Citation Nr: 21063395 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-37 326 DATE: October 14, 2021 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for chronic headaches. Entitlement to service connection for chronic headaches, as secondary to service-connected post-traumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. In a December 2009 rating decision, the Regional Office (RO) denied entitlement to service connection for chronic headaches. 2. Evidence received subsequent to the December 2009 rating decision relates to an unestablished fact necessary to substantiate the claim; is not cumulative of the evidence previously of record; and raises a reasonable possibility of substantiating the claim of entitlement to service connection. 3. Resolving reasonable doubt in favor of the Veteran, the competent evidence of record shows that the Veteran's chronic headaches are secondary to his service-connected PTSD. CONCLUSIONS OF LAW 1. The December 2009 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for chronic headaches. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The criteria for entitlement to service connection for chronic headaches, as secondary to PTSD, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to November 1979 from September 1990 to April 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) RO denying to reopen the Veteran's claim for service connection for chronic headaches. In October 2014, the Veteran timely filed a notice of disagreement (NOD). In February 2015, the RO issued a rating decision reopening the claim and then denying it on the merits and the Veteran submitted another NOD. In May 2016 the RO issued a statement of the case (SOC). In June 2016 the Veteran perfected a substantive appeal and requested a hearing before a Veterans Law Judge (VLJ). In July 2021, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of that proceeding will be associated with the record. 1. New and material evidence has been received to reopen the claim for entitlement to service connection for chronic headaches. The Veteran is seeking service connection for chronic headaches. By way of history, in a December 2009 rating decision, the RO denied entitlement to service connection for chronic headaches because it was not an undiagnosed illness due service in the Persian Gulf and there was no established nexus. The Veteran submitted a timely NOD and in September 2010, the RO issued a statement of the case (SOC). The Veteran initiated a substantive appeal and in October 2010 and the RO issued supplemental SOCs in November 2010 and November 2012. In March 2013, the Veteran withdrew his claim. The September 2009 decision accordingly became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 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(c). 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 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. 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Board finds that new and material evidence has been received, to include March 2013 VA treatment records (containing positive nexus opinions) and a June 2014 private nexus opinion. This evidence satisfies the definition of new and material evidence, as it raises a reasonable possibility of substantiating the claim. This evidence was not of record at the time of the prior final denial and provides evidence towards substantiating the Veteran's claim. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of service connection for chronic sleep headaches. 2. Entitlement to service connection for chronic headaches, as secondary to service-connected PTSD, is granted. The Veteran is seeking service connection for chronic headaches. Specifically, he contends that his headaches started during service as secondary to stress caused by his service-connected PTSD. See December 2013 Claim. Here the Veteran is currently diagnosed with chronic headaches and is service connected for PTSD. See January 2015 VA Examination. Following a review of the evidence of record and for the reasons described below, the Board finds that secondary service connection for chronic headaches is warranted. As the Veteran has contended his disabilities are secondary to his service-connected PTSD and the evidence supports a finding that the Veteran is entitled to service connection on a secondary basis, this analysis will primarily focus on a secondary theory of service connection. Regarding the first and secondary elements of service connection, the Veteran has a current diagnosis of chronic headaches. See June 2015 VA Examination. The Veteran is also service connected for PTSD. See November 2010 Rating Decision. Therefore, the first and second elements of secondary service connection have been met and the salient question is whether the Veteran's chronic headache is related to his service-connected PTSD. Turning to the evidence of record, in a March 2008 VA treatment record, a neurologist indicated that the Veteran reported that he has experienced chronic headaches since his service in Southwest Asia. In a March 2013 VA treatment record, the Veteran's social worker discussed with him the possibility that his headaches were related to his stress/PTSD. In a November 2009 VA examination, the Veteran reported headaches since his deployment in Southwest Asia. See August 2014 Buddy Statement; June 2014 Statement; June 2014 Buddy Statements; December 2013 Statement; October 2010 Buddy Statements. In a December 2010 private opinion, the Veteran's neurologist asserted that the Veteran's headaches, which have been present since 1991 did not seem to be associated with his pulmonary embolism. In a June 2014 private opinion, the Veteran's treating physician opined that the Veteran's chronic headaches are not due to a physical impairment as physician therapy has not improved the Veteran's condition. Rather, it is highly likely that the Veteran's chronic headaches are due to his PTSD. See also October 2014 Private Treatment Records (chiropractic notes indicating similar conclusions). Finally, following a June 2015 VA examination, an examiner opined that it was less likely than not that the Veteran's disability was related to PTSD. He explained that that the Veteran has a significant cervical disability and works at night. As such his disability may be due to his mental illness, to include anxiety and stress, and/or cervical disorders. Based on the foregoing, the Board finds that the evidence is, at the least, evenly balanced as to whether his chronic headaches are secondary to his service-connected PTSD. Resolving reasonable doubt in the Veteran's favor, the Board therefore finds that the third element of service connection has been met. Gilbert, supra. Accordingly, the Veteran has chronic headaches, is service connected for PTSD, and a positive secondary service connection nexus has been established. As such, the three elements necessary for secondary service connection have been met and the claim for service connection chronic headaches, as secondary to service-connected PTSD, is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.