Citation Nr: 0000882 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 94-23 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from August 1966 to February 1968. The veteran's claim of entitlement to service connection for migraine headaches was denied in 1968 determinations from the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO). The Board of Veterans' Appeals (Board) affirmed the denial of service connection in a September 1968 decision. In March 1993, the veteran filed an application to reopen his claim for service connection for migraine headaches. This matter was previously before the Board on appeal from April 1993 and November 1993 decisions from the VARO not to reopen the veteran's claim. In May 1996, the Board remanded the case to obtain additional medical records and a VA examination to determine the nature and etiology of the migraine headaches. This matter is now before the Board for final appellate review. The December 1999 informal brief of the appellant claimed clear and unmistakable error in the decision denying service connection for a low back condition. This matter is referred to the RO. FINDINGS OF FACT 1. Evidence received since the September 1968 Board decision included medical evidence of a current diagnosis of migraine headaches and a medical opinion linking current migraine headaches to service. 2. There was no diagnosis of migraine headaches at entry into active duty and the service medical records show that migraine headaches manifested while the veteran was in service. CONCLUSIONS OF LAW 1. The evidence received since the September 1968 Board decision is new and material evidence; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). 2. Migraine headaches were incurred during active service. 38 U.S.C.A. §§ 1110, 1111 (West 1991); 38 C.F.R. §§ 3.303, 3.304(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The state of the evidence prior to the Board's September 1968 decision follows. The May 1966 enlistment examination report stated that the veteran's head, eyes, and neurologic systems were normal except for defective vision correctable to 20/25 in the right eye and 20/30 in the left eye. The veteran reported a history of frequent or severe headaches that the examiner characterized as occasional mild headaches. The examiner stated that the veteran was qualified for enlistment. The veteran walked in to the clinic in March 1967 with complaints of pain in the left eye with blurred vision that had started an hour earlier. Service medical records shows that, in April 1967, June 1967, July 1967 and October 1967, the veteran sought treatments at the neurology clinic for migraine headaches. In April 1967, the veteran had a right- sided headache with some blurred vision but no nausea. In July 1967, the veteran reported a history of headaches for the past 5 years. The headaches occurred about once per month and lasted several hours. The attacks were preceded by 30-45 minutes of scotomata of the left eye. The headaches were usually unilateral with nausea and no vomiting. At various times, the examiners prescribed Cafergot, Darvon, Fiorinal, and Seconal. While in service in December 1967, the veteran reported a 5- year history of headaches with the beginning of visual scotomata in the left eye that lasted 15-30 minutes and then was replaced by generalized severe throbbing headache, perhaps more marked in the supraorbital regions. The veteran had been evaluated previously and placed on Cafergot that originally provided good relief but that had been less beneficial more recently. Without medications, the headaches might last 1-2 days at times, frequently accompanied by nausea. The headaches occurred on an average of 1-2 times per month. The veteran was also bothered with milder headaches of the muscular tension-type that occurred less frequently. The impression was migraine headaches that existed prior to service and tension headaches. In February 1968, the veteran received an honorable medical discharge. The Physical Evaluation Board found that migraine headaches existed prior to service without service aggravation. The veteran underwent a VA examination in April 1968. The veteran reported onset at age 15 of headaches that came only occasionally and at large intervals. After 6 months of service, the headaches occurred more frequently, at first once, and later on, twice per month. The attacks usually started with the veteran seeing spots in the left eyes for 15-30 minutes. Then the spots disappeared, and the severe headaches started, mainly in the left side and involving both eyeballs. Most of the time, the veteran felt nauseated and occasionally had to vomit. The migraines still occurred once or twice a month and were the main cause for the veteran's discharge from service. The diagnosis was migraine headaches. The state of the evidence since the Board's September 1968 decision follows. The veteran underwent a VA examination in December 1968. The veteran reported a history of infrequent severe headaches from age 15 that occurred every 12-18 months. While in service, the headaches occurred 1-2 times per month and lasted 3-4 days without medicine. Cafergot relieved the headaches in 3-4 hours if taken early at the onset. The veteran had not had a headache in 4 months. The diagnosis was recurrent headaches. In the April 1994 appeal, the veteran alleged that he had never been treated for headaches before service. He alleged that his headaches were mild and attributable to sinusitis when he entered service. He first heard the word "migraine" when he was examined in April 1967, over 10 months after he entered service. He alleged that, from March 1967 to December 1967, he had frequent migraine headaches, on at least 9 different occasions. While in service, he alleged that there were times that parts of his vision were missing. For example, if he looked at his hands, his fingers might not be there, or if he looked at another person, that person's nose might be missing. He had never experienced this condition before service. His condition increased in severity until his discharge for physical disability and continued after service. The