Citation Nr: 21069093 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-31 287A DATE: November 17, 2021 ORDER Service connection for residuals of head trauma is denied. Service connection for migraine headaches is granted. New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for a neurological disorder is denied. FINDINGS OF FACT 1. At no time during the pendency of the claim does the Veteran have a current disability of residuals of in-service head trauma, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. 2. Resolving all doubt in his favor, the Veteran's current headache disorder, diagnosed as migraine headaches, had its onset in service. 3. In a final June 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for neurological disorders, characterized as chorea, anti-phospholipid syndrome, multiple sclerosis, neuropathy, and trigeminal neuralgia. 4. Evidence added to the record since the final June 2013 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a neurological disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of head trauma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The June 2013 rating decision that denied service connection for neurological disorders, characterized as chorea, anti-phospholipid syndrome, multiple sclerosis, neuropathy, and trigeminal neuralgia, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for a neurological disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1955 to August 1961 and from November 1961 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2018, the Board remanded the case for additional development and, in September 2020, denied the claims on appeal. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Remand (JMR), thereby vacating the September 2020 decision and remanding the case to the Board for further adjudication. As an initial matter, the Board again finds that there has been substantial compliance with the November 2018 remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)). In this regard, such directed the AOJ to obtain any outstanding service treatment records, to specifically include those dated prior to September 1961. Following the AOJ's request, all available service department records were associated with the record. See National Personnel Records Center (NPRC) response, September 3, 2019. Furthermore, in a letter dated September 4, 2019, the Veteran was notified of the status of such request and provided the opportunity to provide any records in his possession. 38 U.S.C. § 5103A (b)(2); 38 C.F.R. § 3.159(e). Furthermore, in October 2019, the Veteran was afforded a VA examination in order to ascertain the nature and etiology of his claimed head trauma. Thus, there has been substantial compliance with the prior remand orders and appellate review may proceed without prejudice to the Veteran. 1. Entitlement to service connection for residuals of head trauma, to include headaches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to include migraine headaches, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that he incurred multiple head injuries during his military service. Specifically, he claimed that he was rear-ended and hit his head on the ceiling of the vehicle during a 1968 motor vehicle accident. Also, he stated that he took numerous blows to the head as a member of a U.S. Navy boxing team in the 1950s, which resulted in headaches, and reported that he hit his head on a low doorway on an unspecified date. Thus, he claims that service connection is warranted for residuals of such reported in-service head trauma. In this regard, the Veteran's service personnel records show that he was involved a civil suit for a motor vehicle accident in August 1968. Moreover, an October 1963 service treatment record (STR) indicates that he complained of periodical migraine headaches since 1959. Further, subsequent STRs, to include those dated in December 1966, January 1972, at which time it was noted that the Veteran had 12+ years of common migraines with cluster like component, and December 1977, reflect complaints of headaches. Finally, while such records do not confirm the Veteran's participation on any boxing team as part of his military duties, the Board acknowledges such in-service activity based on the testimony of the Veteran and his spouse. However, as the evidence fails to show that the Veteran has a current disability of residuals of such reported in-service head trauma at any time proximate to his claim, service connection must be denied. In this regard, VA and private treatment records are negative for a diagnosis of a traumatic brain injury (TBI) or residuals of in-service head trauma. Further, in October 2019, after reviewing the file, interviewing the Veteran, and conducting a relevant examination, a VA examiner determined that he did not have a diagnosis of a TBI. Rather, she stated that a review of the records indicated diagnoses of unrelated migraine headaches, stroke, microvascular ischemic dementia, antiphospholipid syndrome-related chorea movement disorder, and sensorimotor peripheral neuropathy. Further, while she noted deficits in memory, attention, concentration, executive functioning, social interaction, motor activity, and orientation to person time, place, and situation, she found such to be related to multiple non-TBI diagnoses, to include stroke, microvascular ischemic dementia, anti-phospholipid syndrome-related chorea/abnormal movements, sensorimotor peripheral neuropathy, and epilepsy. The examiner further noted that STRs document treatment for headaches and other symptoms without ever mentioning any