BVA9500516 DOCKET NO. 91-40 603 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for headaches, claimed as migraine. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a lung disorder, to include residuals of asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from October 1940 to October 1941. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1988 rating determination by the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held at the RO in September 1988. A transcript of the hearing is of record. The case was remanded by the Board in August 1992 for further development. The RO was instructed to request additional service records, and obtain additional medical records and a pulmonary examination. In October 1994, the case was returned to the Board for further appellate consideration. REMAND The veteran's claim for service connection for migraine was denied by the RO in August 1946 and, following notification of the determination later in August, the veteran did not perfect an appeal. The August 1946 rating decision therefore became final based on the evidence then of record. It is the last final denial on the merits. In determining if new and material evidence has been submitted, the Board is required to review all of the evidence submitted by a claimant since the last final denial on the merits in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523 (1994); Manio v. Derwinski, 1 Vet.App. 140 (1991). After a careful review of the record, the Board finds that the evidence received since the August 1946 rating decision is relevant and probative and when considered in conjunction with the evidence previously of record, raises a reasonable possibility of an outcome different from that reached by the RO in August 1946. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Evidence received since the August 1946 rating decision includes several pertinent medical opinions. In March 1984, Blake D. Berven, M.D., reported that the veteran did not have a history of migraine prior to service and that the disorder was "service connected". The December 1984 statements of Thomas E. Klump, M.D., and Mark S. Kochevar, M.D., are to the effect that there was no medical basis for connecting migraine to prior head injury. In addition the veteran's brother and an acquaintance reported that they did not recall the veteran having had a problem with headaches prior to service. The evidence is presumed to be credible. Justus v. Principi, 3 Vet.App. 510, 513 (1992). Private medical records showing treatment from May 1938 to March 1942 are also negative for headaches. In the August 1946 rating decision, the RO denied service connection for migraine finding that the disorder was developmental, of preservice origin and not aggravated by service. Evidence that was of record at the time of the August1946 rating decision showed observation for headaches during service for which no clear etiology was found. The headaches resulted in the veteran's discharge from service. A July 1946 statement from John J. Krygier, M.D., reports treatment of the veteran from July 1943 to June 1945 for headaches and other symptoms. In view of the foregoing, the Board concludes that the additional evidence raises the reasonable possibility of an outcome different from that reached by the RO in 1946. The claim for service connection for migraine must, therefore, be reopened and considered de novo. Regarding service connection for a back disorder, the record shows that in August 1992, C. W. Davis, D.C., reported that the veteran's back problem was the result of a service injury. Dr. Davis' statement gave the impression that records of treatment dating from the 1950's were reviewed. The veteran testified that he received treatment from 1950 to 1972. The record of treatment was not obtained. The service medical records confirm that he was hospitalized for several days in November 1940 for sprain of the lumbosacral muscles. The Board is unable to assign weight or probative value to the medical opinion without opportunity to review the record upon which the opinion was based. Neither is there a current VA medical examination or opinion on the etiology of the veteran's back disability. Regarding service connection for a lung disability, we observe that the veteran based his entitlement on asbestos and bronchitis in service. In February 1989, the RO, in denying service connection for lung problems including pulmonary fibrosis from asbestos exposure, held that "sound medical opinion" indicated that cigarette smoking was the basis for the veterans chronic obstructive pulmonary disease. In May 1994, a VA medical examiner reported that the predominant physiological and X-ray abnormality was obstructive disease which is more characteristic of tobacco-related damage and almost entirely inconsistent with asbestos exposure, but that asbestos related disease was present to a clinically insignificant , but nonetheless demonstrable level. It was reported that the veteran smoked from 1940 to 1972. The Board observes that the record of medical treatment received from Blake D. Berven, M.D., includes an April 1980 letter from a Social Security Administration Administrative Law Judge regarding the veteran's claim for disability insurance benefits. Records from that agency have not been obtained. In light of the foregoing, the Board concludes that further development, as specified below, is required. Accordingly, this appeal is REMANDED to the RO for the following actions: 1. The RO should contact the Social Security Administration in order to obtain copies of all records pertaining to the appellant from that agency, especially any records pertaining to an award of disability benefits to the appellant. 2. The RO should request that the appellant provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who treated the veteran for any back disorder since his separation from active service and in recent years for headaches. With any necessary authorization, the RO should attempt to obtain copies of those treatment records identified by the appellant which have not been previously secured. 3. Thereafter, the case should be scheduled for an examination by a board- certified physician in respiratory diseases, if available. The specialist is requested to review the claims file and provide an opinion as to whether it is at least as likely as not that the veteran's cigarette smoking during service played a material causal role in the development of any of the lung disabilities that have been confirmed and whether the bronchitis reported during service was an initial manifestation of any lung disorder now present. A complete rationale should be offered for all opinions and conclusions expressed. 4. The RO should then schedule the veteran for examination by an orthopedic specialist (board-certified, if available) in order to determine the current nature and extent of any back disorder present. All indicated studies should be performed. The claims folder must be made available to the examiner for review. The orthopedist should review the claims file and offer an opinion as to the etiology of any back disability found, to include an opinion as to whether it is at least as likely as not that the back disability is etiologically related to the lumbosacral muscle strain reported during service. 5. The RO should then schedule the veteran for examination by a neurologist (board- certified, if available) in order to determine the current nature and extent of any headache disorder present. All indicated studies should be performed. The claims folder must be made available to the examiner for review. The examiner should offer an opinion as to the etiology of headaches found to be present, to include an opinion as to whether it is at least as likely as not that any headache disorder found is etiologically related to a headache disorder shown during service. A complete rationale should be offered for all opinions and conclusions expressed. 6. The RO should then readjudicate the appellant's claims of entitlement to service connection for a lung disorder and a back disorder and the claim of entitlement to service connection for headaches de novo. If the benefits sought on appeal are not granted to the appellant's satisfaction, or if a timely Notice of Disagreement is received with respect to any other matter, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and his representative. They should be provided an opportunity in which to respond. Thereafter, in accordance with the proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. F. JUDGE FLOWERS Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).