veteran underwent a VA examination in June 1993. The veteran reported that auras of very bright lines preceded the headaches. During the headaches, he was nauseated and had to sit in a quiet, dark room until the headache subsided. He tried Darvon in the past without success but Midol seemed to help. The diagnosis was classic migraine headaches. The veteran underwent a VA examination in March 1997. The veteran reported that he started having headaches at ages 12- 14. When he started service, he noticed stars in the vision for the first time. The headaches were less severe now, possibly because he now took Midol and caffeine for the headaches and avoided white bread, cigarettes, and alcohol. Nothing specific set the headaches off. For about half an hour, the veteran felt anxiety in the stomach and light- headedness before he saw white dots off to the right side of his vision, and he might lose central vision and some vision on the left. After the vision problems cleared up, he had a bilateral headache in the occiput to the orbital area that lasted anywhere from 8 hours to 4 days. He was hospitalized on one occasion because of the severity of these headaches. The veteran reported that he used to have at least 1 headache every month but the headaches now occurred about 2-3 times per year, treated only with Midol. The examiner was not sure that the headaches were all that severe because the one time the veteran was offered Imitrex injections, he declined. The impression was that the veteran had evidence of fairly classical migraines, beginning at ages 12-14, somewhat more severe in the service and now actually doing better. The examiner opined that the migraines seemed to be of the classic variety with the visual aura followed by a bilateral headache with nausea and vomiting. The veteran underwent another VA examination in May 1999. The examiner reviewed the veteran's medical records and claims file. The veteran reported the onset of significant headaches while in service. The first headache lasted approximately 3 days, and he did not seek medical care. The veteran reported that he had a headache about every week. After the third or fourth headache, he sought medical care and was treated with decongestants and told that he had a sinus headache. This headache pattern was severe every 2 weeks and lasted 4 hours. He had residual soreness in the temple of the left scalp for approximately 2-3 days. After this, the veteran began treatment with Darvon and Cafergot. His headache pattern was variable and occurred either twice a week or none for 3 months. At this time, the veteran's headaches were "a piece of cake." He had a visual spot or stars in his left eye and left nasal blockage. This was followed 15 minutes later by a headache behind and around the eyes that stayed in one spot and might cause pressing, constant discomfort. The veteran usually went home, took a hot bath, and rested in a dark room. During the headaches, he had left nasal drainage and left eye tearing. He continued to have some residual soreness and pain in the left temple and scalp on the back, and he could get stiffness in the head. He never noted headaches starting on the right side. The intensity of pain had been 7-8 on a 10-point scale. His headaches now occurred twice a year approximately every 6 months with the last headaches 6-7 months ago. When in service, the veteran saw bright spots in front of the left eye followed 10-15 minutes later by a headache and a tired or droopy feeling in the left eye. He had associated nausea and vomiting but did not report this as significant. In the last 5 years, the headache pattern had decreased from 4 times per year to a current 2 times per year. The headaches were not as intense and did not last as long. For the last pain, he took Midol, and the pain lasted only a few hours. The veteran reported a "minor headache" that occurred 5-6 times per year and caused pain in the neck and top of the head. He took Tylenol for this. His headaches had been more severe, and he remembered being hospitalized in New Mexico in the 1970's for a severe headache for 3-4 days. After physical examination, the diagnoses were common migraines and minor musculoskeletal headaches. The examiner noted that the pattern and intensity of the headaches were much diminished from the time the veteran was in service and that headache patterns varied greatly according to age, lifestyle, medications, and use of cigarettes, coffee, or alcohol. The examiner opined that there was not a noted natural progression of this disease. He further opined that the veteran seemed to have headaches at this time that were similar to the ones in service but of much less intensity and certainly much less frequency. Criteria Despite the finality of a prior final RO decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Under Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the determinations of whether evidence is new and whether it is material are governed by the tests set forth in 38 C.F.R. § 3.156(a), "new" evidence "means evidence not previously submitted to agency decision makers . . . which is neither cumulative nor redundant"; "material" evidence is new evidence "which bears directly and substantially upon the specific matter under consideration" 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 U.S.C.A. § 5108; Fossie v. West 12 Vet. App. 1 (1998); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156(a). A two-step analysis is conducted under 38 U.S.C.A. § 5108. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In Elkins v. West, 2 Vet. App. 422 (1999) (en banc), Court held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a), i.e., the new evidence bears directly and substantially on the specific matter, and is so significant that it must be considered to fairly decide the merits of the claim; second, if new and material evidence has been presented, immediately upon reopening the Board must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Board may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. See Elkins v. West, 2 Vet. App. 422 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc); Justus v. Principi, 3 Vet. App. 510 (1992). When determining whether the claim should be reopened, the credibility of evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). A veteran is presumed to be in sound condition when accepted for service, with the exception of disorders noted at the time of entrance into service unless clear and unmistakable (obvious and manifest) evidence demonstrates that the injury existed prior to service. 