Citation Nr: 23057775 Decision Date: 10/25/23 Archive Date: 10/25/23 DOCKET NO. 20-02 086 DATE: October 25, 2023 ORDER New and material evidence having been received, the previously denied claim for service connection for a left shoulder disability is reopened. New and material evidence having been received, the previously denied claim for service connection for a migraine disability is reopened. REMANDED The claim for service connection for a left shoulder disability is remanded. The claim for service connection for insomnia is remanded. The claim for service connection for a migraine disability is remanded. The claim for nonservice-connected pension prior to November 18, 2022 is remanded. FINDINGS OF FACT 1. In a September 2008 rating decision, the Regional Office (RO) denied, in pertinent part, service connection for a left shoulder disability and service connection for a migraine disability; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the rating decision in September 2008 relates to unestablished facts and raises a reasonable possibility of substantiating the claims for service connection for a left shoulder disability and a migraine disability. CONCLUSIONS OF LAW 1. The rating decision dated in September 2008 denying the Veteran's claims for service connection for a left shoulder disability and service connection for a migraine disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received sufficient to reopen the previously denied claim for service connection for a migraine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received sufficient to reopen the previously denied claim for service connection for a left shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to November 1975. These matters come before the Board of Veterans' Appeals (Board) from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2022. A transcript of that hearing is of record. During the pendency of the appeal, the RO granted nonservice-connected pension, effective November 18, 2022. As the Veteran has maintained that he is seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Petitions to Reopen 1. Whether new and material evidence was received sufficient to reopen the previously denied claim for service connection for a left shoulder disability 2. Whether new and material evidence was received sufficient to reopen the previously denied claim for service connection for a migraine disability The Veteran seeks to reopen the previously denied claims of service connection for a left shoulder disability and a migraine disability. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). "New evidence" means existing evidence not previously submitted to VA. "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). In this case, the AOJ initially denied entitlement to service connection a left shoulder disability in a June 1978 rating decision. See Rating Decision (June 1978). The Veteran did not appeal or submit new evidence for the June 1978 rating decision within the appeal period. Therefore, the June 1978 rating decision became final. In April 2007, he sought to reopen his claim for service connection for a left shoulder disability, and submitted a new claim for service connection for a migraine disability. The AOJ issued a July 2007 rating decision, which determined, in part, that new and material evidence had not been received to reopen the claim for service connection for a left shoulder disability and denied service connection for a migraine disability. See Rating Decision - Narrative (July 2007). The Veteran submitted a claim to reopen the issues of service connection for a left shoulder disability and a migraine disability in May 2008. By September 2008 rating action, the AOJ determined, in part, that new and material evidence had not been received to reopen the claims. See Rating Decision - Narrative (September 2008). The Veteran did not appeal or submit new evidence within the appeal period. Therefore, the September 2008 rating decision became final with respect to the claims of service connection for a left shoulder disability and a migraine disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The June 1978 rating decision reflects that the Veteran's claim for service connection for a left shoulder disability was denied because his condition existed prior to service and there was no evidence of left shoulder treatment in service. In the July 2007 rating decision, the RO denied the Veteran's claim for service connection for a migraine disability because there was no nexus between the Veteran's current migraine disorder and his period of military service. Thus, for the Veteran's claims to be reopened, new and material evidence must have been added to the record since the last final rating decision, namely showing that a left shoulder disability and a migraine disability are related to his period of service. Since issuance of the September 2008 final rating action, evidence received into the record includes, but is not limited to, the Veteran's April 2022 Board hearing testimony before the undersigned. See Hearing Transcript (April 2022). The Board finds the Veteran's April 2022 testimony both new and material to reopen the Veteran's claims for a migraine disability and a left shoulder disability. The April 2022 testimony is new because it was not of record at the time of the September 2008 rating decisions. The testimony is also "material" because it relates to unestablished facts necessary to substantiate the claims. More specifically, the Veteran testified that activities in Basic Training, including shooting an M-16, continuously caused his left shoulder to dislocate, and that he has experienced continuous left shoulder issues since service. Regarding his migraines, the Veteran testified that he began having migraines immediately following chemical warfare training during Basic Training, and that he has experienced migraines since that time. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran's claims for service connection for these disabilities. 38 C.F.R. § 3.156(a). As the credibility of new evidence is generally presumed, the Veteran's claims for service connection for migraine disability and a left shoulder disability are reopened. REASONS FOR REMAND 3. Service connection for a left shoulder disability The Veteran contends that he is entitled to service connection for a left shoulder disability. More specifically, the Veteran testified that his responsibilities in service caused his left shoulder to repeatedly dislocate, and that he has experienced continuous left shoulder issues since service. See Hearing Transcript (April 2022). To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. It does not appear that the AOJ obtained a medical opinion in this matter. Here, the record reflects that the Veteran has a current left shoulder disability. Further, the record reflects evidence of in-service injury, described as a continuous dislocation of the left shoulder during Basic Training. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding lay testimony to be competent when it regards the features or symptoms of an injury or illness. Therefore, given the available evidence and the Veteran's statements and sworn testimony, there is competent evidence of a potential relationship between the Veteran's left shoulder disability and service to warrant remand for an examination and medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board observes that the evidence needed to trigger VA's duty to furnish a medical opinion or examination is low. Additionally, as explained above, the record raises a question as to whether the Veteran's left shoulder disability preexisted service. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, the Veteran's enlistment physical is negative for any upper extremity conditions. As such, the presumption of soundness attaches. However, the June 1978 rating decision references the Veteran's service application, in which he reports having a history of left shoulder dislocation. See Rating Decision (June 1978). As noted above, VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran's disease or injury existed prior to service and clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. In light of the foregoing, the Board finds that an opinion on this topic is necessary. Additionally, a review of the claims file reflects that during August 2016 VA treatment, the Veteran reported receiving medical care outside of VA for his left shoulder. See CAPRI (December 2019). Accordingly, a remand is required to allow VA to obtain authorization and request these records. 38 C.F.R. § 3.159(e)(2). Lastly, VA treatment records reflect that non-VA treatment records have been scanned into VA's Veterans Health Information System Technology Architecture (VistA) Imaging system. The corresponding medical notations reflect that the outstanding records relate to orthopedic treatment. See CAPRI (February 2017). Copies of these scanned records are not included in the claims file, and appear potentially relevant to the issue of entitlement to service connection for a left shoulder disability. The Board notes that, in Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that "where the documents proffered by the appellant are within the Secretary's control and could reasonably be expected to be a part of the record 'before the Secretary and the Board, such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Thus, remand is necessary to associate copies of these scanned records into the Veteran's claims file for review. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Efforts to obtain these records must continue unless these records do not exist among the VistA systems records, which the AOJ should note in the claims file. 4. Service connection for insomnia The Veteran contends that he is entitled to service connection for insomnia because the condition began in service and has continued to the present. See Hearing Transcript (April 2022). To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Service treatment records (STRs) are associated with the claims file and reflect treatment for difficulty sleeping in March 1975. See STR- Medical (May 1978). Further, at the April 2022 Board hearing, the Veteran testified that during service, he missed a flight because of his sleeping disorder. See Hearing Transcript (April 2022). He reported that he was considered AWOL and was put in "some kind of detention," where he went through several examinations and tests. As an initial matter, the Veteran's personnel records are not associated with the claims file. Because the Veteran testified to disciplinary action due to oversleeping, the records may be relevant to the Veteran's claim, and remand is necessary to associate the outstanding service records with the claims file. Furthermore, the Veteran was not afforded a VA examination for his claimed sleep disorder. The Board notes that where the evidence of record shows a claimed disability, a potentially relevant in-service event, and suggests a causal link between the two, but the medical evidence is insufficient to decide the claim, VA must provide a medical examination. