Citation Nr: 20021351 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-25 145 DATE: March 25, 2020 ORDER New and material evidence having been received, the claim of service connection for a nervous condition is reopened; to this extent only the appeal is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition and posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a nervous condition was previously denied by a June 1972 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the June 1972 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 1972 rating decision denying service connection for a nervous condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2019). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a nervous condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has recharacterized the Veteran’s claim of service connection for a nervous condition as one for service connection for an acquired psychiatric disorder, claimed as a nervous condition and PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In a May 2017 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested to appear at a hearing before the Board. The Veteran failed to appear for the hearing before the Board scheduled in November 2019. He has not provided good cause reasons for his failure to appear; therefore, his hearing request is considered to be withdrawn. New and Material Evidence The Veteran’s claim of service connection for a nervous condition was originally denied by June 1972 decision. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 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. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether a 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); Justus v. Principi, 3 Vet. App. 510 (1992). The June 1972 decision denied the claim of service connection for a nervous condition based on a finding that the Veteran’s diagnosis of adjustment reaction of adult life was a constitutional or developmental abnormality and not a disability under the law. Evidence added to the record since the June 1972 denial includes an October 2016 VA examination, which diagnosed the Veteran with major depressive disorder. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the June 1972 decision. It is also material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for a nervous condition, i.e., a diagnosis of a psychiatric disability, and raises a reasonable possibility of substantiating the claim. Since the evidence is both new and material, the claim of service connection for a nervous condition is reopened.   REASONS FOR REMAND Headaches and Acquired Psychiatric Disorder The record includes a December 2016 letter from Dr. R.A., Family Health Care, who indicated that the Veteran was his patient and was suffering from headaches due to trauma. However, there are no treatment records from Dr. R.A. in the claims file. On remand, attempts should be made to obtain complete treatment records from Dr. R.A., and the Veteran should be afforded the opportunity to identify any additional treatment records not in the claims file. As Dr. R.A.’s letter indicates that these private treatment records could potentially be relevant to the claim for service connection for an acquired psychiatric disorder, remand is also necessary for the claim for service connection for an acquired psychiatric disorder. Regarding the claim for service connection for headaches, the Veteran underwent a VA examination in October 2016. The Veteran was diagnosed with migraine headaches. The examiner provided an opinion that the Veteran’s headaches clearly and unmistakably existed prior to service and were not aggravated beyond their natural progression by an in-service event, injury, or illness. The examiner stated that the Veteran had a prior history of severe headaches upon entry into service in 1966, and that there was only one episode of treatment for severe headaches in 1967. There was no evidence of increased frequency or severity of pre-existing headaches during active duty which would support aggravation beyond natural progression. However, in rendering the negative opinion, the examiner did not address the Veteran’s statements that his fall down a flight of stairs in Defense School in June 1967 was the cause of his headaches, and that he had repeated episodes of severe headaches following this incident and his visit to the emergency room in December 1967. Therefore, remand for a new VA examination is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following actions: 1. Contact the Veteran and ask him to complete a VA Form 21-4142 for Dr. R.A., Family Health Care. Make two requests for the authorized records from Dr. R.A., unless it is clear after the first request that a second request would be futile. 2. Also contact the Veteran and ask him to identify all other clinicians who have recently treated him for his headaches and acquired psychiatric disorder, if any. Ask the Veteran to complete a VA Form 21-4142 for any identified clinicians. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headaches. His electronic claims file, including a copy of this decision and remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After a review of the record and an examination of the Veteran, the examiner must provide the following opinions: a) Whether there is clear and unmistakable (obvious or manifest) evidence that any diagnosed headache disorder, including migraine headaches, preexisted the Veteran’s period of active duty service (from January 1967 to January 1970).   b) If the answer is that a diagnosed headache disorder, including migraine headaches preexisted service, then is there clear and unmistakable (obvious or manifest) evidence that any such preexisting disability DID NOT increase in severity beyond the natural progression of the disability during the above noted period of active duty service (i.e., the disability was not aggravated by service). c) If the answer to questions (a) and (b) is “no,” then is it at least as likely as not (a 50 percent probability or greater) that any diagnosed headache disorder, including migraine headaches, is related to the Veteran’s active duty service, to include his fall down a flight of stairs and hitting his head in June 1967. The Veteran’s service treatment records must be addressed, including his entrance examination, the June 1967 entry concerning his fall down a flight of stairs, a December 1967 emergency room visit, and his separation examination. The Veteran’s statements must also be addressed, including his statements that he had repeated episodes of severe headaches following the June 1967 incident and his visit to the emergency room. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally,   the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.