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