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79. Accordingly, remand for VA examination in the matter is necessary. Additionally, the record raises a question as to whether the Veteran's sleeping condition preexisted service. During his April 2022 Board hearing, the Veteran testified that his sleep disorders preexisted service, and that he identified these issues during his enlistment physical. However, the Veteran's entrance examination report is negative for any sleeping conditions. The history provided at service entry is not considered "noted" for presumption of soundness purposes, and as such, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b) (only where a condition is recorded in an examination report is it presumed to preexist service). As noted above, VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran's disease or injury existed prior to service and clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. The Board finds that an opinion on this topic is necessary. Lastly, during VA treatment in November 2005, the Veteran reported "a past history with the VA about 7 years ago." See Medical Treatment Record - Government Facility (December 2005). VA treatment records reflect that the Veteran was prescribed a sleep aid medication as early as December 2005. Medical records prior to November 2005 are not associated with the record and it is not clear when he began receiving treatment for a sleeping condition. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 5. Service connection for a migraine disability The Veteran contends that he is entitled to service connection for a migraine headache disability that began in service and continued to the present. See Hearing Transcript (April 2022). The AOJ did not obtain a medical opinion in this matter. Here, the record reflects that the Veteran has a current migraine headache disability. Further, the record reflects evidence of in-service injury, described as headaches immediately following chemical warfare training during Basic Training, and that he has had continuous migraines since that time. See Layno, 6 Vet. App. 465. Therefore, given the available evidence and the Veteran's statements and sworn testimony, there is evidence of a potential relationship between the Veteran's migraine disability and service to warrant remand for an examination and medical opinion. See McLendon, 20 Vet. App. 79. 6. Entitlement to nonservice-connected pension prior to November 18, 2022 Finally, because a decision on the remanded issues of service connection for a left shoulder disability, a migraine disability, and insomnia could significantly impact a decision on the issue of entitlement to nonservice-connected pension, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel and service treatment records. 2. Obtain all outstanding VA treatment records and associate with the Veteran's claims file copies of all treatment records that have been scanned into the VistA Imaging system. See e.g., CAPRI (February 2017). 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs or symptoms of his left shoulder, insomnia, and migraines. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for a VA examination to obtain an opinion regarding the etiology of any left shoulder disability. The examiner should answer the following: Preexisting Left Shoulder Disability (a.) Did the Veteran's left shoulder disability clearly and unmistakably (undebatable) preexist his service? Why or why not? (b.) If so, was the left shoulder disability clearly and unmistakably not aggravated by service (meaning that any permanent worsening of the disability was not beyond the natural progression of the disability)? Why or why not? The examiner should consider the Veteran's reports of left shoulder injuries from shooting an M-16 during Basic Training. Non-Preexisting Left Shoulder Disability (c.) Is it at least as likely as not that the Veteran's left shoulder disability began in or was otherwise caused by the Veteran's active military service, to include the Veteran's reports of left shoulder injuries from shooting an M-16 during Basic Training. Why or why not? 5. Schedule the Veteran for a VA examination to obtain an opinion regarding the etiology of any insomnia condition. The examiner should answer the following: Preexisting Sleeping Disability (a.) Did the Veteran's sleeping disability clearly and unmistakably (undebatable) preexist his service? Why or why not? (b.) If so, was the sleeping disability clearly and unmistakably not aggravated by service (meaning that any permanent worsening of the disability was not beyond the natural progression of the disability)? Why or why not? The examiner should consider the Veteran's treatment for difficulty sleeping in March 1975. Non-Preexisting Sleeping Disability (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran sleeping disability began in or was otherwise caused by the Veteran's active military service, to include as evidenced by the Veteran's treatment for difficulty sleeping in March 1975? Why or why not? 6. Schedule the Veteran for a VA examination to obtain an opinion regarding the etiology of any migraine disability. The examiner should opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal), that the Veteran's currently diagnosed migraine disability began in or was otherwise caused by the Veteran's active military service, to include as a result of chemical warfare training during Basic Training. Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.F., 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.