blow to the head. In this regard, she found it very compelling that the Veteran's evaluation and diagnosis of migraine headaches in the early 1960s, as well as ongoing in-service treatment for such headaches, did not include any reference to in-service head trauma. Thus, the examiner ultimately opined that it less likely than not that the Veteran's claimed disorder was incurred in or caused by his claimed in-service head trauma. The Board affords great probative weight to the October 2019 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary, and the remainder of the objective evidence supports the October 2019 VA examiner's conclusions. In this regard, the Board notes that, while the Veteran and his spouse testified that physicians told them that the Veteran's MRI scans show the type of brain damage incurred in trauma to the head, such is not borne out by the objective evidence of record. Rather, private treatment records from May 2004 show that diagnostic studies of the Veteran's brain revealed non-specific degenerative changes with a possible relationship to focal inflammation or small vascular malformation, but there was no citation of brain trauma as a cause. Further, in May 2014, the Veteran's VA treatment provider, an intern, indicated that, in response to the Veteran's spouse's inquiry whether his neurological symptoms could be related to his reported in-service trauma, she indicated that, in general head trauma could cause dementia, but not anti-phospholipid syndrome chorea or trigeminal neuralgia. Further, she noted that she was unclear about the Veteran's history of head trauma, to include the nature and extent of it. Nonetheless, the treatment provider ultimately indicated that neuropsychological testing was mostly consistent with vascular dementia. Moreover, as noted previously, the Veteran's VA and private treatment records are negative for a diagnosis of a TBI or residuals of in-service head trauma. The Board also considered the Veteran's and his spouse's assertions that his current symptoms are related to in-service head trauma; however, as lay people, they do not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such the Veteran's various symptoms, and whether his reported in-service head trauma resulted in any residuals, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as such requires knowledge of the neurologic system and the impact of trauma to the brain. Thus, such may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's and his spouse's opinions as to the etiology of his reported symptoms is not competent evidence and, consequently, is afforded no probative weight. In summary, the Board finds that at no time during the pendency of the claim does the Veteran have a current disability of residuals of in-service head trauma, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. Consequently, service connection for such disorder is not warranted. However, in the JMR, the parties found that the Board erred in failing to consider whether the Veteran's headaches had their onset in, or are otherwise related to any other aspect of his military service, to include his reported in-service treatment for such complaints, such that service connection was warranted for such disorder as separate and distinct from residuals of head trauma. In this regard, the Board notes that the Veteran has a current diagnosis of migraine headaches as evidenced by his VA treatment records and the October 2019 VA examination. Furthermore, as previously noted, an October 1963 STR indicates that he complained of periodical migraine headaches since 1959 and subsequent STRs, to include those dated in December 1966, January 1972, at which time it was noted that the Veteran had 12+ years of common migraines with cluster like component, and December 1977, reflect complaints of headaches. Furthermore, the Veteran and his spouse have reported a continuity of headache symptomatology since service, and the October 2019 VA examiner noted that the record reflected a diagnosis of chronic migraine headaches that had their onset during his military service. Consequently, in light of the in-service diagnosis of migraine headaches, evidence of a continuity of symptomatology, and a current diagnosis of the same chronic disease, the Board resolves all doubt in favor of the Veteran and finds that his current headache disorder, diagnosed as migraine headaches, had its onset in service. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neurological disorder. By way of background, in October 2010, VA received the Veteran's original claim for service connection for a neurological disorder, to include chorea, anti-phospholipid syndrome multiple sclerosis, neuropathy, and trigeminal neuralgia, which he claimed was due to exposure to herbicide agents coincident with his service in the Republic of Vietnam. In a June 2013 rating decision, the AOJ considered the Veteran's STRs, post-service treatment records, lay statements, and September 2011 and January 2013 VA examination reports, and denied service connection for the aforementioned disorders. In this regard, the AOJ noted that, even for those neurological disorders currently diagnosed, the evidence did not show that such was incurred in or related to his military service, to include his in-service treatment for neurologic complaints and/or his claimed in-service exposure to herbicide agents. The AOJ further observed that, while the Veteran's STRs showed evaluation of neurologic symptomatology and an in-service diagnosis of neuropathy, such had resolved completely prior to separation from service. Further, while Dr. Lee indicated in February 2012 that the Veteran's neurological disorders were related to his in-service herbicide exposure, she did not provide a rationale, and the aforementioned VA examiners found no relationship between his diagnosed neurological disorders and his military service. In June 2013, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Rather, in April 2014, he filed a new claim for service connection for a neurological disorder, claimed as secondary to in-service head trauma. In this regard, such claim may not serve as a notice of disagreement because it did not express both disagreement with the June 2013 rating decision and a desire for appellate review. 