Citation Nr: 0007293 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-14 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for headaches, and if so, whether the claim is well grounded. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from August 1963 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Since the January 1991 unappealed RO denial of the claim for service connection for headaches, evidence was submitted which was not previously before agency decisionmakers and which bears directly and substantially upon the specific matter under consideration. This evidence is neither cumulative nor redundant, and by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The claim for service connection for headaches is not plausible. CONCLUSIONS OF LAW 1. Evidence submitted since the January 1991 decision denying service connection for headaches, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The claim for service connection for headaches is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Clinical evaluation of the veteran's neurologic condition and head was normal at his August 1963 enlistment examination. The August 1963 report of medical history does not include complaints of headaches. Service medical records dated in December 1965 reflect that the veteran complained of a 10-year history of progressive right-sided headaches. He had often stopped them in the past by Valsava or smoking a cigarette through his nose. Physical examination was within normal limits. He was prescribed medication. Clinical evaluation of the veteran's neurologic condition and head was normal during his August 1967 separation examination. In a January 1991 RO rating decision, the RO denied service connection for a headache condition, noting that the veteran was seen one time in service for headaches, at which time he gave a 10-year history of progressive right-sided headaches, and did not show that he had received treatment for headaches since his discharge from service in 1967. The veteran did not appeal this decision. During the veteran's September 1998 RO hearing, he testified that he had intermittent headaches. He said the he alleviated the pain by smoking a cigarette through his nose. He described a brief period of sensation on the side of his temple or in the back of his right neck before the onset of the headaches. He described unbearable severe and sharp pains with the headaches. He described the headaches as having begun after inservice exposure to paint and paint thinner fumes while painting in a confined area on a ship over a period of two weeks. He said a corpsman gave him pain relievers for the headaches, but that these were not effective. He said that after service, while working for the Brown & Williamson tobacco factory, he discovered that he could stop the headaches by smoking a cigarette through his nose. He said that his headaches cause him to have to sneak cigarettes on the job or to smoke cigarettes at awkward times, and to be unable to stop smoking. He said he had not been seeing doctors on a regular basis for the headaches and that he had never been hospitalized for the headaches. He said that while at Brown & Williamson he would lie down at the nurse's station sometimes because of his headaches. He asserted that while working a Waste Water Treatment Plant from around 1985 to 1987, they had to drop him off at a hospital emergency room two or more times for headaches. There is no post-service medical evidence of record reflecting complaints, treatment or diagnosis of headaches. Analysis The RO denied service connection for headaches in a January 1991 rating decision. Although the RO notified the veteran of that decision, he did not appeal. Therefore, the RO's decision of January 1991 is final. 38 U.S.C.A. § 7105 (West 1991). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999); Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 218 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. Service connection for headaches was denied by the RO in a rating decision dated in January 1991. The denial was not appealed and became final. Since that time evidence in the form of hearing testimony and written statements has been received which was not previously submitted to agency decisionmakers, which bears directly and substantially upon the matter under consideration, which is neither cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered to fairly decide the merits of the claim. Specifically, new to the record is the veteran's assertion that, contrary to histories reflected in the service medical records, his headaches began during service rather than prior to service. The veteran placed special emphasis on this contention in a written statement submitted with his February 1998 application to reopen his claim. The Board is of the view that it must acknowledge and consider this contention in order to decide the claim based on a complete record. Accordingly, the claim for service connection for headaches is reopened. 38 C.F.R. § 3.156(a). The Board makes this determination with an emphasis on completeness of the record rather than whether the outcome of the claim would be different in light of the new evidence. Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim for service connection to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well- grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In the present case, whether or not the veteran's headaches began prior to or during service, there is no medical evidence of record of current headaches. There are no post- service medical records of treatment or diagnosis of headaches. The Board acknowledges the inservice treatment of headaches, but with no medical diagnosis of a corresponding current disability, the claim for service connection based on inservice headaches must be denied as not well grounded. Epps; Caluza. The Board acknowledges that, as is reflected by a January 1999 supplemental statement of the case, the RO denied the veteran's claim on the ground that new and material evidence adequate to reopen the claim for service connection for headaches had not been submitted. There is no medical evidence of a current headache disability. Thus, even if the RO had found new and material evidence to have been submitted, there is a clear absence from the total record of a required element of the Caluza criteria for a well grounded claim. Accordingly, the claim would have necessarily been denied. It is clear that the RO decision not to reopen the claim was not prejudicial to the claim because it would have been denied as not well grounded even if reopened. Winters v. West, 12 Vet. App. 203, 207-208 (1999). Because the claim is not well grounded, the Board cannot remand the case for the purpose of assisting the veteran in developing the facts pertinent to development of his claim, to include obtaining private medical records which he asserts would support his claim. Morton v. West, 12 Vet. App. 477 (1999). ORDER The claim for service connection for headaches is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals