Citation Nr: A21019882 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 190126-2123 DATE: December 14, 2021 ORDER New and relevant evidence having been submitted, readjudication of the claim of service connection for headaches is warranted. Entitlement to service connection for chronic headaches secondary to acute lymphocytic leukemia (ALL) is granted. REMANDED Entitlement to service connection for dental condition, including secondary to acute lymphocytic leukemia (ALL), is remanded. FINDINGS OF FACT 1. New evidence, including a new headache diagnosis and secondary opinion, were received after the September 2004 denial of service connection for migraine headaches. The evidence is relevant because it tends to prove or to disprove a matter in issue in the Veteran's appeal. 2. The Veteran's chronic headaches are proximately due to his service-connected acute lymphocytic leukemia (ALL). CONCLUSIONS OF LAW 1. The criteria have been met for readjudication of the previously denied claim for service connection for headaches. 38 C.F.R. §§ 3.156, 3.2501. 2. The criteria have been met for entitlement to service connection for chronic headaches. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1997 to August 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In the January 2019 RAMP opt-in: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board must determine whether new and relevant evidence has been received based on the evidence of record at the time of the RAMP decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the scheduled date of the hearing. 38 C.F.R. § 20.302(a). A Board virtual hearing was held on August 9, 2021. The new and material evidence issue regarding headaches has been recharacterized to reflect the applicable evidentiary standard. 38 C.F.R. §§ 3.2501(a)(1), 19.2. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Considering the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim decided herein are moot. New and Relevant Evidence Legal Criteria VA will readjudicate a claim if new and relevant evidence is presented or obtained. 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Relevant evidence means evidence that tends to prove or disprove a matter in issue. 38 U.S.C. § 101 (35). Factual Background In June 2004 the Veteran filed a claim for migraine headaches. In a September 2004 rating decision, the RO denied service connection because migraine headaches pre-existed service and there was no evidence of aggravation. The Veteran did not appeal the did not appeal the September 2004 rating decision and did not submit new and material evidence within one year. The September 2004 rating decision thus became final. The Veteran filed a January 2017 claim to reopen a claim of entitlement to service connection for headaches. The Veteran submitted a December 2017 causation opinion for his chronic headaches. March 2017 and February 2018 rating decisions denied new and material evidence was received and denied service connection. The Veteran filed a March 2018 notice of disagreement (NOD). The Veteran filed a May 2018 RAMP opt-in for higher level review. An August 2018 RAMP rating decision was issued denying new and material evidence was submitted. The Veteran filed a January 2019 Board appeal and selected the hearing lane. Analysis Prior to the September 2004 rating decision, the claims file included the following: 1) service treatment records (STRs) and 2) a June 2004 VA examination. The STRs showed the Veteran was diagnosed with migraine headaches prior to service. The June 2004 VA examination stated the migraine headaches pre-existed service. The evidence received after the September 2004 rating decision included VA treatment records and private treatment records. A June 2010 private treatment record showed the Veteran was newly diagnosed with post lumbar puncture headaches. The Veteran's private provider attributed the headaches to lumbar puncture with intrathecal chemotherapy for the Veteran's ALL. In a December 2017 statement, the Veteran's VA oncologist stated a known long tern side effect of total body irradiation is chronic headaches. Additionally, in December 2017, the Veteran's VA neurologist stated it was conceivable that some or most of the Veteran's recent headache issues were a late effect of the lifesaving leukemia treatment. The diagnosis and opinions are new because they were not previously in the record. The information is relevant because the diagnosis showed something other than migraine headaches diagnosed. Additionally, the opinions of record indicated the current chronic headaches were related to 2010 cancer treatment. Accordingly, the evidence is new and relevant and readjudication is warranted. SERVICE CONNECTION Legal Criteria Establishing secondary service connection requires evidence: (1) of a current disability (for which secondary service connection is sought); (2) of a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Factual Background During the August 2021 hearing, the Veteran explained that his current headaches were different from his migraine headaches prior to service. The Veteran noted he had headaches during chemotherapy and the new type of headaches significantly increased after his total body irradiation treatment. The Veteran stated his migraines had effectively resolved prior to military service. The Veteran's October 1996 entrance examination noted neurological system as normal. In his October 1996 report of medical history, the Veteran noted he was not taking medication and had migraines as a child. The Veteran's STRs included a September 1992 letter from the Veteran's private neurologist. The private provider stated in young school age the Veteran experienced migraines that would resolve with medication. The private provider explained that there was nothing about the Veteran's neurological history that would prevent service. The private provider stated the Veteran was in good health and had not been seen in the neurologist office for several years. A June 2010 private treatment record showed the Veteran was newly diagnosed with post lumbar puncture headaches. The Veteran's VA oncologist and VA neurologist attributed the current chronic headaches to ALL treatment. Analysis First, there is a current diagnosis. In June 2018 the Veteran's VA neurologist diagnosed chronic headache, mixed type. The Board notes the February 2017 VA examination diagnosed migraine headaches from childhood. The Veteran is not alleging direct service connection for migraine headaches. The Veteran is alleging secondary service connection based on his current headache disorder. Notably, the June 2010 private treatment records diagnosed a new headache disorder unrelated to prior history of migraine headaches. Second, the most probative evidence of record supports a finding that chronic headaches are related to treatment for service-connected ALL, for which service-connected was granted effective as of January 2011. The Veteran received a January 2015 VA examination for ALL. The examinations showed chronic headaches were a sign or symptom due to leukemia or treatment for leukemia. A February 2017 VA examiner provided a negative causation opinion for migraine headaches. The examiner did not address aggravation of the chronic headache condition. In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In January 2018, the Veteran submitted December 2017 opinions from his VA oncologist and VA neurologist. The Veteran's VA oncologist explained the Veteran's ALL treatment included allogenic hematopoietic stem cell transplant, chemotherapy, and total body irradiation. The VA oncologist noted the Veteran received directly into the spinal fluid chemotherapy. The oncologist explained that known long term side effects of total body irradiation included accelerated tooth decay, early development of cataracts, skin cancers, and occasionally increased intracranial pressure which presents as chronic headache. The VA oncologist opined, "based on the Veteran's treatment history his current headaches may be associated with his previous therapy for ALL." The Veteran's VA neurologist stated the Veteran has been under his care for complex headache multiple type since February 2016. The VA neurologist stated the headaches occurred against a backdrop of a history of migraines which had ended six years earlier after a bone marrow transplant for ALL. The VA neurologist opined, "it is conceivable that some or most of his recent headache issues are in some way a late effect of damages to the nervous system structures from live-saving treatment of leukemia that he underwent six years ago." The Board finds the December 2017 opinions and January 2015 VA examination highly probative. First, the Veteran's VA treatment providers have treated him for several years. See White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001) (the Board may consider a lengthy treating relationship along with all the other evidence when assigning probative weight). Second, the oncologist and neurologist are experts in their perspective fields. Notably, the February 2017 VA opinion was rendered by a physician's assistant. Oncologists specialize in cancer treatment and neurologist specialize in brain function. Lastly, the opinions are consistent with the Veteran's testimony regarding his migraines and course of treatment. The Board notes the VA neurologist opinion regarding causation is speculative. However, the Veteran's neurologist makes clear the migraine issue was resolved. The Veteran's VA oncologist makes clear headaches are a known long term side effect of the Veteran's leukemia treatment. Additionally, the January 2015 VA examination makes the same finding regarding the Veteran's headaches, expressly finding that the Veteran's chronic headache was a finding, sign, or symptom due to a hematologic or lymphatic disorder, or due to treatment for same. Accordingly, service connection is warranted for chronic headaches. REASONS FOR REMAND Dental Condition Remand is required for a pre-decisional duty to assist error. The Veteran never received a dental VA examination. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In August 2017 the Veteran's VA oncologist stated one of the known long term side effects of total body irradiation is accelerated tooth decay and opined the accelerated tooth decay was related to prior total body irradiation. In July 2017, the Veteran's private dentist diagnosed internal resorption of tooth #14 which also had accelerated tooth decay. The Veteran's dentist opined the diagnoses are most likely related to the total body irradiation. For dental conditions, compensation is only paid for loss of teeth due to loss of substance of the body of maxilla or mandible without loss of continuity (because of trauma or disease such as osteomyelitis), and not the loss of alveolar process because of periodontal disease since such loss is not considered disabling. See Note, 38 C.F.R. § 4.150, Diagnostic Code 9913. It is clear the Veteran has lost a tooth, but it is unclear if the leukemia treatment caused loss of substance of the body of maxilla or mandible. Accordingly, remand is required for a VA examination and opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician for his dental condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: Does the Veteran have loss of substance of the body of maxilla or mandible? Is the dental condition at least as likely as not proximately due to treatment for acute lymphocytic leukemia? Is the dental condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by treatment for acute lymphocytic leukemia? David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.