Citation Nr: 21001335 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 19-06 968 DATE: January 7, 2021 ORDER The Veteran’s petition to reopen her claim of entitlement to service connection for chronic headaches is granted. Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for other specified trauma-and stressor-related disorder is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. An unappealed April 1990 rating decision, among other things, denied the Veteran’s claim of entitlement to service connection for headaches because her in-service headaches were deemed acute and resolved. 2. The evidence submitted since the April 1990 rating decision relates to unsubstantiated facts and raises the reasonable possibility that the Veteran will prevail on her claim of entitlement to service connection for headaches. 3. The Veteran’s chronic headaches onset during active service. 4. The Veteran’s diagnosed other specified trauma-and stressor-related disorder is related to her active service. CONCLUSIONS OF LAW 1. An April 1990 rating decision denying the Veteran’s claim for service connection for chronic headaches is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the April 1990 rating decision denying the Veteran’s claim for service connection for headaches, and that claim is reopened. 38 U.S.C. § 501; 38 C.F.R. § 3.156. 3. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for other specified trauma-and stressor-related disorder are 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 had active air service from August 1984 to March 1988 and from February 1991 to July 1991. The Veteran also served in the U.S. Air Force Reserves (USAFR), retiring with 20 years of service in October 2008. The Veteran testified before the undersigned Veteran’s law judge in a November 2020 videoconference Board hearing. A transcript of that hearing is of record. 1. The Veteran’s Petition to Reopen Her Service Connection Claim for Chronic Headaches Irrespective of the Agency of Original Jurisdiction’s (AOJ) actions, the Board of Veterans’ Appeals (the Board) must decide whether the Veteran has submitted new and material evidence to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). Generally, a claim that has been denied in an unappealed AOJ decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 501. New evidence means 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. The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran sought service connection for headaches in September 1989. The AOJ denied the Veteran’s claims in an April 1990 rating decision. The AOJ determined that the Veteran’s in-service headaches were acute and had resolved. The Veteran was notified of that rating decision in April 1990. The Veteran did not initiate an appeal of that rating decision, and new and relevant evidence was not received within a year of the decision. Accordingly, the April 1990 rating decision became final. See 38 U.S.C. § 7105(c). The Veteran petitioned to reopen her claim in April 2011. Evidence added to the record since April 2011 suggests that the Veteran’s headaches were neither acute nor resolved. July 2013 VA treatment records notes that stress and migraine headaches were a current medical problem for the Veteran. In her November 2020 hearing testimony, the Veteran reported continued chronic headaches during active service that continued thereafter. Her representative argued that her testimony is new evidence showing that her chronic headache disorder had not resolved during active service. The July 2013 VA treatment records and November 2020 hearing testimony are new to the record, relate to unsubstantiated facts, and raise the reasonable possibility that the Veteran will prevail on her claims of entitlement to service connection for migraine headaches. The Veteran’s claim is reopened. 2. Entitlement to Service Connection for Headaches The Veteran contends that her chronic headache disorder onset during active service. The Board agrees. The record documents a current diagnosis for chronic headaches, described in July 2013 VA treatment records as migraine headaches and stress-related headaches. The record shows that headaches onset during the Veteran’s first period of active service from August 1984 to March 1988. The Veteran’s August 1983 pre-enlistment examination does not note a history of headaches; however, March 1987 service treatment records note complaints of headaches. Her July 1988 separation examination also notes complaints of chronic headaches. In a statement accompanying her September 1989 claim, the Veteran reported headaches onset in October 1985. A December 1989 VA examination noted onset in March 1985, with headaches every six months. By 1987, the Veteran’s headaches were occurring every three months. The Veteran’s chronic headaches have continued since her separation from periods of active service in March 1988 and July 1991. At the time of the December 1989 VA examination, headaches occurred two to three times per month. The Veteran’s periodic examinations during her service in the USAFR consistently note chronic headaches. For instance, a June 1992 report on medical history reported frequent headaches, and an October 1996 report on medical history reported frequent and severe headaches. In light of the foregoing, the Board concludes that the preponderance of the evidence shows that the Veteran’s chronic headache disorder onset during active service and has been continuous since her separation from active service. Entitlement to service connection for headaches is granted. