Citation Nr: 21014005 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-27 965 DATE: March 11, 2021 ORDER As new and material evidence has been submitted sufficient to reopen the claim for service connection for migraines, the application to reopen the claim is granted. REMANDED Entitlement to service connection for migraines is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. An unappealed November 2005 rating decision denied service connection for migraines. 2. Evidence received since the November 2005 decision relates to an unestablished fact necessary to substantiate the Veteran's claim for entitlement to service connection for migraines. CONCLUSIONS OF LAW 1. The November 2005 rating decision that denied service connection for migraines is final. 38U.S.C. §7105(c); 38C.F.R. § 20.1103. 2. Evidence received since the November 2005 rating decision is new and material and serves to reopen the Veteran's claim of entitlement to service connection for migraines. 38 U.S.C. § 5108; 38C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to August 1984 and from January 2003 to March 2004. In a decision issued in October 2019, the Board declined to reopen the claim for entitlement to service connection for migraines and denied service connection for GERD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued an Order that vacated the Board’s October 2019 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in an October 2020 Joint Motion for Remand (JMR) by the parties. 1. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for migraines. Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board of Veterans' Appeals (Board) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with 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 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 Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a November 2005 rating decision, the RO denied service connection for migraine headaches on the basis that the evidence showed that migraine headaches existed prior to service, but there was no evidence that this disorder was permanently worsened as a result of active duty service. The Veteran did not appeal that denial or submit new and material evidence within one year of that decision. Therefore, it became final. 38U.S.C. §7105; 38C.F.R. §§3.156(a), (b). In March 2015, the Veteran submitted her current claim for service connection for migraine headaches. Such claim has been construed as a request to reopen the previously denied claims for migraines. The evidence received since the November 2005 rating decision includes the Veteran’s lay statements, a private doctor statement, and VA treatment records that suggest that her migraine headaches may have increased in severity during her deployment. See October 2015 Correspondence, June 2016 Private Doctor Statement, and November 2016 VA Treatment records. This evidence relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for migraines. As such, the Veteran’s claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for migraines is remanded. The Veteran has a current diagnosis for migraine headaches. The Veteran and her private doctor have suggested that, while her migraine headaches preexisted her active duty service, this disability increased in severity while she was on deployment. See October 2015 Correspondence, June 2016 Private Doctor Statement, and November 2016 VA Treatment records. To date, the Veteran has not been afforded a VA examination to determine whether her preexisting migraine headache disability was aggravated by service. Therefore, a remand for a VA examination is necessary prior to adjudication of this matter. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for GERD is remanded. In the October 2020 JMR, the parties agreed that the September 2015 VA medical opinion was inadequate for rating purposes. The Court specifically noted that the VA examiner concluded the Veteran’s GERD was less likely than not related to service and the sole basis was the absence of an in-service diagnosis, without explanation to the significance, if any, of the Veteran’s in-service episodes of constipation and post-service intermittent reflux symptoms. As such, another VA medical opinion is required consistent with the directives herein. The matters are REMANDED for the following actions: 1. Obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran’s migraine headaches. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. Based on a review of the evidence of record, the examiner should respond to the following: The examiner must state whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting migraine headache disorder was not aggravated beyond the natural progression of the condition during the Veteran’s active duty service. Note that the term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In rendering the above opinion, the VA examiner must specifically consider and discuss: i) the significance of the service treatment records, to include the May 2004 service separation examination, that note migraine headaches and migraines with aura; ii) the June 2016 private doctor statement that indicates that, since returning from Iraq, the frequency and intensity of the Veteran’s headaches has greatly increased; iii) the Veteran’s October 2015 statement that, during deployment, her headaches increased to approximately 5 or 6 per month; and iv) the November 2017 VA treatment records noting the Veteran’s reports that after going to Iraq her headaches occurred about 26 out of 30 days per month and she began having auras. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the examiner determines that physical examination of the Veteran is necessary in order to provide the requested opinion, such should be scheduled. 2. Obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran’s GERD. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. Based on a review of the evidence of record, the examiner should respond to the following: The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's GERD had its onset in or was otherwise related to active duty service. In rendering the above opinion, the VA examiner must specifically consider and discuss: i) the February 2004 post-deployment health assessment indicating diarrhea and frequent indigestion, ii) the August 2004 Med Plus Health Care treatment note indicating that the Veteran had continued diarrhea and was positive for GERD, iii) the January 2005 VA treatment record showing symptoms of chronic diarrhea and feeling of food stuck in her throat, and iv) the October 2015 statement by the Veteran indicating that she had gastrointestinal problems during deployment and has used prescription medication for digestive issues since. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the examiner determines that physical examination of the Veteran is necessary in order to provide the requested opinion, such should be scheduled. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.