Citation Nr: 20041263 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 17-22 694 DATE: June 17, 2020 ORDER New and material evidence has been received, and the claim for service connection for headaches is reopened. Service connection for headaches is granted. FINDINGS OF FACT 1. An unappealed September 2013 rating decision denied service connection for headaches. 2. The evidence associated with the claims file following the September 2013 denial of the Veteran’s claim for service connection for headaches is new and material evidence 3. The Veteran’s headaches are etiologically related to service. CONCLUSIONS OF LAW 1. The September 2013 rating decision denying entitlement to service connection for headaches is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.300, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim for service connection for headaches. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for headaches have been met.38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to April 1985. Of critical importance here, a February 1986 VA Administrative Decision determined that the Veteran’s period of service from July 20, 1976 to July 19, 1980 was under honorable conditions; and his period of service from July 20, 1980 to April 18, 1985 was under dishonorable conditions. On appeal is a September 2015 rating decision issued by the Department of Veteran’s Affairs (VA) Regional Office (RO) that confirmed a previous denial of service connection for headaches after finding the evidence submitted was not new and material. A videoconference Board hearing was held in this matter in March 2020 before the undersigned Veterans Law Judge, and a transcript of the proceedings is associated with the claims file. Before deciding the service connection claims on the merits, the Board must first consider whether new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105. This is so regardless of the RO’s actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully below, new and material evidence has been submitted to reopen the claim of service connection for headaches. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen the claim for service connection for headaches. The Veteran seeks service connection for headaches. In a September 2013 rating decision by the RO, the Veteran’s claim for service connection for headaches was denied. Although the Veteran’s service treatment records showed complaints of headaches, and a positive opinion was rendered by a VA contract examiner, service connection was denied because the RO noted the Veteran’s service from July 20, 1980 to April 18, 1985 was held to have been under dishonorable conditions. The Veteran was notified of the denial, but did not perfect an appeal, and the September 2013 rating decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed a new claim in June 2015. Evidence added to the claims file since the final September 2013 rating decision includes VA treatment records; private treatment records; additional lay evidence; and testimony at a Board Hearing in March 2020. In particular, the Veteran testified to the chronicity of headaches ever since his honorable period of service and made reference to specific service treatment records in May 1977, which were during his period of honorable service. These VA and private treatment records, as well as the Veteran’s testimony, constitute new and material evidence as it relates to unestablished facts necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met and the claim for service connection for headaches is reopened. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record is a VA examination conducted in August 2013. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for headaches. The Veteran seeks service connection for headaches. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has a current diagnosis of headaches that is a result of his honorable military service. At the outset, as noted above, a February 1986 VA Administrative Decision determined that the Veteran’s period of service from July 20, 1976 to July 19, 1980 was under honorable conditions. The Veteran’s service treatment records are associated with the claims file. The March 1976 enlistment Report of Medical Examination reflects the Veteran has a normal examination with only defective vision noted, and he was determined to be fit for duty. A May 1977 record reflects a complaint of headaches. The April 1985 exit Report of Medical History reflects the Veteran complained of frequent or severe headaches. The Veteran underwent a VA examination for headaches in August 2013. The examiner noted that the Veteran reported his headaches began in 1977 while serving in the military. His current symptoms are sharp to dull frontal temporal headaches that he treats with over the counter medication. The examiner opined that the Veteran’s headaches are at least as likely as not related to service. As rationale, the examiner stated the Veteran described headaches while in service; that he mentioned recurrent severe headaches during his separation physical; and, that he took over the counter pain medication for most of his life for headaches. Therefore, the examiner concluded, it is as least as likely as not the headaches were caused or incurred during military service. The Veteran’s post-service private treatment records from Baptist Health Neurological Clinic are associated with the claims file. An October 2015 record reflects the Veteran began having migraines at age 19 and continues to have headaches with sensitivity to light and sound. A January 2016 “Problem List” includes migraines, for which he was prescribed medication. The Veteran’s post-service VA treatment records are associated with the Veteran’s claim file. A February 2017 record from the Montgomery VAMC reflects the Veteran continues to have complaints of headaches. A January 2020 record from the Central Alabama VAMC reflects the Veteran has a history of migraine headaches and takes Imitrex. In May 2020, the Veteran testified at a Board hearing. The Veteran stated that it is documented in his service treatment records that he had an injury in March of 1977, and another one in May of 1977, where he complained of and was treated for headaches. He stated further he had very limited access to care while in the field, and if a soldier went to sick call he was looked upon as a wimp. He also stated he had headaches in service; continued to have headaches when he left service; and, he is currently on medication for headaches, which he gets 3 or 4 times per week. In light of the evidence noted above, the Board finds that the Veteran has a current diagnosis of headaches that is directly related to his military service. In particular, the Board looks to the opinion of the August 2013 VA examiner who opined that it was at least as likely as not that the Veteran’s headaches were caused or incurred during his military service. The Board also finds the Veteran to be credible in his statements that he had headaches during his period of honorable service and that the headaches continued ever since this period of service. Lastly, the Board finds that the VA and private treatment records support the Veteran’s contentions, as these record document a chronic history of diagnosis and treatment of headaches over the years. As such, and resolving all reasonable doubt in the Veteran’s favor, the Veteran’s service-connection claim for headaches is granted. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, Associate 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.