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. 3. Entitlement to Service Connection for an Acquired Psychiatric Disorder The Veteran is seeking service connection for PTSD. The record includes diagnoses of various acquired psychiatric disorders to include bipolar affective disorder, PTSD, depression not otherwise specified, a mood disorder, and other specified trauma-and stressor-related disorder. Pursuant to the holding in Clemons v. Shinseki the Board will thereby characterize the Veteran’s claim of entitlement to service connection for PTSD to include any acquired psychiatric disorder. 23 Vet. App. 1, 5 (2009). The first two criteria for service connection are met here. The record includes current diagnoses for bipolar affective disorder, PTSD, depression not otherwise specified, a mood disorder, and other specified trauma-and stressor-related disorder. The first requirement for service connection is met. The record also includes statements from the Veteran describing numerous events during her periods of active service involving sexual advances, romantic attention, sexual jokes, and treatment based on the Veteran’s gender. See, e.g., statements received in February 2012, January 2014, and September 2014. The record also includes a photograph of her stomping of a floral bouquet, which she describes as unwanted, and supporting her statements that she often received flowers from fellow service members. A September 2014 from an unidentified individual (the signature is not legible) recalls the stress that the Veteran would experience in terms of a having a romantic relationship and her report of being harassed in service. The Board will dispense with a summary and conclude that the second element of service connection is met. Thus, the question for the Board is whether the Veteran’s current acquired psychiatric disorder is due to her two periods of active service. The Board concludes that it is. The Veteran received a VA examination in June 2015. The examiner concluded that the Veteran did not satisfy the diagnostic criteria for PTSD because she was not victim of threatened or actual sexual violence. The examiner, however, diagnosed the Veteran with other specified trauma-and stressor-related disorder and concluded that it was more likely than not due to Veteran’s active service. The examiner’s opinion is highly probative. It was based on a thorough review of the Veteran’s claims file, to include her service treatment records and service personnel records. The history of treatment is well-documented in the examination report. The third requirement for service connection is met. In light of the foregoing, entitlement to service connection for other specified trauma-and stressor-related disorder is granted. REASONS FOR REMAND 1. Entitlement to Service Connection for Bilateral Hearing Loss The Board concludes that the Veteran’s claim for service connection for hearing loss must be remanded to afford her an opportunity to submit additional evidence and to afford her a new VA examination. During her November 2020 hearing testimony, the Veteran reported that she received an audiological examination from a national membership-only warehouse club in 2013, 2014, or 2015. The record includes audiological results from an April 2011 test from the membership club; however, there are no results for an examination between 2013 and 2015. The Veteran’s hearing testimony indicates that she received only one hearing test from the national membership-only warehouse club; however, the time frame provided in her hearing testimony suggests that she had a hearing test more recently than April 2011. Thus, the Board concludes that the Veteran’s claim should be remanded to afford her an opportunity to submit records for the examination discussed during her November 2020 hearing if it is separate and distinct from the April 2011 hearing test already of record. The Board also notes that the Veteran testified that her hearing has not noticeably worsened since her most recent VA audiological examination in May 2013 showing that her hearing acuity, while abnormal, did not satisfy the criteria for hearing loss for VA purposes. See 38 C.F.R. § 3.385. She also testified that she uses closed captioning when watching television. Seeing as this indicates some worsening in the Veteran’s hearing, she should be afforded a new VA audiological examination to determine the severity and etiology of any hearing loss. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the national membership-only warehouse club. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA audiological examination. The examiner must review the claims file and is asked to provide a response to the following: Does the Veteran have hearing loss for VA purposes? Is hearing loss at least as likely as not related to service, including her conceded exposure to noise during service. The Board notes that the Veteran was an aircraft crew chief during active air service, and VA has conceded in-service noise exposure. A rationale to support the opinion proffered must be provided. Is hearing loss at least as likely as not that hearing loss (1) began during active service, (2) manifested within 1 year after discharge from active service, or (3) was noted during service with continuity of the same symptomatology since service? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.