Citation Nr: 22010537 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 19-27 949 DATE: February 24, 2022 ORDER New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for valvular heart disease (claimed as congenital heart murmur) is granted. New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for migraines is granted. Entitlement to service connection for degenerative arthritis of the cervical spine (claimed as neck, stiffness, limited range of motion, severe chronic pain, degenerative condition, migraines, arthritis) is granted. Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for valvular heart disease is remanded. FINDINGS OF FACT 1. An unappealed November 4, 2014 rating decision denied entitlement to service connection for a heart condition. 2. Evidence added to the record since the November 4, 2014 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for valvular heart disease. 3. An unappealed November 20, 2014 rating decision denied entitlement to service connection for migraines. 4. Evidence added to the record since the November 20, 2014 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for migraines. 5. The Veteran has been diagnosed with degenerative arthritis of the cervical spine. 6. Symptoms relating to the Veteran's cervical spine, such as chronic neck pain and stiffness, have been continuous since his separation from service. 7. The Veteran's migraine headaches began during active service. CONCLUSIONS OF LAW 1. The November 4, 2014 rating decision that denied entitlement to service connection for a heart condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The previously denied claim for entitlement to service connection for a valvular heart disease is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The November 20, 2014 rating decision that denied entitlement to service connection for migraines is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The previously denied claim for entitlement to service connection for migraines is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for entitlement to service connection for degenerative arthritis of the cervical spine are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1991 to March 2000. These matters come to the Board of Veterans' Appeals (the Board) on appeal from two separate rating decisions. In September 2017, the Agency of Original Jurisdiction (AOJ) issued a rating decision in which it continued its denial of the Veteran's claims for entitlement to service connection for congenital heart murmur and migraines, which were previously denied in two November 2014 rating decisions. Subsequently, the AOJ also denied entitlement to service connection for a neck condition in a December 2017 rating decision. The Veteran participated in a hearing before the undersigned Veterans Law Judge in September 2020. A transcript of this hearing is of record. I. Petition to Reopen Irrespective of the AOJ's actions, it is the Board's responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). Generally, an unappealed rating decision is final with the exception that a claim may be reopened by the submission of new and material evidence. When a veteran seeks to reopen a claim based on new and material evidence, the Department of Veterans Affairs (VA) must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must then evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In determining whether the evidence presented since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993). "New" evidence refers to evidence that was not previously submitted to VA decisionmakers. Evidence is "material" if it, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). In order to reopen a claim, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a November 4, 2014 rating decision, the AOJ denied entitlement to service connection for a heart condition, determining that there was no evidence of a current disability. Similarly, the AOJ denied entitlement to service connection for migraines in a November 20, 2014 decision, again finding that the evidence did not show a current disability. Such was based, in part, on the Veteran's failure to report for a scheduled VA examination. The Veteran did not file an appeal as to either the issue of entitlement to service connection for a heart condition or the issue of entitlement to service connection for migraines. There was also no new, relevant evidence received within one year of the November 4, 2014 and November 20, 2014 rating decisions. The Veteran does not argue the contrary. Accordingly, both the November 4, 2014 and the November 20, 2014 rating decisions became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the November 2014 rating decisions, VA has received the following evidence: (1) various VA treatment records, (2) VA examinations and medical opinions rendered in September 2017 and October 2018, (3) February 2020, September 2020, January 2021, and March 2021 lay statements from the Veteran, (4) a September 2020 lay statement from A.R.S., (5) a September 2020 statement from F.P., and (6) the Veteran's September 2020 hearing testimony. This evidence is new, as it was not previously before VA at the time of the AOJ's November 2014 decisions. This evidence is also material. The VA examinations and treatment records show current diagnoses of a heart condition and migraine headaches. In the lay statements and hearing testimony, the Veteran contends (1) that his current heart condition is related to the lack of treatment for his in-service hypertension and (2) that his migraines are related to a neck injury he suffered following a parachute jump. As such, this evidence raises a reasonable possibility of substantiating the Veteran's claims for entitlement to service connection for a heart condition and migraines. Accordingly, the previously denied claims for entitlement to service connection for valvular heart disease (claimed as a heart condition and heart murmur) and entitlement to service connection for migraines are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). II. Service Connection Service connection may be granted for disabilities resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Entitlement to service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for an injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology is the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1336. 