Citation Nr: 20004404 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 16-44 639 DATE: January 17, 2020 ORDER New and material evidence having been received, the claim of service connection for migraines is reopened. New and material evidence having been received, the claim of service connection for a lung disability is reopened. REMANDED Service connection for migraines is remanded. Service connection for a lung disability is remanded. FINDINGS OF FACT 1. The Veteran’s claims for service connection for migraines and lung damage were denied in a December 2010 rating decision on the basis that none of the three elements of service connection were met. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. Evidence received since the December 2010 rating decision raises a substantial possibility of substantiating the claims of service connection for migraines and lung damage. CONCLUSIONS OF LAW 1. The December 2010 rating decision is final with regard to the issue of service connection for migraines. New and material evidence sufficient to reopen the claim of service connection for migraines has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. The December 2010 rating decision is final with regard to the issue of service connection for lung damage. New and material evidence sufficient to reopen the claim of service connection for a lung disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from May 1971 to May 1974. These matters are on appeal from a July 2015 rating decision. The Board notes that, in the July 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran’s requests to reopen his claims for service connection for migraines and lung damage and then denied them on the merits. The Board, however, must decide initially whether evidence to reopen a claim has been received without deference to any AOJ decision concerning reopening. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Accordingly, the issues of reopening are reflected on the title page. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Until the Veteran meets her threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 1. Migraines – New and Material Evidence The Veteran contends that he has migraine headaches that are etiologically related to his active duty service. The Veteran was denied service connection for migraines in a December 2010 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of this rating decision. Therefore, the December 2010 rating decision is final. 38 U.S.C. § 7105 (b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the December 2010 denial was that none of the three elements of service connection were met. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in December 2010, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has migraines as a result of active duty service. The evidence that was of record at the time of the December 2010 rating decision included the Veteran’s VA and service treatment records. Since the December 2010 decision, the Veteran has provided his own lay statements and those of others regarding the onset of his migraines in active duty service and their continuity to the present. As the record now contains more evidence pertinent to the issues of an injury in service, a current disability, and a nexus to service than it did in December 2010, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 2. Lungs – New and Material Evidence The Veteran contends that he has a lung disability that is etiologically related to his active duty service. The Veteran was denied service connection for lung damage in a December 2010 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of this rating decision. Therefore, the December 2010 rating decision is final. 38 U.S.C. § 7105 (b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the December 2010 denial was that none of the three elements of service connection were met. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in December 2010, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a lung disability as a result of active duty service. The evidence that was of record at the time of the December 2010 rating decision included the Veteran’s VA and service treatment records. Since the December 2010 decision, the Veteran has provided a lay statement that the steam from showers in Camp Lejeune “burned [his] lungs.” As the record now contains more evidence pertinent to the issues of an injury in service and a nexus to service than it did in December 2010, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. REASONS FOR REMAND 1. Service connection for migraines is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). A service treatment record with an illegible date notes the Veteran’s report of a stiff neck and headaches. In a September 2016 statement, the Veteran reported that he was dissatisfied with the treatment offered during this appointment and that he swore he would not seek further treatment during active duty service. He also reported that his migraines persisted and worsened after his separation from active duty service. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. This evidence meets that threshold, and an examination is necessary. In addition, the Veteran’s service personnel records note service at Camp Lejeune from August 1971 to May 1974. Because he served at Camp Lejeune prior to December 31, 1987, he was presumptively exposed to contaminated water. 38 C.F.R. § 3.307(a)(7) (2018). Migraines are not listed among the diseases associated with contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309(f) (2018). As a result, service connection is not considered on a presumptive basis; however, direct service connection remains available. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). Because the Veteran ascribes this disability to exposure at Camp Lejeune, the examiner’s opinion should address this contention. 2. Service connection for a lung disability is remanded. The Veteran’s VA treatment records note a diagnosis of chronic obstructive pulmonary disease (COPD). In a January 2010 claim, the Veteran reported “lung damage” that he ascribed to asbestos exposure while “working on machines.” In n April 2015 statement, the Veteran reported that steam from the showers at Camp Lejeune “burned [his] lungs” and that he did not seek treatment to avoid being “laughed at and talked about.” Because this evidence meets the low threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease, an examination is necessary. McClendon, 20 Vet. App. at 83. A lung disability is not listed among the diseases associated with contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309(f) (2018). As a result, service connection is not considered on a presumptive basis; however, direct service connection remains available. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). Because the Veteran ascribes this disability to exposure at Camp Lejeune, the examiner’s opinion should address this contention. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his migraines. The entire claims file and a copy of this remand must be made available to the examiner for review. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that any current migraines began in service, were caused by service, or are otherwise related to the Veteran’s active service, including by exposure to contaminated water at Camp Lejeune. The clinician is advised that service connection can be established due to contaminated water exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because migraines are not on the list of diseases and conditions that are presumptively associated with exposure to contaminated water. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A service treatment record with an illegible date, noting the Veteran’s report of a stiff neck and headaches. b. A November 2002 VA treatment record noting the Veteran’s report of a history of migraine headaches. c. An April 2014 lay statement from someone who had known the Veteran for 15 years and reported that he has had migraine headaches as long as she has known him. d. An April 2014 lay statement from the Veteran’s brother, reporting that he had had migraine headaches since his separation from active duty service. e. The Veteran’s April 2015 statement regarding the onset and continuity of his headaches. f. A December 2014 VA treatment record noting the Veteran’s report that his headaches had their onset during his service at Camp Lejeune. g. The Veteran’s statement in the November 2015 Notice of Disagreement (NOD) that a treatment provider had told him and his spouse that contaminated water at Camp Lejeune “absolutely” could have caused the disabilities on appeal. h. The Veteran’s September 2016 statement regarding the onset and continuity of his headaches, including his account of the treatment appointment during active duty service and his reasons for not seeking further treatment until after separation. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Schedule the Veteran for an examination with an appropriate clinician for his lung disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that any current lung disability, including COPD, began in service, was caused by service, or is otherwise related to the Veteran’s active service, including by exposure to contaminated water at Camp Lejeune or to asbestos. The clinician is advised that service connection can be established due to contaminated water exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because a lung disability is not on the list of diseases and conditions that are presumptively associated with exposure to contaminated water. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s statement in a January 2010 claim ascribing “lung damage” to exposure to asbestos while “working on machines.” b. The Veteran’s April 2015 statement reporting that the steam from showers at Camp Lejeune “burned [his] lungs” and that he did not seek treatment to avoid being “laughed at and talked about.” c. The Veteran’s statement in the November 2015 Notice of Disagreement (NOD) that a treatment provider had told him and his spouse that contaminated water at Camp Lejeune “absolutely” could have caused the disabilities on appeal. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.