Citation Nr: 21024692 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-60 905 DATE: April 23, 2021 ORDER 1. New and material evidence has been received and the claim of entitlement to service connection for headaches is reopened. 2. Entitlement to service connection for headaches claimed as secondary to service-connected neck and shoulder disabilities is granted. FINDING OF FACT 1. A May 2012 rating decision denied entitlement to service connection for migraines. The Veteran was notified of the denial and filed a timely Notice of Disagreement (NOD) in September 2012. A Statement of the Case (SOC) was issued in December 2013 but the Veteran did not perfect the appeal. 2. Evidence received since the May 2012 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for headaches. 3. The Veteran’s headaches are secondary to his service-connected neck and shoulder disabilities. CONCLUSION OF LAW 1. The May 2012 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for headaches. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156, 20.1103 2. The criteria for service connection for headaches have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to December 1989. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans’ Affairs (VA) regional office (RO). The Veteran timely appealed. In February 2021 the Veteran was given a hearing before the undersigned Veteran’s Law Judge. The Veteran originally claimed entitlement to service connection for migraines. The United States Court of Appeals for Veterans Claims has held that “a claimant's identification of the benefit sought does not require any technical precision.” Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). In light of the Veteran’s headache diagnosis of record, the Board has recharacterized the issue as reflected on the title page. New and material evidence having been received, the claim of entitlement to service connection for headaches is reopened A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §7105; 38 C.F.R. §20.1103. 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 is evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App.510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App.273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App.110, 117 (2010). A May 2012 rating decision denied entitlement to service connection for migraines. The Veteran and filed a timely NOD in September 2012. An SOC was issued in December 2013 but the Veteran did not perfect the appeal. The denial therefore became final. Evidence received since the May 2012 rating decision includes hearing testimony, private medical opinion evidence, and a June 2018 VA examination report. These are new, as they were not before the agency of original jurisdiction in May 2012. This evidence relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for headaches. Specifically, the evidence pertains to nexus and current disability elements. The Board thus reopens the Veteran’s claim of entitlement to service connection for headaches for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Entitlement to service connection for headaches claimed as secondary to service-connected neck and shoulder disability Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran contends his headaches are secondary to his service-connected neck and shoulder disabilities. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities and the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). The record must also contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Here, the evidence of record demonstrates the Veteran has a current headache disability. See June 14, 2018 VA Examination for Headaches. Thus, the first element of secondary service connection has been met. Next, the record shows the Veteran is been service-connected for a neck and shoulder disability. Thus, the second element of secondary service connection has been met. Finally, the Board must address whether there is a relationship between the service-connected neck and shoulder disabilities and the headaches. The Veteran submitted evidence of a nexus from his private chiropractor of over twenty years. The Veteran’s chiropractor thoroughly explains how his service-connected neck and shoulder disabilities are causing headaches. He specifically describes the effect his neck and shoulder conditions cause pain for the Veteran and are the cause of his headaches. The Board finds the report of the chiropractor probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no indication the chiropractor was not fully aware of the Veteran’s past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Therefore, the Board finds the chiropractor’s opinion to be of great probative value Moreover, the June 2018 VA examiner found “headaches secondary to chronic cervical problems.” All nexus evidence is in favor of the claim. As such, the third element of nexus has been met. The Board grants the Veteran’s claim of entitlement to service connection for headaches. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Brewer, Associate Attorney 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.