Citation Nr: 0812888	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  05-31 554	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim for service connection for the residuals of 
multiple cerebral aneurysms (previously characterized as the 
residuals of head trauma), and, if so, whether service 
connection is warranted.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States



ATTORNEY FOR THE BOARD

S. Heneks, Associate Counsel




INTRODUCTION

The veteran served on active duty from February 1967 to 
February 1969.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from a May 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Boise, Idaho, which determined that new and material evidence 
had not been submitted sufficient to reopen the claim on 
appeal.  The claim was subsequently readjudicated by a 
Decision Review Officer (DRO) in an August 2005 statement of 
the case (SOC), which determined that new and material 
evidence had been submitted sufficient to reopen the claim, 
but ultimately denied the claim.  Nevertheless, regardless of 
the RO's actions, the Board must still determine whether new 
and material evidence has been submitted.  See Jackson v. 
Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a 
prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 
237 (1995) (VA failed to comply with its own regulations by 
ignoring issue of whether any new and material evidence had 
been submitted to reopen the veteran's previously and finally 
denied claims).  Thus, the issue on appeal has been 
recharacterized as shown above.  


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained.

2.  In February 2002, the RO denied the claim for service 
connection for the residuals of head trauma.  The veteran was 
notified of that decision, but did not perfect an appeal.

3.  Some of the evidence received since 2002 when considered 
by itself or in connection with evidence previously 
assembled, relates to an unestablished fact necessary to 
substantiate the claim, and raises a reasonable possibility 
of substantiating the claim for service connection for the 
residuals of multiple cerebral aneurysms. 

4.  The residuals of multiple cerebral aneurysms have been 
shown to be causally or etiologically related to the 
veteran's military service.


CONCLUSIONS OF LAW

1.  The February 2002 RO rating decision that denied service 
connection for the residuals of head trauma is final.  
38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. 
§§ 3.160(d), 20.201, 20.302 (2007).

2.  New and material evidence has been received, and the 
claim for service connection for the residuals of multiple 
cerebral aneurysms is reopened. 38 U.S.C.A. §§ 5108, 7105 
(West 2002); 38 C.F.R. § 3.156(a) (2007).

3.  Service connection is warranted for the residuals of 
multiple cerebral aneurysms.  38 U.S.C.A. §§ 1110, 5103, 
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.306 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran and his representative contend that the veteran's 
residuals of multiple cerebral aneurysms had their onset 
during a period of military service.  Because the claim of 
service connection on appeal is being granted, there is no 
need to review whether VA's statutory duties to notify and 
assist are fully satisfied as any error would be non-
prejudicial.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126 (West 2002 & Supp. 2006); see also 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326 (2007).



LAW AND ANALYSIS

In order to reopen a claim which has been denied by a final 
decision, the claimant must present new and material 
evidence.  38 U.S.C.A. § 5108.  For applications filed after 
August 29, 2001, as was the application to reopen the claim 
in this case, new and material evidence means evidence not 
previously submitted to agency decision makers; which 
relates, either by itself or when considered with previous 
evidence of record, to an unestablished fact necessary to 
substantiate the claim; which is 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 
which raises a reasonable possibility of substantiating the 
claim.  38 C.F.R. § 3.156(a).

To reopen a previously disallowed claim, new and material 
evidence must be presented or secured since the last final 
disallowance of the claim on any basis, including on the 
basis that there was no new and material evidence to reopen 
the claim since a prior final disallowance.  See Evans v. 
Brown, 9 Vet. App. 273, 285 (1996).  For purposes of 
reopening a claim, the credibility of newly submitted 
evidence is generally presumed.  See Justus v. Principi, 3 
Vet. App. 510, 513 (1992) (in determining whether evidence is 
new and material, "credibility" of newly presented evidence 
is to be presumed unless evidence is inherently incredible or 
beyond competence of witness).

A February 2002 RO decision denied service connection because 
the evidence did not show that the veteran's condition was 
caused by service.  It was noted that the service medical 
records did not indicate that the veteran suffered a 
concussion during service or that his present problems with 
multiple cerebral aneurysms were otherwise related to 
service.  Because the veteran did not perfect an appeal with 
that decision, it is final and not subject to revision on the 
same factual basis.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 
20.1103.  The veteran, however, now seeks to reopen his 
claim.  As noted, despite the finality of a prior adverse 
decision, a claim will be reopened and the former disposition 
reviewed if new and material evidence is furnished with 
respect to the claim which has been disallowed.  38 U.S.C.A. 
§ 5108; 38 C.F.R. § 3.156(a).

With these considerations, the Board has reviewed the record, 
with particular attention to the additional evidence received 
since the final February 2002 rating decision.  After 
reviewing the record, the Board finds that the additional 
evidence received since the final February 2002 rating 
decision is new and material within the meaning of 38 C.F.R. 
§ 3.156(a).  