38 C.F.R. § 20.201. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. In this regard, the Board noted in the September 2020 decision that, while updated treatment records were obtained within one year of the issuance of the June 2013 rating decision and additional service department records have since been received, they are irrelevant to the Veteran's claim for service connection for a neurological disorder. 38 C.F.R. §§ 3.156(b), (c). However, in the JMR, the parties found that the Board did not provide an adequate statement of reasons or bases for its determination that new and material evidence was not received within a year of the June 2013 rating decision. In this regard, the parties noted that the June 2013 rating decision denied service connection for the Veteran's claimed neurological disorder of chorea based, in part, on a finding that the evidence of record failed to show a clinical diagnosis of such disorder, and VA treatment records received within one year of the issuance of such decision showed a diagnosis of chorea. Specifically, the parties cited to an August 2013 VA treatment record reflecting referral for a consultation for chorea and seizures and a November 2013 VA treatment record showing a diagnosis of antiphospholipid syndrome associated with chorea. However, after thoroughly reconsidering the evidence of record, the Board again finds that evidence of a diagnosis of chorea included in the VA treatment records associated with the file within a year of the June 2013 rating decision is, in fact, duplicative of the evidence of the record at the time of the issuance of such rating decision. Specifically, in the June 2013 rating decision, the AOJ considered entitlement to service connection for the claimed neurological disorder of antiphospholipid syndrome and, in such analysis, acknowledged a current diagnosis of such disorder with associated choreiform movement syndrome. In this regard, chorea is defined as "the occurrence of a variety of continual, rapid, highly complex, jerky, dyskinetic movements." Dorland's Illustrated Medical Dictionary, 354 (32nd ed. 2012). Thus, such diagnosis and choreiform movement syndrome contemplate the same disorder, and the AOJ acknowledged and considered the presence of such current disability in the adjudication of the Veteran's claim for service connection for the neurological disorder of antiphospholipid syndrome. Consequently, the subsequent notations of chorea, to include as associated with antiphospholipid syndrome, in the VA treatment records associated with the file within a year of the issuance of the June 2013 rating decision are cumulative or redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a neurological disorder. Therefore, the Board finds that the June 2013 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the final June 2013 rating decision includes additional statements from the Veteran and his spouse, to include their testimony at the August 2018 Board hearing, private and VA treatment records, and July 2014 and October 2019 VA examination reports. In this regard, the Veteran's and his spouse's lay statements are duplicative of those previously of record at the time of the June 2013 rating decision, as such continue to reflect their belief that his neurological disorder is related to his military service, to include his treatment for related complaints therein, his reported in-service head trauma, and his exposure to herbicide agents. Furthermore, the newly received treatment records similarly continue to reflect current treatment for the Veteran's neurological disorder, but do not suggest that such is related to any instance of his military service, to include as discussed in the preceding section. Moreover, after an extensive review of the Veteran's STRs and post-service treatment records, the July 2014 VA examiner opined that the Veteran's neurological disorder, variously diagnosed, were less likely as not related to his complaints or treatment in service, and the October 2019 VA examiner found no residuals of in-service head trauma. Consequently, the evidence still fails to show a nexus between any currently diagnosed neurological disorder and the Veteran's military service, to include due to exposure to herbicide agents or in-service head trauma. Therefore, as the Veteran's claim for service connection for a neurological disorder was previously denied based on a lack of a nexus to service and the newly received evidence likewise fails to address such missing element, the Board finds the evidence added to the record since the final June 2013 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility or substantiating the Veteran's claim for service connection for a neurological disorder. Therefore, as new and material evidence has not been received, his application to reopen such claim must be denied. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.