1. Entitlement to Service Connection for Degenerative Arthritis of the Cervical Spine (Claimed as Neck, Stiffness, Limited Range of Motion, Severe Chronic Pain, Degenerative Conditions, Migraines, Arthritis) The Veteran contends that his degenerative arthritis of the cervical spine was caused by a neck injury he sustained following a parachute jump in October 1991 during his military service. He further asserts that he has had continuous neck pain, both during and since his active service, following this injury. The Veteran has a current diagnosis of degenerative arthritis of the cervical spine, as demonstrated by his October 2018 VA examination. Thus, the first element of service connection is met. Shedden, 381 F.3d at 1166-67. As arthritis is an enumerated condition under 38 C.F.R. § 3.309(a), service connection via the demonstration of continuity of symptomatology is applicable. Walker, 708 F.3d at 1336. Service treatment records show that the Veteran injured his neck in October 1991 during airborne school. He is shown to have received treatment treated for neck pain and stiffness numerous times throughout the remainder of his military service. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same neck pain and stiffness from his discharge in March 2000 to the present. The Veteran is competent to report that he experienced neck pain and stiffness during and since service but did not seek further medical treatment, instead trying to deal with the pain on his own. His lay statements and hearing testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, including his VA treatment records. The record also contains lay statements from the Veteran's mother, F.P., who stated that she noticed that he was in constant pain since his separation from service. Likewise, A.R.S., the Veteran's wife, wrote that it was evident that the Veteran had disfigurement of the cervical spine when they first met in 2009. The Board further notes that the Veteran's wife has medical training as a nurse and that she opined that the etiology of the Veteran's cervical spine condition is his in-service neck injury resulting from the October 1991 parachute jump. A June 2018 private medical opinion and October 2018 VA medical opinion associated the Veteran's cervical spine pain with his current degenerative arthritis of the cervical spine. Such thereby establishes a continuity of symptomatology. Entitlement to service connection for degenerative arthritis of the cervical spine is therefore granted. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker, 708 F.3d at 1338. 2. Entitlement to Service Connection for Migraines The Veteran claims that his current migraines are due to the injuries he sustained following the aforementioned October 1991 parachute jump. He adds that he has experienced headaches consistently since his separation from service. An October 2018 VA examination diagnosed the Veteran as having migraine headaches. The first element of service connectiona current diagnosishas been met. Shedden, 381 F.3d at 1166-67. As for the second Shedden element, the Veteran's service treatment records demonstrate that he sought treatment for headaches multiple times during his active service. The Veteran's November 1999 separation examination even notes a history of migraines during service. Thus, as the evidence shows in-service complaints of headaches and migraines, the second element of service connectionan in-service eventhas been met as well. Shedden, 381 F.3d at 1166-67; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The question for the Board therefore becomes whether the Veteran's current migraines are etiologically related to his active service. On this matter, there is probative evidence in favor of and against the claim. The evidence in favor of the claim includes a June 2018 private medical opinion, as well as lay statements and the Veteran's September 2020 hearing testimony. While the examiner who proffered the private medical opinion did not specifically opine on the etiology of the Veteran's migraines, she noted that "it is evident his symptoms have not resolved" since his October 1991 injury and that he has continued to suffer from headaches since his initial diagnosis in 1992. This conclusion is supported by the Veteran's lay statements and hearing testimony. The Veteran testified that he has experienced migraines continuously during and since service, but that he did not seek treatment for this condition, instead treating his pain with over-the-counter medications and home remedies. The Veteran is not able to opine on the etiology of his current migraines. However, he is competent to establish the onset and presence of observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 303 (2007). The Veteran's statements about the onset of his migraines are also credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. The Veteran's mother wrote that he has experienced constant pain from headaches and migraines since he left the military, and his wife similarly stated that he has suffered from migraines since she has known him. Again, the Board notes that the Veteran's wife has medical training as a nurse and that it is her opinion that his migraines are etiologically related to the injuries stemming from his October 1991 parachute jump. Moreover, in June 2018, the Veteran reported to his primary care provider that his headaches began in the military after injuring his right shoulder and back in a parachute jump and that they worsened over the preceding five years. Such lends further credence to his claim. