Citation Nr: 21071364 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-45 089 DATE: November 30, 2021 ORDER New and material evidence has been received with respect to the claim of service connection for headaches, and thus, the application is granted. Service connection for headaches is granted. The claim to reopen the issue entitlement to service connection for a bilateral hearing loss disability is dismissed. The claim of entitlement to Special Monthly Compensation (SMC) by reason of being housebound or in need of regular aid and attendance is dismissed. FINDINGS OF FACT 1. A December 2008 rating decision denied service connection for headaches; the Veteran was notified of the decision and of his appellate rights, but he did not appeal. 2. The additional evidence since the December 2008 rating decision is not redundant or cumulative evidence previously considered and it relates to unestablished facts necessary to substantiate the claims for service connection for headaches. 3. The Veteran's current headaches had their onset in service. 4. On September 28, 2021, prior to the promulgation of a decision in the appeal, the Veteran, with the advice of his attorney, verbally withdrew his appeal for claims to reopen the issue entitlement to service connection for a bilateral hearing loss disability and entitlement to SMC by reason of being housebound or in need of regular aid and attendance before the undersigned. CONCLUSIONS OF LAW 1. The December 2008 rating decision, which denied the Veteran's claim of service connection for headaches is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been presented to reopen the claim of service connection for headaches. 38 U.S.C. § 5108; 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 withdrawal of claim to reopen the issue of entitlement to service connection for a bilateral hearing loss disability by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of entitlement to SMC by reason of being housebound or in need of regular aid and attendance by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1989 to April 1992, to include service in the Persian Gulf from October 1990 to March 1991. In September 2021, the Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge. Service Connection 1. New and material evidence has been received with respect to the claim of service connection for headaches, and thus, the application is granted. The Veteran previously submitted a claim of entitlement to service connection for headaches, which was denied by a December 2008 rating decision on the basis that the evidence did not show that the Veteran's headaches were incurred in or caused by his active military service. Because the decision was not appealed, and because new and material evidence was not received within a year of the decision, the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. At the September 2021 Board hearing, the Veteran testified that his current headaches began during service, after he returned from the Persian Gulf Theater of Operations, and have been ongoing and continuous since he separated from service. He further testified that he did not have recurrent headaches prior to service, and that since separation from service, VA has prescribed him headache medication. The Board finds that the Veteran's testimony constitutes new and material evidence sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992 2. Service connection for headaches is granted. As noted above, the Veteran reports that he experiences recurrent headaches, which began in service. Specifically, he asserts that his current headaches began after he returned from the Persian Gulf Theater of Operations, and have been ongoing and continuous since he separated from service. See, e.g., Board hearing (September 2021). The Board concludes that the Veteran has a current disability that began during active service. 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 (a). Initially, the Board finds that the Veteran is competent to self-diagnose recurrent headaches. As there is no reason to question the credibility of the Veteran's report of headaches, his testimony sufficiently establishes a current diagnosis of headaches. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994). During the September 2021 Board hearing, the Veteran's attorney present service treatment records, showing that in February 1992, he complained of headaches shortly after returning from the Persian Gulf Theater of Operations in March 1991. This evidence establishes an in-service injury and lends further support to the credibility of the Veteran's assertion that he has experienced recurrent headaches since he returned from the Persian Gulf. Because the evidence shows that the Veteran's headaches had their onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); 38 C.F.R. § 3.303 (a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). The Board notes that while the Veteran has not undergone VA examination to ascertain the etiology of his current headaches, such is not necessary as the evidence of record sufficiently establishes the criteria for entitlement to service connection for a headache disability. 3. The claim to reopen the issue entitlement to service connection for a bilateral hearing loss disability is dismissed. 4. The claim of entitlement to SMC by reason of being housebound or in need of regular aid and attendance is dismissed. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. Here, the Veteran, with the advice of his attorney, verbally withdrew his appeal for claim to reopen the issue entitlement to service connection for a bilateral hearing loss disability and entitlement to SMC by reason of being housebound or in need of regular aid and attendance before the undersigned. Hence, there remain no allegations of errors of fact or law for appellate consideration. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.