within one year of your discharge.” Essentially, the evidence established a diagnosis, an in-service injury, but not a nexus. Since that time, in October 2015, the RO obtained a VA examination. As this evidence is new and relates to the “nexus” element, it is material. As a result, the Veteran’s claim for service connection for a right-hand disorder is reopened. To this extent only, the appeal is granted. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right ankle disorder. The Veteran’s claim for service connection for a right ankle was originally denied by a July 2008 rating decision. The Veteran appealed that decision, and in November 2010, BVA also denied the Veteran’s claim. She sought to reopen her claim in June 2012 and in response, a VA examination was obtained in March 2013. A May 2013 rating decision reopened the Veteran’s claim but denied it on the merits on the basis that there was no nexus between the Veteran’s in-service right ankle complaints and service. The Veteran did not submit new and material evidence within one year of her claim and she did not timely file a notice of disagreement (NOD). Instead, in February 2014, she filed a new claim for service connection for a right ankle disorder. Because no new and material evidence was submitted, nor was an NOD filed, the May 2013 rating decision became final. The evidence received since the May 2013 include a voluminous amount of treatment records. However, none of these records provide a medical opinion linking the Veteran’s right ankle to service. Although new, the evidence is not material as it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. Previous rating decisions acknowledged a current diagnosis and in-service right ankle complaints. As such, the Board finds that the Veteran’s application to reopen her previously denied claim of entitlement to service connection for a right ankle disorder is denied. Her claim is not reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 3. Entitlement to service connection for migraine headaches. The Veteran contends that service connection for migraine headaches is warranted. An October 2015 VA examination report documents that she experiences migraine headaches. In addition, her service treatment records document that in May 1979, she had a headache. There was no trauma to the head or tenderness. There are no other complaints contained in her service treatment records related to headaches. She did not have any other complaints in the following nine years of service. Indeed, on discharge, the Veteran was found to be clinically normal – no history of headaches or current headaches was reported at that time. She specifically denied “frequent or severe headaches.” In October 2015, a VA examiner opined that the Veteran’s migraines were less likely than not related to her in-service complaint of a headache in May 1979. As rationale, the examiner explained that there was no diagnosis of migraine headaches found in service and later treatment records dated in March 1997 documented “new onset of occipital and frontal headaches.” The Board find this opinion highly probative. The examiner provided a clear conclusion and supporting rationale and explained that he could not link the Veteran’s current migraines to her one complaint of a headache in May 1979. The Board also finds is highly probative that the Veteran had nine years of additional service after her headache complaint. In those nine years since her headache complaint, the records do not show that she experienced so much as one migraine. The only evidence in support of the Veteran’s claims are her own statements. The Board recognizes that the Veteran is capable of stating that she had a headache in service and now experiences migraines. A migraine diagnosis is also capable of lay observation. However, in this instance, the Board affords more probative weight to the VA examination as well as her service and later VA treatment records which show that she only experienced one headache in service and did not begin to experience “occipital and frontal headaches” until approximately nine years post-service. It is worth noting that the Veteran herself has not claimed that she has experienced continuous headaches since service. She is not competent to link one headache in service to her current migraines as she has not demonstrated that she has the necessary medical expertise to link one remote headache to a current disability. Therefore, the October 2015 VA opinion is the most probative evidence as to the nexus element, and it is against the Veteran’s claim. To the extent the Veteran’s headaches have not been documented in her treatment records, the Board notes that she was scheduled for a hearing before the Board to explain the history of her migraines. However, through her attorney, she instead requested to withdraw her hearing request. As a result, the Board does not have any testimony regarding the history of the Veteran’s headaches. The Board can only rely on the evidence of record in rendering this decision. As such, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim. Service connection for migraines must therefore be denied. REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disorder is remanded. The Veteran contends that service connection is warranted for a gastrointestinal disorder. Her VA treatment records document a diagnosis of GERD. In addition, her service treatment records contain complaints of gastrointestinal distress, including a diagnosis of gastrointestinal bleed “presumably due to hemorrhoids.” Given the Veteran’s in-service complaints, coupled with the fact that she is currently service-connected for hemorrhoids, a remand is warranted to obtain a VA medical opinion addressing the etiology of the Veteran’s GERD both on a direct and secondary basis. 2. Entitlement to service connection for a bilateral hand disorder. The Veteran contends that she has a bilateral hand disorder as a result of service. Specifically, in August 2015, her VA treatment records document that she was seen for trigger fingers. The Veteran explained that she thought her impairments were caused by a “distant frostbite injury many years ago.” In July 2015, she presented with ongoing severe pain in her hands. She reported her hands hurting since smashing them in Germany in a van door in 1979 and then again after experiencing frost bite in 1981. Although the October 2015 VA examiner opined that there were no residuals of chronic disability related to frost bite subject to service connection, additional opinion is necessary regarding the relationship, if any, between frost bite and the later development of arthralgia and trigger fingers. As such, remand is warranted. 3. Entitlement to service connection for a cervical spine disorder is remanded. The Veteran contends that she has a cervical spine disorder related to service. Her VA treatment records document a diagnosis of degenerative disc disease of the cervical spine. On her May 2015 NOD, she explained that while in service, she was “in pain for some time due to [her] job in supply involving a lot of lifting.” She reported that she had been taking medications and therefore it was somewhat difficult to determine the source of her pain, but she was placed on a profile that limited her lifting to 15 pounds or less. Although her service treatment records do not document that she was put on profile, given the Veteran’s MOS as a material control and accounting specialist, a remand is warranted for a VA medical opinion to determine the etiology of her cervical spine disorder. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran’s GERD. The need for an in-person examination is left to the discretion of the examiner. The examiner may also choose to contact the Veteran via telephone to elicit any information necessary. The examiner must review the entire claims file and opine: (a.) Whether the Veteran’s GERD is at least as likely as not directly related to service; (b.) Whether the Veteran’s GERD is at least as likely as not caused by her service-connected hemorrhoids; and (c.) Whether the Veteran’s GERD is at least as likely as not aggravated by her service-connected hemorrhoids. A complete rationale for any opinion rendered must be provided. 2. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran’s bilateral hand disorders. The need for an in-person examination is left to the discretion of the examiner. The examiner may also choose to contact the Veteran via telephone to elicit any information necessary. The examiner must review the entire claims file and opine: (a.) Whether the Veteran’s left-hand pain with trigger fingers is at least as likely as not related to service; and (b.) Whether the Veteran’s right-hand pain with trigger fingers is at least as likely as not related to service. Medical opinions addressing the relationship between hand pain and trigger fingers and frost bite, if any, would be of considerable help to the Board. A complete rationale must be provided for any opinion reached. 3. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran’s cervical spine disorder. The need for an in-person examination is left to the discretion of the examiner. The examiner may also choose to contact the Veteran via telephone to elicit any information necessary. The examiner must review the entire claims file and opine: (a.) Whether the Veteran’s degenerative disc disease of the cervical spine is at least as likely as not related to service.   The Veteran contends that she has degenerative disc disease of the cervical spine essentially as a result of her the military duties she had as a material control and accounting specialist, which required her to lift and move heavy items, including overhead. A complete rationale for any opinion rendered must be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.