Citation Nr: 21076616 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-54 903 DATE: December 27, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for migraine headaches is granted. REMANDED Service connection for migraine headaches. FINDINGS OF FACT 1. The Veteran served on active duty from February 1991 to February 1994. 2. In an unappealed September 1999 rating decision, the Regional Office (RO) denied service connection for migraine headaches on the basis that the evidence did not establish that the disorder occurred in or was caused by active service. 3. Resolving reasonable doubt in the Veteran's favor, the evidence submitted since the September 1999 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for migraine headaches. CONCLUSIONS OF LAW 1. The September 1999 rating decision, which denied service connection for migraine headaches, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2021). 2. The evidence received since the September 1999 rating decision is new and material with respect to the claim of entitlement to service connection for migraine headaches and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In June 2019, the Board denied the Veteran's application to reopen his claim of service connection for migraine headaches. He appealed to the Veterans Claims Court. The Court Clerk granted a Joint Motion for Partial Remand (JMPR) which vacated the Board's decision and remanded the case for further development consistent with the JMPR. In July 2020, the Board denied the application to reopen and the Veteran again appealed to the Court and in July 2021, the Court Clerk granted another Joint Motion for Remand (JMR) vacating the Board's July 2020 decision and remanded the case for further development consistent with the JMR. The case has now been returned to the Board for action consistent with the order. Additionally, in connection with his appeal, the Veteran testified at a March 2016 hearing before a Decision Review Officer (DRO) and a January 2019 hearing before the undersigned Veterans Law Judge (VLJ). Copies of the transcripts have been associated with the claims file. Turning to the relevant laws and regulations, prior unappealed decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran was initially denied service connection for migraine headaches in October 1997 on the basis that the evidence did not establish that a then-current headache disorder was caused or aggravated by service. He was again denied service connection for the disorder in September 1999 on the basis that he had not submitted any new and material evidence to support reopening the claim. The evidence at the time of the September 1999 denial consisted of post-service medical treatment records. He did not appeal that decision and the September 1999 rating decision became final. The evidence received since the September 1999 rating decision includes service treatment records (STRs), additional post-service medical treatment records, May 2014 and March 2016 VA examinations, and March 2016 and January 2019 lay testimony before a DRO and VLJ, respectively. The Board will address each in turn. Of note, the Veteran has explained that his headaches began within a year of his separation from service in 1994 and asserted that he is entitled to presumptive service connection for migraine headaches under 38 C.F.R. § 3.309(a). Migraine headaches are considered to be a chronic "organic disease of the nervous system" for purposes of presumptive service connection. However, under 38 C.F.R. §§ 3.307 and 3.309, presumptive service connection is only granted for chronic disorders that manifest to a compensable degree within a year of separation from service. Specifically, a compensable rating for migraine headaches is warranted when a veteran has migraine headaches with characteristic prostrating attacks averaging one in 2 months over the previous several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Court has defined prostrating as "lacking in vitality or will [, being] powerless to rise[, or] laid low," and explained that "the phrase "characteristic prostrating attacks" plainly describes migraine attacks that typically produce powerlessness or a lack of vitality." Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). As such, the threshold question is whether the newly-added evidence raises a reasonable possibility of establishing that the Veteran either experienced migraine headaches in service or had characteristic prostrating attacks of migraine headaches within a year of separation from service. As noted above, the evidence received since the September 1999 rating decision includes STRs and additional post-service treatment records, to specifically include a May 2021 treatment note finding that the Veteran's headaches began in 1994 and had continued since that time. However, the STRs did not document complaints, symptoms, diagnoses or treatment for a headache disorder. To this end, no defects were noted in his February 1994 separation examination and he reported that he did not have or had not had frequent or severe headaches in an associated Report of Medical History. Similarly, the post-service treatment records described his continuing headache disorder but did not indicate whether his headaches stemmed directly from service or manifested to a compensable degree within a year of separation from service. As such, this evidence, while new, fails to raise a reasonable possibility of substantiating the claim and is not material. The record also contains May 2014 and March 2016 VA examinations which documented migraine headaches since 1994 and opined that it was less likely than not that the Veteran's migraine headaches were related to an exposure event experienced while serving in Southwest Asia. However, the examiners did not address whether his headache disorder stemmed from or had been continuous since separation from service. Further, the examiners did not opine as to the severity or frequency of any headaches that the Veteran experienced within a year of his separation from service. Accordingly, this evidence, while new, also fails to raise a reasonable possibility of substantiating the claim and is not material. Next, the evidence includes transcripts of the Veteran's testimony before a DRO in March 2016 and a VLJ in January 2019. In the March 2016 testimony, he reported that he started having migraines "a few years after [he] got out back in [1994]." He recalled that his headaches progressed to the point where he "couldn't even function," explaining that he "was sick, throwing up," and could only "lay down most of the time." He said that his wife ultimately took him to the VA Medical Center (VAMC) in Columbus. In January 2019, he testified that he had "severe migraine headaches" after he got out in February 1994. He affirmed that he was seen at the Columbus VAMC, believed that he was seen in 1994, but ultimately did not recall the date of his VAMC appointment. He said that the Columbus clinician told him that there was nothing wrong with him. He further asserted that he did not experience headaches in service, never had them prior to 1994, and, while he periodically hit his head in tanks, did not experience any in-service head trauma. Resolving reasonable doubt in his favor, the Veteran's 2016 and 2019 testimony is new and material within the applicable law and regulations because it is probative of the issue. In this regard, while the Veteran is not competent to assess whether a chronic disorder manifested to a compensable degree, he is competent to testify as to symptomatology and events capable of lay observation. Accordingly, the 2016 and 2019 testimony establish that he experienced headaches that worsened and eventually required him to lay down for extended periods of time, was seen for his headaches at a Columbus VAMC, and may have been examined in 1994. The 2016 and 2019 lay testimony is new as it was not of record prior to the September 1999 rating decision. Moreover, it is material as it relates to the unestablished element of a manifestation of his headache disorder within a year of separation from service. Accordingly, resolving reasonable doubt in his favor, the newly added evidence relates to an unestablished element necessary to substantiate the claim. As such, the application is granted, and the claim is reopened. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In March 2016 and January 2019 testimony before a DRO and VLJ, respectively, the Veteran indicated that he had headaches that worsened to the point that he had to lay in bed for extended periods of time. He said that he believed he was seen in the Columbus VAMC in 1994 but was uncertain of the exact date of the visit. However, the evidence of record does not contain any treatment records from the Columbus VAMC at that time. A review of the record reveals a September 1997 treatment note from a private hospital in Columbus which reported that the Veteran began having headaches in 1996 and that his previous headaches were rare and minor. It is unclear whether this is the hospital visit that the Veteran recollects. As such, a remand is necessary so that the AOJ may attempt to secure the relevant treatment records. The matter is REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records that are not currently of record, to specifically include all records from the Columbus VAMC between February 1994 and March 1995. 2. All attempts to obtain the treatment records from the Columbus VAMC should be fully documented, and a negative response must be provided if the records do not exist or are not available. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.