BVA9504120 DOCKET NO. 93-10 701 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a headache disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from November 1942 to November 1945. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his current headaches are the result of the shell fragment wound to his scalp that he incurred during active military duty. In addition, he continues to maintain that he has received treatment, including medication, for his headaches since his discharge from service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen a claim of entitlement to service connection for a headache disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In a rating decision of February 1964, the Regional Office (RO) denied the veteran's claim of entitlement to service connection for migraine headaches. 3. The evidence submitted since the RO's 1964 decision, when viewed in the context of all of the evidence of record, is duplicative of evidence previously considered and does not raise a reasonable possibility of changing the outcome. CONCLUSIONS OF LAW 1. The decision of the RO in February 1964 denying the veteran's claim of entitlement to service connection for migraine headaches is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. Since the RO's February 1964 decision, new and material evidence has not been received, and the veteran's claim has not been reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 3.159 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claim is well- grounded and that it has been appropriately developed by the RO. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.159 (1994). The Board notes that in the substantive appeal, which was received at the RO in January 1993, the veteran pointed out that he had not been accorded a compensation and pension examination or any other tests to determine the nature and extent of his headache condition. However, any additional examination or testing regarding the present nature and extent of the veteran's headaches would not provide information regarding the etiology of this condition. Such additional examination and testing would not provide evidence which is new and material and sufficient to reopen his claim of entitlement to service connection for headaches. Consequently, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). The most recent rating decision on the merits of the claim for entitlement to service connection for headaches is a rating decision of February 1964. In this rating decision, the RO denied service connection for migraine headaches based on the evidence that was then of record. Specifically, the RO reviewed the veteran's contentions, as well as the service medical records and post-service examination and medical reports. At the time of the February 1964 rating decision, the veteran contended that he was experiencing terrible headaches which were related to the shrapnel wound to his head that he received during service. A review of the service medical records indicates that in November 1942 the veteran sought treatment for complaint of headache. He was treated with aspirin and returned to duty. The service medical records contain no further evidence of complaints of, treatment for, or findings of a headache disability. In October 1943, the veteran was treated for a wound to his forehead. According to the service medical records, the veteran was struck in the frontal area of his scalp by a shell fragment. He reported at the May 1956 VA examination that this in-service wound to his scalp did not fracture his skull and that he was hospitalized for approximately one week after incurring this wound. Significantly, however, the service medical records do not show any complaints of, treatment for, or findings of a headache disability at the time that the veteran was hospitalized for the shell fragment wound to his head. Moreover, the separation examination was normal and made no notation of any complaints of or findings of a headache disability. At the time of the February 1964 rating decision, the RO also considered a private medical statement dated in March 1956 which reflected that the veteran had complained of headaches and dizziness. Although the physician made a diagnosis of an old injury to the head, the physician did not specifically relate the veteran's complaints with the in-service wound to his forehead. Moreover, the physician did not appear to have access to the veteran's previous medical records, including his service medical records. Therefore, any opinion that the physician may have made would not have been based on medical evidence but, rather, the veteran's own statements. In addition, the RO in February 1964 also considered VA examination reports dated in May 1956 and January 1964. At the May 1956 VA examination, the veteran reported that his headaches began in approximately 1953 or 1954. The examiner diagnosed migrainous equivalent headaches. Significantly, however, the examiner specifically stated that he did not believe that the veteran's headaches were related to the in-service shrapnel wound to his forehead. The examiner explained that the damage at the time of the in-service wound was minimal and that the veteran did not have any relevant complaints after his separation from service until 1953. X-rays taken of the veteran's skull at the January 1964 VA examination showed a somewhat deformed configuration which the radiologist explained was congenital in origin. Significantly, no headache disability was diagnosed at this examination. Based on these contentions and medical evidence, the RO determined in the February 1964 decision that a headache disability was not incurred in or aggravated by service. The veteran was notified of this decision in March 1964. He filed a notice of disagreement with this determination in March 1964. A statement of the case was issued in April 1964; however, he did not file a substantive appeal. Because a timely appeal was not made, the decision became final. 38 U.S.C.A. § 7105 (West 1991). Nevertheless, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened, and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). The United States Court of Veterans Appeals (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Stanton v. Brown, 5 Vet.App. 563, 566 (1993). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court explained in Colvin that "new evidence" is evidence that is not "merely cumulative" of other evidence of record. Id. The Court has also explained that evidence is "material" where it is "relevant to and probative of the issue at hand" and where it is of "sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); and Colvin, 1 Vet.App. at 174. Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court recently reviewed and upheld these standards regarding the issue of finality. Reyes v. Brown, 7 Vet.App. 113 (1994). The Court has held that VA is required to review all of the evidence submitted by a claimant since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523, 529 (1994). Therefore, in the present case, the Board must review, in light of the applicable law, regulations, and Court cases regarding finality, all of the additional evidence submitted since the RO's February 1964 decision, which was the last decision adjudicating the veteran's claim of entitlement to service connection for headaches on the merits. The Court has set forth guidelines regarding the credibility to be accord to the additional evidence submitted in a claim for service connection based on finality. In particular, the Court has held that, in determining the issue of whether the additional evidence submitted is new and material, a question of law, the credibility of the evidence must be presumed. However, this presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows the reopening, the Board having accepted provisionally for reopening purposes the credibility of the new evidence, then must determine, as a question of fact, both the weight and credibility of the new evidence in the context of all the evidence, new and old. Justus v. Principi, 3 Vet.App. 510, 512-513 (1992). Recently, however, the Court has held that this presumption of credibility is not unlimited. Specifically, the Court has stated that Justus does not require the VA to consider patently incredible evidence (e.g. the inherently false or untrue) to be credible. Duran v. Brown, No. 93-338, slip op. at 6 (U.S. Vet. App. Dec. 13, 1994). According to the applicable law and regulations, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1994). Since the RO's 1964 decision, the veteran has submitted additional post-service examination reports and medical records, as well as his own contentions. Presuming the credibility of the veteran's contentions, as well as the post-service examination reports and medical records, the Board finds that the veteran has not submitted new and material evidence concerning the issue of whether he has a headache disability which was incurred in or aggravated by service. See Justus, 3 Vet.App. at 512-513 and Duran, No. 93-338, slip op. at 6. With regard to the veteran's request to reopen the claim, he has repeatedly contended that he experiences severe headaches and that these headaches were caused by the shell fragment wound he sustained to his scalp during service. He also asserts that he has been treated, including with medication, for headaches since his discharge from service. The veteran has submitted private medical records and reports in support of his claim. In an October 1964 medical affidavit, one private physician noted the veteran's history of a head injury with severe headaches and "black outs" since that time. The diagnosis was extreme nervous tension--probably due to injury. In a January 1965 medical affidavit, another private physician noted diagnoses of old head injury and tension state; he further noted vertigo, dizziness, and syncopal attacks, etiology questionable. In July 1965, a private physician concluded that the veteran had probable cerebral angiospasm and psychophysiological tension state. In the May 1970 affidavit, the physician concluded that the veteran had residuals of shrapnel wound of the skull; headaches, probably vascular in nature. Significantly, however, these records do not provide a clear medical opinion associating the veteran's complaints of headaches with the in-service wound he sustained to his scalp. None of these physicians appeared to have had access to the veteran's medical records, and the veteran himself reported at the examinations that incurred a head injury in service and that he has been experiencing headaches ever since the injury. Consequently, the physicians' opinions are based, not on medical evidence, but on the veteran's own statements. The Court has recently reiterated that an examining physician's heavy reliance on a veteran's recitation of his own medical history is a circumstance which makes the doctor's conclusion regarding the etiology of a present disability less persuasive. Cahall v. Brown, No. 93-773, slip op. at 7 (U.S. Vet. App. Dec. 19, 1994). See also Reonal v. Brown, 5 Vet.App. 458, 460 (1993). A review of the early private medical statements in the present case clearly indicates that any association of the veteran's headaches with the in-service "head injury" is based on the veteran's own statements rather than on medical records. Consequently, the Board does not find that these additional private medical records are relevant or raise a reasonable possibility of changing the outcome. The claims file also contains reports of VA examinations conducted in February 1965, September 1967, and July 1970. At the February 1965 VA examination, the examiner expressed his opinion that the headaches which the veteran related to the injury he sustained during service are of a psychogenic type. The examiner diagnosed psychophysiologic musculoskeletal reaction with some anxiety symptoms. This examiner confirmed and continued these results at the September 1967 VA examination. Subsequently, at the July 1970 VA examination, the same examiner explained that the veteran exhibited the same clinical picture as he did at the prior VA examination. The diagnosis given at the July 1970 examination was anxiety neurosis with some passive dependent trends. In addition, the veteran has also submitted records of recent private medical treatment. Significantly, however, these records reflect treatment for conditions unrelated to the veteran's headache disability. Therefore, there is no medical evidence that the veteran currently has a headache disability. Consequently, the additional evidence submitted by the veteran since the RO's February 1964 decision is not relevant and probative and does not raise a reasonable possibility that, when viewed in the context of all of the evidence, both new and old, the additional evidence would change the outcome. Therefore, the additional evidence is not new and material in light of the applicable law, regulations and Court decisions and does not provide the required evidentiary basis to reopen the veteran's claim. The Board notes that the veteran served in combat and that his representative requested consideration of the veteran's claim under 38 C.F.R. § 3.304 (1994). According to the applicable law and regulation, in the case of any veteran who engaged in combat with the enemy in active service . . . during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation or such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1994). The Court has held that the law specifically provides that service connection may be proven by satisfactory lay evidence without the support of official records. Sheets v. Derwinski, 2 Vet.App. 512, 514-515 (1992). In addition, the Court recently explained that lay witnesses are competent to provide testimony that may be sufficient to substantiate a claim of service connection for an injury. Layno v. Brown, 6 Vet.App. 465, 469 (1994). However, competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge. Cartright v. Derwinski, 2 Vet.App. 24 (1991). Evidence that requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, while lay evidence may be sufficient to establish that the veteran experienced headaches in service it is not sufficient to demonstrate that he has a headache disorder which is the result of his forehead injury. In the present case, the evidence considered by the RO at the time of the February 1964 decision, as well as the evidence received after this decision, does not support the veteran's contention that he incurred a headache disability during service. As the Board has previously stated, the evidence considered by the RO at the time of the 1964 decision did not show findings of an organic disability causing the veteran's headaches and did not associate his complaints of headaches with the in-service injury to his forehead. Moreover, the additional evidence submitted by the veteran since the RO's 1964 decision does not provide medical evidence of a present headache disability and does not relate the veteran's complaints of headaches to the in-service injury to his forehead. Therefore, the veteran's contention that he incurred his headaches as a result of the in-service injury to his forehead is not consistent with the circumstances of service and is rebutted by clear and convincing evidence to the contrary. ORDER New and material evidence not having been submitted, a petition to reopen a claim of entitlement to service connection for a headache disability is denied. V. L. JORDAN Member, Board of Veterans' Appeals 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.