Citation Nr: 18132377
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-10 919
DATE:

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion.
2. Entitlement to service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion.	September 6, 2018
ORDER
New and material evidence has been received to reopen a claim of entitlement to service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion; the claim to reopen is granted.
REMANDED
Entitlement to service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion, is remanded.
FINDING OF FACT
In an unappealed September 1992 rating decision, the RO denied service connection for headaches.  A February 2015 letter from Dr. D. D. was not received prior to September 1992 and is neither cumulative nor redundant of the evidence at the time of the September 1992 rating decision and assuming its credibility raises a reasonable possibility of substantiating the claim.
CONCLUSION OF LAW
The September 1992 rating decision denying service connection for headaches is final and the evidence received for service connection subsequent to the rating decision is new and material to reopen service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from April 1968 to April 1970.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  The Board notes that jurisdiction of these matters lies with the RO in Roanoke, Virginia.
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Here, as to the claim of reopening for entitlement to service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.
Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion.
The Veteran contends that he is entitled to service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion.  By way of procedural history, the Veteran’s initial claim for service connection for headaches was denied in a September 1992 rating decision.  In an October 2014 rating decision, the Veteran’s claim to reopen entitlement to service connection for headaches was denied.  In the February 2016 Statement of the Case (SOC), the RO reopened the Veteran’s claim for headaches and denied the claim on its merits.
Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened.  See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)).  See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992).  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim.  If the Board finds that no new and material evidence has been provided, that is where the analysis must end.
Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed.  38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103.  A previously denied claim may be reopened by the submission of new and material evidence.  See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156.  New evidence is defined as evidence not previously submitted to agency decision makers.  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).
The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.  Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold.  Id.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
In a February 2015 letter, Dr. D. D. of Tazewell Family Physicians notes the Veteran "has a history of non-union of the lower jaw" and paralysis of the 5th and 7th cranial nerves and that, because of these, "when the [Veteran] bends over, his jaw locks and he gets a severe headache."  The Board finds that this medical evidence was not previously submitted to VA before the September 1992 rating decision and is therefore “new” evidence.
The Board will now turn to a discussion of whether this new evidence is “material.”  The evidence received subsequent to the September 1992 rating decision is a medical statement asserting the Veteran’s headaches are the result of service-connected disabilities.  The Board finds that, assuming its credibility for purposes of deciding whether to reopen the claim, this medical evidence of record constitutes new and material evidence to reopen the claim for service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion.  This new evidence addresses a requirement of service connection that was previously denied; a nexus linking the Veteran’s claimed disability to his service-connected disabilities.  Therefore, this new evidence is material and the Veteran’s claim for service connection for major depressive disorder is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 
REASONS FOR REMAND
Entitlement to service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion, is remanded.
Having reopened the claim for service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion, the Board notes that VA is required to give due consideration to all pertinent medical evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Medical evidence is considered competent where evidence is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159 (a)(1).  Once the medical opinions are determined credible and competent the Board is tasked with weighing the medical opinions in the file.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).
Here, the Board finds that the February 2015 letter from Dr. D. D., who stated that the Veteran "has a history of non-union of the lower jaw" and paralysis of the 5th and 7th cranial nerves and that, because of these, "when the [Veteran] bends over, his jaw locks and he gets a severe headache", is conclusory in that it does not explain how the doctor arrived at this conclusion and appear to be based upon the Veteran’s reported symptomatology.  As such, the Board finds this opinion to be of no probative value.  
Here, the Board cannot make a fully-informed decision on the issue of service connection for headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion, because no VA examiner has opined whether the Veteran’s claimed headaches are related to his service-connected mandibular osteotomy and Prognathism with malocclusion.
The matter is REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from February 2016 to the Present.
2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headaches, to include as secondary to service-connected mandibular osteotomy and Prognathism with malocclusion.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including mandibular osteotomy and Prognathism with malocclusion.   
The examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.
The examiner must also opine whether it is at least as likely as not (1) proximately due to service-connected mandibular osteotomy and Prognathism with malocclusion, or (2) aggravated beyond its natural progression by service-connected mandibular osteotomy and Prognathism with malocclusion.
All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate).  The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.  
It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records.
3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority.  If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.  
 
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. P. Keeley, Associate Counsel 

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