38 U.S.C.A. §§ 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required where the condition noted during service or in the presumptive period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Savage v. Gober, 10 Vet. App. 488 (1997), the Court established the following rules with regard to claims addressing the issue of chronicity: The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Therefore, notwithstanding the veteran's showing of an in-service injury, and statements of post-service continuity of symptomatology, medical expertise is required to relate his disabilities etiologically to his post-service symptoms. Savage, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The veteran has presented new evidence that was not in the record at the time of the September 1968 rating decision: 1) lay statements since September 1968; and 2) the December 1968, June 1993, March 1997, and May 1999 VA examination reports. This evidence is new and material because the record previously contained no lay statements or medical records since September 1968 to help explain the nature and duration of the veteran's current disability or to provide a nexus between the current disability and service. The claim must be reopened because, in connection with previously assembled evidence, the new and material evidence is so significant that it must be considered in order to fairly decide the merits of the claim. The post-September 1968 lay statements and medical reports, in conjunction with the previous evidence, established a well grounded claim. The veteran has a current disability of migraine headaches because the June 1993, March 1997, and May 1999 VA examiners stated a current diagnosis of classical or common migraine headaches. The veteran was diagnosed with migraine headaches while in service because service medical records show treatments for migraine headaches in April 1967, June 1967, July 1967, and October 1967. The veteran also satisfied the Caluza nexus requirement because the May 1999 VA examiner diagnosed migraine headaches and opined that the veteran seemed to have current headaches that were similar to the ones in service. The record also showed continuing symptomatology since service because the VA examinations of 1968, 1993, 1997, and 1999 showed a diagnosis of migraine headaches, and numerous lay statements asserted continuity of migraine headaches since 1967. Therefore, the claim for service connection for migraine headaches is well grounded. If the claim is well grounded, the case will be decided on the merits, but only after the Board has determined that the VA's duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. Although he voluntarily declined the opportunity for a hearing, the veteran underwent several VA examinations, and he filed numerous lay statements with the RO. The RO obtained service medical records and requested medical records from most of the identified health care providers. Most of the post-service medical records were not available because, according to the veteran's September 1996 letter, Dr. Lowery, Dr. Brower, and the Plains Regional Medical Center had purged records. The VA has a duty to assist, however, because the RO did not comply with an instruction from the May 1996 remand. The RO did not request or obtain medical records from Roosevelt General Hospital although the claims file held a signed authorization for release of information, dated March 1993, complete with mailing address and dates of hospitalization. Nonetheless, this case may be decided on the merits without the missing records because the existing record established service connection for migraine headaches. Initially, the veteran was presumed sound at entry into service because the enlistment examination report stated that the veteran was normal, and the defects and diagnoses did not include migraine headaches. There are no medical records to show a diagnosis of migraine headaches prior to service because the veteran's appeal stated that he had never been treated for headaches before service. Although he checked frequent or severe headaches on the enlistment history and reported a 5-year history of headaches to the July 1967 examiner, the veteran was not competent to diagnose the cause of his headaches, and indeed, he did not. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). The December 1967 examiner, the February 1968 Physical Examination Board, and the March 1997 VA examiner opined that migraine headaches pre-existed service. These opinions, however, are not clear and unmistakable evidence that migraine headaches pre-existed service because the enlistment examiner characterized the pre-service headaches as occasional and mild, and the May 1999 VA examiner diagnosed musculoskeletal headaches in addition to migraine headaches. The veteran also attributed his pre-service headaches to sinusitis and described new symptoms for the migraine headaches in service. The opinion of the May 1999 VA examiner is more probative because he had the benefit of reviewing the veteran's claims file and 30 more years of the veteran's medical records. For the foregoing reasons, the current disability of migraine headaches was incurred in military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303. Although the Board decided the veteran's claim on grounds different from that of the RO, which denied reopening the claim, the veteran has not been prejudiced by the decision. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER New and material evidence having been received, the claim is reopened, and entitlement to service connection for migraine headaches is granted. V. L. Jordan Member, Board of Veterans' Appeals