Citation Nr: 21026664 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-22 282 DATE: May 3, 2021 ORDER The application to reopen the claim for panic disorder is denied. The application to reopen the claim for uterine fibroids is denied. The application to reopen the claim for gastroesophageal reflux disease (GERD) is denied. The application to reopen the claim for service connection for headaches is granted. REMANDED Entitlement to service connection for headaches to include as secondary to service-connected disease or injury is remanded. FINDINGS OF FACT 1. In an unappealed November 2011 rating decision, the RO denied service connection for panic disorder (claimed and adjudicated as posttraumatic stress disorder (PTSD). 2. Evidence submitted since the November 2011 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the panic disorder claim. 3. In an unappealed November 2011 rating decision, the RO denied service connection for GERD. 4. Evidence submitted since the November 2011 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the GERD claim. 5. In an unappealed November 2011 rating decision, the RO denied service connection for uterine fibroids. 6. Evidence submitted since the November 2011 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the uterine fibroids claim. 7. In an unappealed November 2011 rating decision, the RO denied the Veteran's claim of entitlement to service connection for headaches. 8. The evidence received since the November 2011 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for headaches. CONCLUSIONS OF LAW 1. The November 2011 rating decision denying service connection for panic disorder (claimed and adjudicated as PTSD) is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 2. Since the November 2011 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for panic disorder is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The November 2011 rating decision denying service connection for GERD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 4. Since the November 2011 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for GERD is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 5. The November 2011 rating decision denying service connection for uterine fibroids is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 6. Since the November 2011 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for uterine fibroids is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 7. The November 2011 rating denying service connection for headaches is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 8. Since the November 2011 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for headaches; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to March 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As discussed below, the Veteran's panic disorder, GERD, uterine fibroids, and headaches claims were previously denied by the RO in a November 2011 rating decision, and that decision is final. Subsequent to the November 2011 rating decision, outstanding service department records were associated with the Veteran's claims folder, specifically service personnel records during the Veteran's period of active service. Under 38 C.F.R. § 3.156(c)(1) (2020), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim ... Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury or disease ... (ii) Additional service records forwarded by the Department of Defense or the service department of VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim." The Board finds that although the newly associated service personnel records were associated with the Veteran's claims folder after VA's original request for the records, these records are not relevant for the purposes of reconsidering the Veteran's panic disorder, GERD, uterine fibroids, or headaches claims. Pertinently, these records do not indicate that the Veteran had panic disorder, GERD, uterine fibroids, or headaches that manifested during service, which as discussed below, was the basis for the previous denial. Indeed, the newly associated records do not address the Veteran's claimed panic disorder, GERD, uterine fibroids, or headaches. Therefore, these service personnel records are not relevant to these issues before the Board. Accordingly, the Board will not reconsider the Veteran's panic disorder, GERD, uterine fibroids, and headaches claims pursuant to 38 C.F.R. § 3.156(c). While the Agency of Original Jurisdiction (AOJ) reopened and denied the Veteran's GERD and uterine fibroids claims on the merits, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the Board must initially determine on its own whether there is new and material evidence to reopen the claims before proceeding to the merits of the claims. New and Material Evidence Pertinent legal criteria In general, rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2020). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. "New" evidence means evidence not previously submitted to the agency decision-maker. "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 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. See 38 C.F.R. § 3.156(a) (2020). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). Claims to reopen panic disorder, GERD, and uterine fibroids In a November 2011 rating decision, the RO denied service connection for panic disorder (adjudicated as service connection for PTSD but included consideration of the Veteran's diagnosed panic disorder), GERD, and uterine fibroids on the basis that there was no evidence of a relationship between the Veteran's psychiatric disorder, GERD, and uterine fibrosis and service. The Veteran did not appeal the rating decision and new and material evidence was not associated within one year of the rating decision. The decision therefore became final. At the time of the prior final rating decision in November 2011, the record included the Veteran's statements regarding the etiology of her panic disorder, GERD, and uterine fibroids as well as her service treatment records and postservice treatment records. The Veteran's service treatment records included an October 