Citation Nr: 21071385 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-15 391 DATE: November 30, 2021 ORDER The petition to reopen the claim of entitlement to service connection for headaches is granted. Entitlement to service connection for headaches, secondary to service-connected anxiety disorder NOS with features of PTSD, is granted. The appeal for entitlement to service connection for asbestosis is dismissed. The petition to reopen the claim of entitlement to service connection for tinnitus is dismissed. The petition to reopen the claim of entitlement to service connection for squamous cell carcinoma of the right base of the tongue is dismissed. The petition to reopen the claim of entitlement to service connection for traumatic brain injury (TBI) is dismissed. FINDINGS OF FACT 1. A February 2010 rating decision denied service connection for headaches. VA notified the Veteran of this decision and his appellate rights in February 2010. He did not file a notice of disagreement (NOD) or submit new and material evidence within the following year and the decision became final. 2. New and material evidence has been received to reopen the claim for service connection for headaches, to include as secondary to service-connected anxiety disorder NOS with features of PTSD. 3. The evidence is at least in equipoise that the Veteran's headaches are proximately due to his service-connected anxiety disorder NOS with features of PTSD. 4. On September 17, 2021, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal for service connection for asbestosis and the petitions to reopen the claims of service connection for tinnitus, service connection for squamous cell carcinoma of the right base of the tongue, and service connection for TBI. CONCLUSIONS OF LAW 1. The February 2010 rating decision which denied service connection for headaches is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for headaches, to include as secondary to service-connected anxiety disorder NOS with features of PTSD, have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. 3. Resolving any doubt in the Veteran's favor, the criteria for service connection for headaches, secondary to service-connected anxiety disorder NOS with features of PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for withdrawal of the appeal for service connection for asbestosis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the petition to reopen the claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the petition to reopen the claim of entitlement to service connection for squamous cell carcinoma of the right base of the tongue have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the petition to reopen the claim of entitlement to service connection for TBI 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 from March 1967 to January 1969. The Board thanks him for his service to our country. In a September 2021 brief, the Veteran's attorney asserted that the Veteran was entitled to a total rating based on individual unemployability due to service-connected disability (TDIU). This claim for TDIU is not intertwined with or considered a part of the current claim for service connection for headaches and is therefore not before the Board. 1. The petition to reopen the claim of entitlement to service connection for headaches, to include as secondary to service-connected anxiety disorder NOS with features of PTSD, is granted. In the September 2021 brief, the Veteran's attorney made the additional assertion that the Veteran's headaches are secondary to his service-connected anxiety disorder. In this regard, the Board observes that the Veteran is service-connected for anxiety disorder NOS with features of PTSD. The Board further observes that reliance upon a new etiological theory (that the headaches are due to service-connected disability) is insufficient to transform a claim that has been previously denied into a separate and distinct, or new, claim. See Ashford v. Brown, 10 Vet. App. 120 (1997); but see Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (where a prior claim for service connection has been denied, and a current claim contains a different diagnosis (even one producing the same symptoms in the same anatomic system), a new decision on the merits is required. In the present case, the Veteran is still required to present new and material evidence in support of his claim. Generally, a claim that has been finally denied in an unappealed rating decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). However, a claim that has been finally denied may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence is evidence not previously submitted; material evidence is evidence that 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). The Court of Appeals for Veterans Claims (Court) has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi,17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this case, a February 2010 rating decision denied service connection for headaches. It explained that the medical evidence of record failed to show that the disability had been clinically diagnosed. At that time, the record included the Veteran's service treatment records and post-service VA treatment records. VA notified the Veteran of this decision and his appellate rights in February 2010. He did not file an NOD or submit new and material evidence within the following year and the decision became final. Evidence received since the February 2010 rating decision includes September 2017 VA treatment records showing an assessment of worsening headaches consistent with migraines and a pending prescription for medication to treat the Veteran's headaches. One of the treatment records notes that the Veteran's description was very consistent with migraine with aura. An October 2019 VA radiologist note identifies migraine as an active problem. In an August 2021 medical opinion, a private physician states that the Veteran's entire claims file was available for his review. The physician reviews the Veteran's pertinent medical history, and cites and summarizes several medical texts showing the relationship between headaches and psychiatric disorders. The physician states that, given the history, records and research data, he had to find it to be at least as likely as not that the Veteran's headaches are related to his service-connected anxiety disorder NOS with psychotic features and therefore related to his military service. The Board finds that the 2017 and 2019 VA treatment records indicating a headache diagnosis are new and material as the record did not contain a headache diagnosis at the time of the prior final denial. The August 2021 private medical opinion is new and material as it links the Veteran's headaches to a service-connected disability. Accordingly, the claim for service connection for headaches is reopened. 2. Service connection for headaches, secondary to service-connected anxiety disorder NOS with features of PTSD, is granted. The Veteran contends in pertinent part that his headaches are due to his service-connected anxiety disorder NOS with features of PTSD. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. As noted above, VA treatment records reflect that the Veteran has a current diagnosis of headaches. An August 2021 private medical opinion relates that it is at least as likely as not that the Veteran's headaches are related to his service-connected anxiety disorder NOS with psychotic features. The Board finds that the August 2021 private medical opinion is probative evidence in support of the Veteran's claim. It is based on an accurate and extensive review of the Veteran's medical history, and sets forth a clear, well-reasoned conclusion. It provides a detailed explanation that refers to specific findings in the Veteran's medical records and numerous medical articles. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board finds it significant that the record contains no evidence to the contrary of this medical opinion. Accordingly, as the evidence shows that it is at least as likely as not that the Veteran's current headaches are proximately due to his service-connected anxiety disorder NOS with features of PTSD, service connection for headaches is granted. 38 C.F.R. § 3.310. 3. Entitlement to service connection for asbestosis is dismissed. 4. The petition to reopen the claim of entitlement to service connection for tinnitus is dismissed. 5. The petition to reopen the claim of entitlement to service connection for squamous cell carcinoma of the right base of the tongue is dismissed. 6. The petition to reopen the claim of entitlement to service connection for service connection for TBI is dismissed. The Board may dismiss any appeal which 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, in correspondence the Veteran submitted on September 17, 2021, he withdrew his appeal as to the claims for service connection for asbestosis and the petitions to reopen the claims of service connection for tinnitus, service connection for squamous cell carcinoma of the right base of the tongue, and service connection for TBI. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to those issues. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for asbestosis and the petitions to reopen the claims of service connection for tinnitus, service connection for squamous cell carcinoma of the right base of the tongue, and service connection for TBI, and they are dismissed. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.