The evidence associated with the veteran's claims file 
subsequent to the February 2002 decision includes, but is not 
limited to, a November 2004 private medical opinion from Dr. 
J.J.L., M.D., which opined that the veteran's congenital 
aneurysms were worsened under the circumstances of his 
service in Vietnam.

As noted, the veteran's claim was previously denied because 
there was no evidence to conclude that the veteran's current 
condition arose during service or was the result of any 
incident in service.  In particular, the veteran has now 
provided a private medical opinion relating his cerebral 
aneurysms to his military service.  Obviously, this evidence 
is new in that it was not previously of record.  Moreover, 
this evidence relates to an unestablished fact necessary to 
substantiate his claim.  Further, as its credibility is 
presumed, the private medical opinion raises a reasonable 
possibility of substantiating the claim.  Justus, 3 Vet. App. 
at 513.  For these reasons, the Board finds that the 
additional evidence received since February 2002 warrants a 
reopening of the veteran's claim of service connection for 
the residuals of cerebral aneurysms, as it is new and 
material evidence within the meaning of 38 C.F.R. § 3.156(a).

In conclusion, new and material evidence having been 
received, the claim of entitlement to service connection for 
the residuals of multiple cerebral aneurysms, is reopened.

Service connection for the residuals of multiple cerebral 
aneurysms

Having reopened the veteran's claim, the Board must now 
determine whether the reopened claim of entitlement to 
service connection for the residuals of multiple cerebral 
aneurysms may be granted on the merits, de novo.  

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in the line of duty in the active military, naval, or air 
service.  38 U.S.C.A. § 1110.  That an injury or disease 
occurred in service is not enough; there must be chronic 
disability resulting from that injury or disease.  If there 
is no showing of a resulting chronic condition during 
service, then a showing of continuity of symptomatology after 
service is required to support a finding of chronicity.  38 
C.F.R. § 3.303(b).  Service connection may also be granted 
for any injury or disease diagnosed after discharge, when all 
the evidence, including that pertinent to service, 
establishes that the disease or injury was incurred in 
service.  38 C.F.R. § 3.303(d).

In sum, in order to establish direct service connection for a 
disorder, there must be (1) medical evidence of the current 
disability; (2) medical, or in certain circumstances, lay 
evidence of the in-service incurrence of a disease or injury; 
and (3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability.  
Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing 
Hickson v. West, 12 Vet. App. 247, 253 (1999)).

Every veteran shall be taken to have been in sound condition 
when examined, accepted, and enrolled for service, except as 
to defects, infirmities, or disorders noted at the time of 
the examination, acceptance, and enrollment, or where clear 
and unmistakable evidence demonstrates that the injury or 
disease existed before acceptance and enrollment and was not 
aggravated by such service.  38 U.S.C.A. 
§ 1111.  History provided by the veteran of the preservice 
existence of conditions recorded at the time of the entrance 
examination does not, in itself, constitute a notation of a 
preexisting condition.  38 C.F.R. §§ 3.304(b)(1); Paulson v. 
Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. 
App. 238, 246 (1995).  To rebut the presumption of sound 
condition under section 1111 of the statute for disorders not 
noted on the entrance or enlistment examination, VA must show 
by clear and unmistakable evidence both that the disease or 
injury existed prior to service and that the disease or 
injury was not aggravated by service.  VAOPGCPREC 3-2003 
(July 16, 2003).

Clear and unmistakable evidence is a more formidable 
evidentiary burden than the preponderance of the evidence 
standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) 
(noting that "clear and convincing" burden of proof, while a 
higher standard than a preponderance of the evidence, is a 
lower burden to satisfy than clear and unmistakable 
evidence).  It is an "onerous" evidentiary standard, 
requiring that the no-aggravation result be "undebatable".  
Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky 
v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. 
Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. 
App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in 
part and dissenting in part).  Concerning clear and 
unmistakable evidence that the disease or injury was not 
aggravated by service, the second step necessary to rebut the 
presumption of soundness, a lack of aggravation may be shown 
by establishing that there was no increase in disability 
during service or that any increase in disability was due to 
the natural progress of the preexisting condition.  Wagner v. 
Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 
1153.