1991 report of medical history in which the Veteran reported indigestion, frequent/painful urination, and vaginitis. Postservice treatment records document treatment for GERD, panic disorder, and uterine fibroids. In June 2012, the Veteran applied to reopen her claims of entitlement to service connection for panic disorder (claimed as PTSD), GERD, and uterine fibroids. In order to reopen the previously denied claims, the evidence submitted since the last final denial (November 2011) must be new and material. After a thorough review of the entire record the Board concludes that new and material evidence sufficient to reopen the claims of entitlement to service connection for panic disorder, GERD, and uterine fibroids has not been submitted. In the present case, an unestablished fact is whether the Veteran currently has a panic disorder, GERD, and uterine fibroids related to service. The added evidence does not document any such relationship. Therefore, the added evidence does not establish or suggest that a relationship exists between the Veteran's panic disorder, GERD, or uterine fibroids and service. Furthermore, with regard to recent statements from the Veteran to the extent that she has a panic disorder, GERD, and uterine fibroids that are related to service, such evidence is cumulative and redundant of similar statements made prior to the November 2011 rating decision. Accordingly, such statements are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). The Board notes that the Veteran was provided VA examinations for her GERD and acquired psychiatric disorder in September 2013. After examination of the Veteran, the VA examiner concluded that it is not at least as likely as not that the Veteran has GERD or panic disorder that is related to service. As such, the September 2013 VA examination report merely confirms that there is no nexus to service, as such it is cumulative. In this regard, evidence that is unfavorable to the appellant's case and which supports the previous denial cannot trigger a reopening of the claim. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992). In short, there is no competent evidence that the Veteran has a panic disorder, GERD, and uterine fibroids that are related to service. Moreover, the requirement which was missing at the time of the November 2011 denials of service connection remains lacking. New and material evidence has not been received, and the Veteran's claims of entitlement to service connection for panic disorder (adjudicated as PTSD but included panic disorder), GERD, and uterine fibroids may not be reopened. The benefits sought on appeal remain denied. Headaches The RO denied service connection for headaches in an unappealed November 2011 rating decision because the evidence did not show that the Veteran had headaches related to service. That decision is final. At the time of the prior final rating decision in November 2011, the record included the Veteran's statements regarding her headache symptoms. The service treatment records are absent complaints of or treatment for headaches other than the October service examination prior to separation. In June 2014, the Veteran filed a claim to reopen her previously denied claim. In the December 2014 rating decision, the RO reopened the previously denied claim but denied the service connection claim on the merits as the evidence did not show that the Veteran's PTSD was incurred in or aggravated by service. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. Therefore, in order to reopen the claim, the evidence must show that the Veteran has headaches that are related to service. In reviewing the evidence added to the claims folder since the November 2011 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claim, specifically evidence indicating that the Veteran has had headaches due to noise exposure in service which caused tinnitus. See the Veteran's August 2019 claim for VA benefits. The Board finds that, assuming its credibility, the newly submitted evidence is material. In particular, there is evidence that the Veteran has headaches that are related to service. This evidence is material to establishing service connection. As this previously missing evidence of service connection is now of record, the Board finds that the evidence is new and material sufficient to reopen the claim. REASONS FOR REMAND Service connection for headaches With respect to the Veteran's claim of service connection for headaches, the Veteran contends that she has headaches that are related to service or are alternatively secondary to her service-connected tinnitus. See the Veteran's August 2019 claim for VA benefits. As noted above, the Veteran reported headaches on her October 1991 report of medical history prior to separation from service. She is also currently treated for headaches. Also, there is no medical opinion of record as to whether the Veteran's headaches are caused or aggravated by the service-connected tinnitus. As the Veteran is currently treated for headaches, the Board finds that a medical opinion should be obtained on remand as to whether the Veteran's headaches were incurred in or aggravated by service or alternatively caused or aggravated by the Veteran's service-connected tinnitus. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of her headaches. Based on the review and the examination, the examiner should render an opinion as to the following: a. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has headaches that were incurred in or aggravated by active service. In rendering the requested opinion, the examiner should address the Veteran's report of headaches on her October 1991 report of medical history. The examiner should identify if there is a disease or injury to account for the headaches, if such disease or injury exists. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has headaches that are caused or aggravated by her service-connected tinnitus. If the examiner finds that the headaches are aggravated by the tinnitus, then he/she should quantify the degree of aggravation, if possible. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.