Citation Nr: 21009910 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-30 674 DATE: February 23, 2021 ORDER New and material evidence has been received and the claim of entitlement to service connection for migraine headaches is reopened. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for migraine headaches, to include as secondary to service-connected disabilities is remanded. FINDINGS OF FACT 1. An unappealed August 2007 rating decision denied service connection for migraine headaches. 2. Evidence received since the August 2007 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims of service connection for migraine headaches. CONCLUSIONS OF LAW 1. The August 2007 rating decision that denied service connection for migraine headaches is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received and the claim of entitlement to service connection for migraine headaches is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to July 1990 and from June 1993 to December 2001. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were before the Board in April 2019 where they were denied. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) and, after a Joint Motion for Remand (JMR) filed by both parties, the Court vacated and remanded the issues back to the Board in January 2020. The Board remanded the claims in April 2020 for further development consistent with the JMR. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for migraine headaches. Generally, a claim which has been denied in an unappealed Board decision or an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 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 evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with the 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 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 determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of what is new and material evidence rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence raises a reasonable possibility of substantiating the claim if, when considered with the evidence already in the record, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim of entitlement to service connection for migraine headaches was denied initially in an unappealed October 2007 rating decision. In an October 2015, the RO issued a rating decision that reopened the Veteran’s claim for service connection for migraine headaches but denied the underlying service connection claim on the merits. The decision was based on a finding that there was no evidence of a nexus between the Veteran’s migraine headaches and her active duty service. The Veteran did not appeal the October 2007 rating decision or submit new and material evidence within one year of that decision; therefore, it is final. Since the October 2007 rating decision, evidentiary submissions have included the Veteran’s written lay statements, private treatment records, VA examinations dated October 2015 and July 2020. Additional VA treatment records not previously considered have also been received. Having reviewed the evidentiary submissions, the Board finds that new and material evidence has been received to reopen the claims of service connection for migraine headaches. The evidence received contains medical treatment notes and lay statements relevant to the etiology of the Veteran’s disability on a secondary theory of entitlement which are new and not previously been considered. This evidence is also material because it relates to an unestablished fact that is necessary to substantiate the claim. Specifically, it may establish a possible nexus between the Veteran’s claimed disability and her active duty service, which was the basis of the prior final denial. Accordingly, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim for entitlement to service connection for migraine headaches. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities is remanded. 2. Entitlement to service connection for migraine headaches, to include as secondary to service-connected disabilities is remanded. The Veteran seeks service connection for obstructive sleep apnea and migraine headaches. She contends that these conditions are caused or aggravated by her service-connected disabilities. The Veteran also contends that her obesity is aggravated or worsened by her service – connected disabilities and is a substantial factor in causing both her obstructive sleep apnea and migraine headaches. The Board remanded these issues in April 2020 in order to obtain an adequate medical opinion addressing whether the Veteran’s obesity was caused or aggravated by a service-connected disability and if so the extent to which it is a substantial etiological factor of her obstructive sleep apnea and migraine headaches. A July 2020 VA examiner opined that it was less likely than not that the Veteran’s obstructive sleep apnea or migraine headaches were caused or aggravated by a service – connected disability. The rationale was the actual cause cannot be selected from multiple potential causes without resort to speculation. The Board finds that this examination is inadequate for rating purposes. Specifically, the examiner did not properly address questions regarding the aggravation prong of secondary service connection. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Nor did the examiner opine as to whether the Veteran’s service – connected caused or aggravated her obesity or substantially contributed to causing her obstructive sleep apnea or her migraine headaches. Walsh v. Wilkie, 32 Vet. App. 300 (2020); GC Op 1-2017. Lastly, the examiner failed to review and address the Veteran’s written lay statements which describe in great detail why she believes that her obesity is a substantial factor in causing her disabilities. Accordingly, the Board finds that there has not been substantial compliance with the April 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board acknowledges that the issue is both factually and medically complex. Accordingly, another remand to obtain new medical opinions from a medical specialist is required to ensure such compliance. The matters are REMANDED for the following action: Obtain a medical opinion from a physician. An in-person examination should be scheduled if and only if mandated by the examiner. The examiner is asked to offer an opinion to the following questions: (a) whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current sleep apnea onset during service or is otherwise related to an in-service injury, event, or disease. (b) whether the Veteran’s current sleep apnea is at least as likely as not (i) directly caused, or (ii) aggravated (i.e., worsened beyond natural progression) by a service connected disability to specifically include her service-connected asthma. (c) whether it is at least as likely as not that (i) service-connected disability caused or aggravated the Veteran’s obesity; (ii) if so, whether the obesity or the aggravation of obesity as a result of service-connected disability was a substantial factor in causing sleep apnea; and (iii) whether the sleep apnea would not have occurred but for the obesity caused by service-connected disability or the obesity aggravated by service-connected disability. The Board appreciates the examiner’s patience in addressing this multistep question. (d) whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current migraine headaches onset during service or are otherwise related to an in-service injury, event, or disease. (e) whether the Veteran’s current sleep apnea is at least as likely as not (i) directly caused, or (ii) aggravated (i.e., worsened beyond natural progression) by a service connected disability to specifically include her service-connected asthma. (f) whether it is at least as likely as not that (i) service-connected disability caused or aggravated the Veteran’s obesity; (ii) if so, whether the obesity or the aggravation of obesity as a result of service-connected disability was a substantial factor in causing migraine headaches; and (iii) whether the migraine headaches would not have occurred but for the obesity caused by service-connected disability or the obesity aggravated by service-connected disability. The Board appreciates the examiner’s patience in addressing this multistep question. The examiner is asked to cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.