Citation Nr: 20031827 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 20-15 196 Date: May 6, 2020 ORDER The appeal to reopen a claim of service connection for a migraine headaches disability is granted. REMANDED Entitlement to service connection for a migraine headache disability on de novo review is remanded. FINDING OF FACT 1. An unappealed June 2012 rating decision denied the Veteran service connection for migraine headaches, finding essentially that the evidence did not show that he had a chronic migraine headache disability. 2. Evidence received since the June 2012 decision shows a current diagnosis of a chronic headache disorder; relates to an unestablished fact necessary to substantiate the claim of service connection for a headache disability; and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a migraine headache disorder may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from June 1976 until February 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 Department of Veterans Affairs (VA) rating decision, which continued a denial of service connection for migraine headaches. While the Regional Office (RO) reopened the claim and decided it on the merits, the Board must make its own determination as to whether new and material evidence to reopen the claims was received, in order to establish its jurisdiction to review de novo the merits of the previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). New and Material Evidence 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 a claim should be reopened, the credibility of the newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening”. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The appeal to reopen a claim of service connection for a migraine headache disability is granted A June 2012 rating decision, in part, denied the Veteran service connection for migraines headaches, finding, in essence, that it was not shown that he had a current chronic migraine headache disability. He was informed of the decision. He timely filed (via his agent) a non-specific (as to the nature of the disagreement) and erroneous (as to identifying information) expression of disagreement with the rating decision (which had addressed multiple issues). Upon being advised that the document received could not be accepted as a valid notice of disagreement (NOD) and of his post-decisional options, he elected an informal hearing with a Decision Review Officer (DRO) at the RO to clarify and resolve the matter. At such informal DRO conference the matter of service connection for a migraine headache disability was not raised/addressed. Therefore, there being no timely valid NOD with June 2012 denial of service connection for a migraine headache disability, that decision became final. 38 U.S.C. § 7105. The evidence of record at the time of the June 2012 rating decision included the Veteran’s STRs from April 1976 through February 2001, and VA treatment records from September 2001 until January 2006. The Veteran’s September 1977, December 1986, May 1993, June 1993, and February 1996 service treatment records (STRs) show that during active service he was seen and treated for complaints of headaches and a concussion. Because the previous denial was based on a finding that the Veteran did not have a chronic migraine headache disability, for evidence to be new and material in the matter, it must be evidence not of record in June 2012, that tends to show he has a migraine headache disability (that may be related to his service). Evidence received since the June 2012 rating decision includes VA treatment records (showing a diagnosis and ongoing treatment for chronic headaches); reports of August 2014 and September 2017 VA examinations (with opinions that the Veteran’s current chronic headache disorder is unrelated to his active service and complaints of headaches/injury therein), articles submitted by the Veteran (received February 2018) stating that veterans are more likely to develop migraines because of stress and anxiety, a March 2018 buddy/lay statement from E. J. (reporting her observations of the Veteran’s migraine headache symptoms), and his statements in support of the claim. September 2017 VA treatment records note a May 21, 2015 diagnosis of a chronic headache disorder. VA treatment records also show that in May 2017 a brain tumor was diagnosed. Such medical records suggest the Veteran has a headache disability, and (together with notations in his STRs) raise a reasonable possibility of substantiating the claim, and thus meet the low threshold standard for reopening a claim endorsed by the CAVC in Shade v. Shinseki, 24 Vet. App. 110, 120-21 (2010). Accordingly, new and material evidence has been received, and the claim of service connection for a migraine headache disability may be reopened. De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Entitlement to service connection for chronic migraines is remanded. The Veteran contends that his current migraines/chronic headaches began during his active service and have continued since. He asserts that his complaints of headaches in service (including from injury in a bicycle accident therein) early manifestations of his current migraine headaches. As noted above, the Veteran’s STRs show complaints and and treatment for headaches and a concussion (sustained in a bicycle accident). A CT scan during service (after the bicycle accident) was normal. On September 2000 retirement examination, his head, face, neck, scalp, and sinuses were “normal” on clinical evaluation; he denied frequent headaches, head injury or sinusitis in a contemporaneous report of medical history. The first post-service notation of complaint and treatment for headaches is in February of 2004 (3 years after service). September 2017 VA treatment records show a current diagnosis of chronic headaches (since May 2015). Under the circumstances described, whether a current migraine disability is related to the Veteran’s service/headaches complaints and injury therein, is a medical question. The VA medical opinions in this matter are inadequate for rating purposes, as they are reflect a lack of familiarity with the accurate (and complete) record, and do address the significance of pertinent notations in the STRs (e.g., do not discuss the possibility of a concussion from a bicycle accident in service being an etiology for the headaches). Furthermore, the rationale notes that the Veteran’s postservice complaints of headaches began a decade after service; however, they were noted as early as in 2004 (3 years following his separation). The examiner also failed to acknowledge that the Veteran was seen by an eye doctor in service for blurred vision and headaches. Accordingly, development for another (adequate) medical advisory opinion (that reflects familiarity with the complete accurate record, and addresses all medical questions raised) in this matter is necessary. The matter is REMANDED for the following: Arrange for the Veteran’s record to be forwarded to a neurologist (or other appropriate clinician) for review and a medical opinion regarding the likely etiology of his diagnosed migraine headache disorder. The examiner should note the explanation above, and provide opinions that respond to the following [if further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged): (a) Identify the likely etiology for the Veteran’s current migraine/headache disability. Is it at least as likely as not (a 50% or greater probability) that it was manifested (and incurred) in service, or is otherwise shown to be etiologically to his service (and the headache and other complaints and injury sustained in a bicycle accident therein? The rationale for the opinion must acknowledge the current diagnosis of a headache disorder, and reflect consideration of all related complaints and the bicycle accident in service, as well as the February 2004 (many years earlier than acknowledged by prior opinion-providers) first notations of headaches complaints postservice. (b) If the current migraine headache disorder is determined to be unrelated to the Veteran’s service and headache complaints and injury resulting in concussion injury therein, identify the etiology for the headaches disorder that is considered to be more likely, and explain why that is so. All opinions must include rationale, with citation to supporting clinical data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board Norman R. McNeal 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.