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (finding statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy). The record includes a negative October 2018 VA medical opinion. That opinion is flawed because the examiner failed to consider the Veteran's statements indicating that he has experienced migraines since his separation from service. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Such reduces its overall probative value. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current migraines arose in service. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for migraines is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to Service Connection for Valvular Heart Disease The Veteran seeks service connection for valvular heart disease. While he acknowledges that his heart condition is congenital, he contends that it was aggravated by his untreated hypertension during his active service. The Veteran underwent a VA examination to determine the nature and etiology of his current heart condition in September 2017. However, for the reasons to follow, the Board concludes that the Veteran's claim for entitlement to service connection for valvular heart disease must be remanded for an addendum medical opinion. When VA provides an examination, it must ensure that the examination is adequate. Barr, 21 Vet. App. at 311. To be adequate, a medical examination report must contain clear conclusions, supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examination should be based upon consideration of the Veteran's prior medical history and describe the disability and symptoms in sufficient detail to allow the Board to make a fully informed decision. Stefl, 21 Vet. App. at 123. As a preliminary matter, and relevant to this appeal, VA's General Counsel has indicated that there is a mutually exclusive distinction between a congenital or developmental "disease" and a congenital or developmental "defect" for the purposes of service connection. Service connection may be granted for a congenital disease where the disease first manifested during service or where it preexisted service but was worsened beyond its normal progression as a result of service. See VAOPGCPREC 82-90 (1990); VAOPGPREC 67-90 (1990). However, while congenital or developmental defects are not service connectable in their own right, service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGPREC 92-90 (1990). Distinguishing between a developmental disease and a developmental defect turns on whether the condition is dynamic or static in nature. A developmental disease is dynamic, "capable of improving or deteriorating," and "any worsening, any change at all, might demonstrate that the condition is a disease." Quirin v. Shinseki, 22 Vet. App. 390, 394-95 (2009). Conversely, defects are "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (1990). In her September 2017 medical opinion, the VA examiner referred to the Veteran's conditiona bicuspid aortic valveas "congenital." However, as she did not indicate whether it was a congenital "disease" or a congenital "defect," an addendum opinion is needed to determine this issue. Furthermore, if the Veteran's heart condition is determined to be a developmental defect, then an opinion is needed to address whether his currently diagnosed valvular heart disease or any other heart condition is due to a superimposed injury or disease during service, to include his uncontrolled hypertension. If the Veteran's bicuspid aortic valve is found to be a developmental disease, on the other hand, an opinion should be obtained to address whether the Veteran's heart condition is etiologically related to his service, to include his untreated hypertension during active service. The matters are REMANDED for the following action: Obtain an addendum opinion to the September 2017 VA examination regarding the nature and etiology of the Veteran's current heart condition. The Veteran's claims file must be made available to the examiner. Following review of the claims file, with any necessary examination and testing, the examiner should opine on the following: (a.) Is the Veteran's bicuspid aortic valve a (i) congenital/developmental defect OR (ii) a congenital/developmental disease? The examiner is advised that a disease generally refers to a condition that is considered capable of improving or deteriorating, while a defect is generally not considered capable of improving or deteriorating. (b.) If the examiner determines that bicuspid aortic valve is a congenital/developmental defect, explain whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran now has additional disability due to an in-service disease or injury superimposed upon his bicuspid aortic valve. The examiner must address the Veteran's contentions that his uncontrolled hypertension during service contributed to his current heart condition. (c.) If the examiner determines that bicuspid aortic valve is a congenital/developmental disease, opine on whether the disease (A) clearly and unmistakably existed prior to his active service, (B) clearly and unmistakably underwent no increase in severity as a result of his active service, and (C) clearly and unmistakably underwent no increase in severity due to his service-connected hypertension. (d.) Provide a rationale for all opinions proffered. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, Associate 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.