Citation Nr: 21040090 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-46 775A DATE: July 2, 2021 ORDER The petition to reopen a claim of service connection for migraine headaches is granted. REMANDED Entitlement to service connection for migraine headaches, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, to include as secondary to service-connected disability is remanded. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative changes of the lumbar spine is remanded. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome with osteoarthritis is remanded. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative changes is remanded. Entitlement to an initial disability rating in excess of 20 percent for medial/lateral instability of the left knee is remanded. Entitlement to an initial disability rating in excess of 20 percent for medial/lateral instability of the right knee is remanded. Entitlement to a compensable disability rating for temporomandibular joint dysfunction is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability is remanded. FINDINGS OF FACT 1. In a February 2000 rating decision, of which the Veteran was notified in March 2000, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for headaches. 2. The Veteran did not appeal the decision and additional evidence was not received within the one-year appeal period. 3. Evidence associated with the record since the February 2000 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for headaches. CONCLUSION OF LAW The criteria to reopen the previously denied claim for service connection for headaches are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1991 to July 1991, and from June 1995 to June 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by a VA RO, which is the agency of original jurisdiction. In March 2021, the Veteran testified before the undersigned Veterans Law Judge; a transcript of that proceeding is of record. The petition to reopen a claim of service connection for migraine headaches. The RO denied the Veteran's claim of service connection for headaches in a February 2000 rating decision, finding that there was no link between the currently-diagnosed migraine headaches and the headaches the Veteran reported in service. The Veteran was provided notice of this decision and her appellate rights but did not appeal the decision. Additional evidence was not within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1999). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing 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 evidence received since the February 2000 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a VA examination was provided in September 2012 and the Veteran provided testimony regarding her condition in March 2021. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND While further delay is regrettable, the Board finds remand of the remaining claims on appeal is necessary before a decision may be rendered. The record indicates that the Veteran receives disability compensation from the Social Security Administration (SSA). See, e.g., October 20, 2017, VA Treatment Record. However, the Veteran's SSA records have not been obtained. As such, remand is required so that VA may request all relevant records from the SSA, to include medical records used in deciding any claim for disability benefits. 1. Entitlement to service connection for migraine headaches, to include as secondary to service-connected disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, to include as secondary to service-connected disability. With respect to the Veteran's claims for service connection for migraine headaches and for an acquired psychiatric disorder, the Board finds additional VA opinions should also be obtained on remand. While the Veteran underwent VA examination in connection with her headache claim in September 2012 and with her psychiatric disorder claim in September 2011 and June 2016, the examiners did not provide sufficient rationale for the negative opinions stated. Opinions were provided with respect to secondary service connection, but the examiners did not sufficiently address whether the claimed disabilities have been aggravated by service-connected disabilities. Furthermore, additional evidence, including the Veteran's testimony and medical records, has been added to the file since the opinions were provided which may have bearing on the issue. Accordingly, new VA opinions should be provided which address whether the Veteran's headaches and acquired psychiatric disorder are related to her active duty service or to her service-connected disabilities. 3. Entitlement to a compensable disability rating for temporomandibular joint dysfunction. The Veteran's temporomandibular joint dysfunction was last assessed by a VA examiner in September 2012. As it is likely the Veteran's condition may have changed since that time, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the disability. Updated VA treatment records, as well as any relevant private treatment records identified by the Veteran, should also be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Request all relevant records from the Social Security Administration, to include medical records used in deciding any claim for disability benefits. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Ask the Veteran to identify all outstanding treatment records relevant to her claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current migraine headaches had onset during service or are otherwise related to an in-service injury, event, or disease, to include the headaches reported in service. The examiner should also address whether any current migraine headaches are at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected disability, to specifically include temporomandibular joint dysfunction and a cervical-spine disability, as well as other disabilities, to include as a result of medication taken to treat service-connected disabilities. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder had onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current acquired psychiatric disorder is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected disabilities, to include as a result of pain. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 5. After records development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with her temporomandibular joint dysfunction. The claims file should be reviewed by the examiner. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, 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.