Citation Nr: 18160361
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-62 091
DATE:	December 26, 2018
ORDER
The application to reopen the previously denied claim of service connection for headaches is denied.
The application to reopen the previously denied claim of service connection for degenerative disc disease (DDD) of the cervical spine is denied.
FINDINGS OF FACT
1. In a July 2008 rating decision, the agency of original jurisdiction (AOJ) denied service connection for headaches; the Veteran did not initiate an appeal of that decision within one year of notification.
2. Evidence received since the July 2008 rating denial is cumulative or redundant of evidence previously of record, and does not relate to unestablished facts necessary to substantiate the claim of service connection for headaches.
3. In a January 2011 rating decision, the AOJ denied service connection for DDD of the cervical spine; the Veteran did not initiate an appeal of that decision within one year of notification.  
4. Evidence received since the January 2011 rating denial is cumulative or redundant of evidence previously of record, and does not relate to unestablished facts necessary to substantiate the claim of service connection for DDD of the cervical spine.
CONCLUSIONS OF LAW
1. The July 2008 rating decision that denied service connection for headaches is final.  38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2017).
2. The criteria for reopening a clam of entitlement to service connection for headaches have not been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).
3. The January 2011 rating decision that denied service connection for DDD of the cervical spine is final.  38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2017).
4. The criteria for reopening a claim of entitlement to service connection for DDD of the cervical spine have not been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1976 to September 1980 and from May 1984 to May 1995.
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).
Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §20.1100 (2017). 
Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights.  38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision.  38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2017). At the time applicable to this appeal, an NOD was defined as a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result.  38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2017).  Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination.  See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017).  If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code.  38 U.S.C. § 7105 (c) (2012). 
The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 
The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). 
New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a).  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. Id.  New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. 
Of note, under 38 C.F.R. § 3.156 (b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). 
In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for headaches.
Prior to filing the current claims, in a July 2008 rating decision the AOJ denied the claim of service connection for headaches on the basis of no nexus to service.  The Veteran was notified of the denial as well as his procedural and appellate rights in a letter dated in August 2008, but he did not appeal nor was new and material evidence received during the applicable time period.  As he did not appeal this rating decision, it became final.  38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103.  New and material evidence is therefore required to reopen the headaches claim.  See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156.
In January 2014 the Veteran submitted a request to reopen his claims of service connection for headaches.  In a June 2014 rating decision, the AOJ denied the request to reopen the claim because the evidence submitted is not new and material.  The Veteran was notified of the denials that same month and timely initiated an appeal of the rating decision.  The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the AOJ granted or denied an application to reopen.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).
The Board acknowledges that service treatment records (STRs) were uploaded after the July 2008 rating decision; however, the rating decision indicates that the Veteran’s STRs were previously considered.  Thus, the Board finds that the STRs were associated with the record prior to the July 2008 rating decision.
Evidence received since the denials consists of medical treatment records, the Veteran’s and other layperson statements.  There is no probative evidence of a nexus to service.
VA medical records continue to list headaches as an active problem.  Notably, the Veteran’s treating physicians have attributed his headache symptoms to his nonservice-connected cervical spine disability.  In March 2012, the Veteran complained of worsening headaches and the physician noted that he suspected the Veteran had occipital neuralgia.  In May 2012, the Veteran complained of occasional headaches.  He indicated that he was not sure how long he has had headaches.  An impression of chronic headaches, most likely cervicogenic despite bilateral nature, was provided.  As the Veteran has not been granted service connection for his DDD of the cervical spine, these opinions do not raise a reasonable possibility of substantiating the headache claim because service connection cannot be granted secondary to a nonservice-connected disability.  38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a).
In March 2013 the Veteran submitted multiple lay statement letters indicating that they have witnessed the Veteran experience extreme headache symptoms on multiple occasions.  In his March 2015 notice of disagreement, the Veteran reported that he sustained  head trauma during service that injured his neck and caused headaches.
At the April 2017 Board hearing, the Veteran testified that he sustained multiple head injuries during service, including loss of consciousness and during combat.  He also testified that he sustained a head injury from being hit with a “back grill door.”  In addition, his spouse testified that he has had headaches since 2001 when they met.  He submitted multiple lay statements from persons that witnessed him having headache symptoms as early as 2000.
The Board finds that some of this evidence is “new” as it has not been previously considered.  However, after review, the Board determines that none of it is “material” to an unestablished fact necessary to support the Veteran’s claim of a nexus to service.  That is, the evidence received since the July 2008 determination does not provide competent and probative evidence to support the Veteran’s contentions that his current headaches disability is caused by service.  The newly added treatment records merely continue to show a current diagnosis of headaches. 
As for the Veteran’s and other lay statements, they are unsupported by the evidence of record.  The Veteran made the same contentions, that he sustained multiple head injuries during service including loss of consciousness, during the prior denial.  There is no indication that the Veteran or other persons have medical expertise. They are thus considered a lay person and not qualified to provide medical opinions on these matters.  Layno v. Brown, 6 Vet. App. 465, 469-470 (1994).   
The Board acknowledges the Veteran’s spouse’s, a nurse, testimony that the Veteran has had headache symptoms since 2001 when they met, however, this testimony does not resolve the question of whether the Veteran’s current headaches disability is related to service since the Veteran separated from service in 1980, approximately 20 years prior to meeting his spouse.  Notably, the spouse does not provide an opinion on whether the Veteran’s current headache disability is related to service, but merely provides testimony on her observations that he had headache symptoms.
Thus, the additional evidence is not new and material. The Board concludes, therefore, that new and material evidence to reopen the claim for service connection for headaches has not been received.  As such, the requirements for reopening the claim are not met.
2. Whether new and material evidence has been received to reopen the previously denied claim of service connection for DDD of the cervical spine.
Historically, in a January 2011 rating decision the AOJ denied the claim of service connection for DDD of the cervical spine on the basis of no nexus to service. The Veteran was notified of the denial as well as his procedural and appellate rights in a letter dated the same month, but he did not appeal nor was new and material evidence received during the applicable time period.  As he did not appeal this rating decision, it became final.  38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103.  New and material evidence is therefore required to reopen the DDD of the cervical spine claim.  See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156.
In January 2014 the Veteran submitted a request to reopen his claim of service connection for DDD of the cervical spine.  In a June 2014 rating decision, the AOJ denied the request to reopen the claim because the evidence submitted is not new and material.  The Veteran was notified of the denials that same month and timely initiated an appeal of the rating decision.  
Evidence received since the January 2011 denial consists of medical records, the Veteran’s and other layperson statements.  There is no probative evidence of a nexus.
VA medical records continue to list a cervical spine disability as an active problem.  In his June 2014 notice of disagreement, the Veteran attributed his current cervical spine disability to a tank injury during service.  He reported that he was hit in the head and knocked unconscious causing a neck condition that never resolved.  At the April 2017 Board hearing, the Veteran testified that he has had continuous neck pain since service.  He reported that in the 1990’s he sought treatment for his condition.  His spouse testified that he has had neck pain since they met in 2001. 
The Board finds that all of this evidence is “new” as it has not been previously considered.  However, after review, the Board determines that none of it is “material” to an unestablished fact necessary to support the Veteran’s claim. The newly added VA records merely continues to show ongoing treatment for his disability and the statements redundant of those previously submitted.  There is no new evidence of a nexus that is competent evidence.  As indicated above, the Veteran is considered a lay person and not qualified to provide a medical opinion on the relationship between his current cervical spine disability and service.
 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Amanda Baker, Associate Counsel 

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