A presumption is an assumption of fact resulting from a rule 
of law which requires such fact to be assumed from another 
fact or group of facts found or otherwise established in the 
action.  Black's Law Dictionary 1067 (5th ed. 1979).  
Therefore, where the presumption of sound condition at 
entrance to service cannot be rebutted, the fact for which 
the presumption stands--that is, that the veteran was in 
sound condition at entry to service as to the disability for 
which he seeks service connection--must be assumed as a 
matter of law.  Accordingly, service connection may not be 
granted on the basis of aggravation of a preexisting disease 
or injury in such a case.  Rather, where the government fails 
to rebut the presumption of soundness under section 1111, the 
veteran's claim must be considered one for service incurrence 
or direct service connection.  See Wagner, 370 F.3d at 1094, 
1096 (indicating that, in cases where the presumption of 
soundness cannot be rebutted, the effect is that claims for 
service connection based on aggravation are converted into 
claims for service connection based on service incurrence).

Where a preexisting disease or injury is noted on the 
entrance examination, section 1153 of the statute provides 
that "[a] preexisting injury or disease will be considered to 
have been aggravated by active military, naval, or air 
service, where there is an increase in disability during such 
service, unless there is a specific finding that the increase 
in disability is due to the natural progress of the disease."  
38 U.S.C.A. 
§ 1153; 38 C.F.R. § 3.306(a).  For veterans who served during 
a period of war or after December 31, 1946, clear and 
unmistakable evidence is required to rebut the presumption of 
aggravation where the preservice disability underwent an 
increase in severity during service, and clear and 
unmistakable evidence includes medical facts and principles 
which may be considered to determine whether the increase is 
due to the natural progress of the condition.  38 C.F.R. § 
3.306(b).  Temporary or intermittent flare-ups of symptoms of 
a preexisting condition, alone, do not constitute sufficient 
evidence for a non-combat veteran to show increased 
disability for the purposes of determinations of service 
connection based on aggravation under section 1153 unless the 
underlying condition worsened.  Davis v. Principi, 276 F. 3d 
1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. 
App. 292, 297 (1991).

Aggravation may not be conceded where the disability 
underwent no increase in severity during service on the basis 
of all the evidence of record pertaining to the 
manifestations of the disability prior to, during and 
subsequent to service.  38 C.F.R. § 3.306(b).  The usual 
effects of medical and surgical treatment in service, having 
the effect of ameliorating disease or other conditions 
incurred before enlistment, will not be considered service 
connected unless the disease or injury is otherwise 
aggravated by service.  38 C.F.R. § 3.306(b)(1).

In rendering a decision on appeal, the Board must analyze the 
credibility and probative value of the evidence, account for 
the evidence that it finds to be persuasive or unpersuasive, 
and provide the reasons for its rejection of any material 
evidence favorable to the claimant.  See Gabrielson v. Brown, 
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. 
App. 49, 57 (1990).  Competency of evidence differs from 
weight and credibility.  The former is a legal concept 
determining whether testimony may be heard and considered by 
the trier of fact, while the later is a factual determination 
going to the probative value of the evidence to be made after 
the evidence has been admitted.  See Rucker v. Brown, 10 Vet. 
App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 
(1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 
(1991) ("Although interest may affect the credibility of 
testimony, it does not affect competency to testify.").

In considering all of the evidence of record under the laws 
and regulations as set forth above after reopening the claim, 
the Board concludes that after resolving any reasonable 
doubt, the veteran is entitled to service connection for the 
residuals of multiple cerebral aneurysms.  As an initial 
matter, the Board finds that the veteran is entitled to the 
presumption of soundness.  The veteran's February 1967 
induction examination was negative for findings of cerebral 
aneurysms.  In fact, the veteran's head, scalp, and 
neurologic findings were noted to be clinically normal.  
Therefore, the presumption of soundness attaches and the 
burden to rebut the presumption has shifted to the 
government.  Cotant, 17 Vet. App. 117.

Turning to the first prong of the test to rebut the 
presumption, the Board finds evidence which constitutes clear 
and unmistakable evidence that the veteran's cerebral 
aneurysms existed prior to service.  Letters dated in 
December 2002 and November 2004 from Dr. J.J.L. who treated 
the veteran for his multiple cerebral aneurysms opined that 
his aneurysms were very likely congenital conditions that he 
had prior to his service in Vietnam.  Further, the July 2005 
VA examiner concluded, based on a thorough review of the 
claims file and the veteran, that the veteran's cerebral 
aneurysms were congenital because there were two or more at 
two millimeters present on the Circle of Willis.  

In addition, the veteran appears to concede that his 
aneurysms are congenital.  He argues in his February 2004 
letter that his congenital cerebral aneurysms were aggravated 
during service.  Based on the aforementioned evidence, the 
Board finds that there is clear and unmistakable evidence 
that the veteran had cerebral aneurysms prior to service 
entrance in 1967.  

