Citation Nr: 20080452 Decision Date: 12/22/20 Archive Date: 12/22/20 DOCKET NO. 15-01 046 DATE: December 22, 2020 ORDER 1. The appeal to reopen a claim of service connection for kidney stone disease is denied. 2. The appeal to reopen a claim of service connection for migraine headaches is denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. An unappealed August 2008 rating decision denied the Veteran service connection for kidney stone disease essentially based on a finding that his kidney stone disease was not etiologically related to his service. 2. Evidence received since the August 2008 rating decision is cumulative or does not tend to relate the Veteran’s kidney stone disease to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for kidney stone disease; and does not raise a reasonable possibility of substantiating such claim. 3. An unappealed August 2008 rating decision denied the Veteran service connection for migraine headaches, essentially based on a finding that his migraine headaches were not etiologically related to his service. 4. Evidence received since the August 2008 rating decision is cumulative or does not tend to relate the Veteran’s migraine headaches to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for migraine headaches; and does not raise a reasonable possibility of substantiating such claim. 5. The Veteran does not have a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for kidney stone disease may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. New and material evidence has not been received, and the claim of service connection for migraine headaches may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The requirements for a TDIU rating are not met; a TDIU rating is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a)(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1976 to September 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision. In March 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In September 2018 and July 2020, the case was remanded for further development. 1., 2. The appeals to reopen claims of service connection for kidney stone disease and migraine headaches are denied. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). An August 2008 rating decision denied the Veteran service connection for kidney stone disease and migraine headaches based essentially on a finding that such disabilities were not shown to be related to his service. He filed a timely Notice of Disagreement (NOD) in October 2008, and a Statement of the Case (SOC) was issued in May 2009. He did not perfect the appeal (by filing a Form 9) within the period prescribed, and new and material evidence was not received within a year following. Accordingly, it became final. 38 U.S.C. § 7105. The evidence of record at the time of the August 2008 rating decision included the Veteran’s service treatment records (STRs), VA and private treatment records, and lay statements by the Veteran. The Veteran’s STRs are silent for any complaints, treatment, or diagnosis of kidney stone disease or migraine headaches. A December 1976 STR notes that he was seen for a possible urinary tract infection with one reported symptom being a headache. A cytoscopy was normal. A June 1995 private treatment record (by Dr. G.) notes that the Veteran was referred by his urologist Dr. M., that he reported having kidney stone disease since 1981, and that he currently suffered from migraine headaches. Evidence received since the August 2008 rating decision includes VA and private treatment records, “buddy statements,” and testimony and lay statements by the Veteran. A February 2002 private treatment record (included in a July 2020 receipt of Social Security Administration (SSA) records) notes that the Veteran reported a 15-16-year history of headaches. The provider, Dr. C., noted in her letter to Dr. M. (the Veteran’s urologist) that he had mixed headaches with a combination of migraines with visual aura and tension headaches. A September 2008 private treatment record notes that the provider indicated that the Veteran’s migraine headaches seemed to start in his neck. A September 2009 private treatment record notes that the Veteran sought treatment for kidney stones and uric acid stones. An April 2010 private abdomen and pelvis CT found numerous small non-obstructing calcifications in each kidney. A March 2012 private treatment record notes that on evaluation of the Veteran’s kidneys, no hydronephrosis was shown, but there were possible bilateral renal stones. A January 2015 private treatment record notes that the Veteran had an extensive history of kidney stones and new onset hematuria and bilateral flank pain. On evaluation, both kidneys showed nonobstructive nephrolithiasis. At the March 2018 videoconference hearing, the Veteran testified that he had headaches during service and treated them with over-the-counter medication; he related that he had kidney stones during service. It was noted that he had a history of kidney stones (already in the record) from 1981. He was granted a 60-day abeyance period for submission of additional evidence. VA and private treatment records, and SSA records received after the March 2018 hearing show ongoing treatment for the Veteran’s kidney stone disease and migraine headaches. As the August 2008 rating decision denied service connection for kidney stone disease and migraine headaches (on the basis that such disabilities were not shown to be etiologically related to the Veteran’s service), for evidence received since then to relate to an unestablished fact necessary to substantiate the claims (and be new and material), it would have to tend to show that his kidney stone disease and migraine headaches are etiologically related to his service. Evidence added to the record since the August 2008 rating decision includes private and VA treatment records, SSA records, “buddy statements,” and the Veteran’s lay statements and testimony, and merely shows that he has and receives treatment for kidney stone disease and migraine headaches; those facts were previously established, and are not in dispute. No evidence received since the August 2008 rating decision that denied service connection for kidney stone disease and migraine headaches is new evidence that positively bears on an unestablished fact necessary to substantiate the claims (shows that the Veteran’s kidney stone disease and migraine headaches are, or may be, etiologically related to his service). The Board notes the February 2002 report of migraine headaches (received in July 2020 as part of the SSA records); however, the provider did not opine that the Veteran’s headaches were related to service, and an earlier, June 1995, treatment record (that was in the record prior to the August 2008 rating decision) also notes the Veteran’s report of migraine headaches. With his claims to reopen, he has not submitted (or identified for VA to secure on his behalf) any affirmative probative evidence (i.e. medical opinions or treatise) supporting that his kidney stone disease and migraine headaches may be etiologically related to his service. Accordingly, the Board finds that new and material evidence has not been received, and that the claims of service connection for kidney stone disease and migraine headaches may not be reopened. 3. Entitlement to a TDIU rating is denied. A TDIU rating may be assigned, where the schedular rating is less than total, when a Veteran is unable to maintain a substantially gainful occupation as a result of service-connected [emphasis added] disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, a threshold legal requirement for substantiating entitlement to TDIU is that the Veteran must a disability for which service connection has established (which renders the veteran unemployable). The Veteran contends that he is unable to maintain substantially gainful employment, in part, due to his kidney stone disease and migraine headaches. However, his kidney stone disease and migraine headaches are not service-connected; in fact, he has not established service connection for any disability. Therefore, the threshold legal requirement for substantiating this claim is not met; the claim lacks legal merit. Accordingly, the appeal in this matter must be denied on that basis. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.