However, with respect to rebutting the presumption of 
soundness, as noted above, the Board's inquiry does not end 
with a determination that the veteran's claimed disability 
clearly and unmistakably preexisted service.  The Board now 
turns to the second prong and must determine whether there is 
clear and unmistakable evidence that the veteran's pre-
existing disability was not aggravated by service.  To make 
this determination, the Board must consider the veteran's 
service medical records as well as evidence developed after 
service.  After reviewing the record, the Board concludes 
that the medical evidence of record does indicate that the 
veteran's disability underwent an increase in severity beyond 
the natural progression of the disability.  

In this regard, in an October 2001 statement, the veteran 
contended that he received head trauma from a grenade 
explosion that occurred approximately two feet in front of 
him.  The veteran added that he did not receive any treatment 
for head trauma during service.  The Board notes that the 
veteran's service medical records were absent for any 
documentation of a head injury and his neurological results 
were clinically normal on his November 1968 separation 
examination.  

However, if the Board determines that the veteran engaged in 
combat with the enemy, then satisfactory lay or other 
evidence of service incurrence is accepted as conclusive 
evidence of the disease or injury occurrence and no further 
development or corroborative evidence is required, provided 
that such is found to be credible and "consistent with the 
circumstances, conditions or hardships of service."  38 
U.S.C.A. § 1154(b), 38 C.F.R. § 3.304(d).  In this regard, 
the Board notes that the veteran received the Combat 
Infantryman's Badge and the Bronze Star with V Device.  
Additionally, the veteran consistently indicated in his VA 
and private treatment entries that after the grenade 
explosion, he bled from his ears and was dazed following his 
head injury.  As such, the Board concludes that the veteran 
engaged in combat with enemy.  Further, the Board finds that 
experiencing a grenade explosion at close range is consistent 
with the circumstances of the veteran's service.  

Turning to the medical evidence of record, a December 2001 VA 
examination for aid and attendance indicated that the veteran 
was in stable health until December 2000 when cerebral 
aneurysms were discovered.  In December 2002 and November 
2004 letters, Dr. J.J.L., who had been treating the veteran 
for multiple cerebral aneurysms opined on a more probable 
than not basis, that the veteran's congenital aneurysms were 
worsened under the circumstances of high stress and increases 
in blood pressure that the veteran experienced in Vietnam.  
Further, in an April 2005 letter, Dr. J.J.L. added that the 
veteran's aneurysms were a rare condition and were not 
associated with connective tissue diseases.  Moreover, the 
lapse in time between the veteran's service in Vietnam and 
the discovery of the aneurysms in December 2000 was because 
aneurysms have a less than 1 percent chance per year of 
rupturing.  Additionally, the July 2005 VA examiner concluded 
that it would be speculation on his part to comment on 
whether there was an association between the grenade blast 
and stress with increased blood pressure and the enlargement 
of the cerebral artery aneurysms.  

Given that neither examiner stated that it was "clear" or 
"undebatable" (or used terms or phrases connoting a similar 
degree of certainty) that the congenital aneurysms were not 
aggravated in service, the Board cannot conclude that the 
evidence is clear and unmistakable that the veteran's pre-
existing disability was not aggravated by service.  To the 
contrary, Dr. J.J.L.'s opinion indicates the opposite of such 
a conclusion, and the VA examiner concluded only that it 
would be "speculation" on his part to comment on any 
association between the grenade blast and stress with 
increased blood pressure and the enlargement of the cerebral 
artery aneurysms.

Because the Board cannot conclude that there was clear and 
unmistakable evidence that the veteran's pre-existing 
disability was not aggravated by service, the presumption of 
soundness cannot be rebutted.  Consequently, the veteran's 
claim will be considered as one for service incurrence or 
direct service connection.  See Wagner, 370 F.3d at 1094, 
1096.  In this regard, as previously indicated, because the 
veteran was determined to have engaged in combat with the 
enemy, the Board will concede that he was exposed to the 
grenade blast and suffered stress during service.  In a 
November 2004 letter, Dr. J.J.L. concluded that the veteran's 
aneurysms were more probably than not worsened by the stress 
of this event and others and increases in blood pressure at 
those times in service.  Additionally, although the July 2005 
VA examiner concluded that the veteran's cerebral aneurysms 
were not the direct result of the grenade blast, he could not 
opine without resorting to speculation whether there was an 
association between the blast and in-service stress and the 
enlargement of the aneurysms.  As such, the medical evidence 
suggests that the stress of veteran's service in Vietnam was 
etiologically related to the rupture of his pre-existing 
aneurysms.  Based on the foregoing, the Board concludes that 
after resolving all reasonable doubt in favor of the veteran, 
that the residuals of multiple cerebral aneurysms were 
etiologically related to his service.  As such, service 
connection for the residuals of multiple cerebral aneurysms 
must be granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 
Gilbert, 1 Vet. App. at 54.


ORDER

Service connection for the residuals of multiple cerebral 
aneurysms is granted.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs