Citation Nr: 0813576 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-04 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES Whether new and material evidence has been received which is sufficient to reopen a previously denied claim of entitlement to service connection for closed head injury residuals. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul Minnesota. Procedural history The veteran served on active duty in the United States Navy from March 1972 to February 1975. The veteran was initially denied service connection for a disability denominated as closed head injury with multiple deficits via an October 2004 RO rating decision. The veteran was properly notified of this decision and his appeal rights in a November 2, 2004 letter from the RO. He did not file an appeal. In May 2006, the veteran filed a request to reopen his previously-denied claim of entitlement to service connection for a closed head injury with multiple deficits. The RO denied this claim in the above-mentioned August 2006 rating decision on the ground that new and material evidence had not been submitted. The veteran duly perfected an appeal. In November 2007, the veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the veteran's VA claims folder. As set forth in more detail below, the veteran's claim of entitlement to service connection for a closed head injury with multiple deficits is being reopened due to the receipt of evidence which is deemed to be new and material. The issue is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In October 2004 the RO denied the veteran's claim of entitlement to service connection for closed head injury residuals. A timely appeal as to that issue was not perfected. 2. The evidence associated with the claims folder subsequent to the RO's October 2004 rating decision is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's October 2004 decision denying the claim of entitlement to service connection for closed head injury residuals is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. Since the October 2004 RO decision, new and material evidence has been received which serves to reopen the claim of entitlement to service connection for closed head injury residuals. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran ultimately seeks entitlement to service connection for closed head injury residuals, to include headaches and cognitive impairment. Implicit in his presentation is the contention that he has submitted new and material evidence which is sufficient to reopen his claim, which was denied by the RO in an October 2004 decision. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. In addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (the Court) specifically addressed VCAA notice requirements in the context of a veteran's request to reopen a previously and finally denied claim. The Court found that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must provide notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. After careful review, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal. The Board observes that the veteran was informed of the relevant law and regulations pertaining to his claim in a letter from the RO dated June 5, 2006, which specifically detailed the evidentiary requirements required to reopen a previously-denied service connection claim, along with the evidentiary requirements for service connection. The June 2006 VCAA letter informed the veteran that his previous claim of entitlement to service connection for a closed head injury with multiple deficits was denied and that this decision was final. He was informed that in order for VA to reconsider this issue, he must submit "new and material evidence." Specifically, he was advised that new evidence consists of evidence in existence that has been "submitted to the VA for the first time." Material evidence was explained as evidence that pertains to the reason your claim was previously denied. The June 2006 VCAA letter further informed the veteran that: "New and material evidence must raise a reasonable possibility of substantiating your claim. The evidence cannot simply be repetitive or cumulative of the evidence we had when we previously decided your claim." The language used in the June 2006 letter substantially follows the regulatory language of 38 C.F.R. § 3.156. The Board further notes that the veteran was provided with specific notice as to why his claim was denied and what evidence would be material to his claim in the last final denial of record. Specifically, the RO informed the veteran: "Your claim was previously denied because there was no evidence of current residuals of injury. Therefore, the evidence you submit must relate to this fact." As such, the veteran was advised of the bases for the previous denial and what evidence would be necessary to reopen the claim. See Kent, supra. Crucially, the RO informed the veteran in June 2006 that VA would assist him with obtaining "relevant records from any Federal agency. This may include records from the military, VA medical Centers (including private facilities where VA authorized treatment), or from the Social Security Administration." With respect to private treatment records, the letter informed the veteran that the VA would make reasonable efforts to obtain private or non-Federal medical records to include "records from State or local government, private doctors and hospitals, or current or former employers." Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the veteran could complete to release private medical records to the VA. The June 2006 letter further emphasized: "If [there is] evidence [that] is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the original] The Board notes that the June 2006 letter specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." This complies with the "give us everything you've got" provision contained in 38 C.F.R. § 3.159(b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Finally, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in the above-referenced June 2006 letter which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the June 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, the VCAA appears to have left intact the requirement that an appellant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2002). Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. As noted in the Introduction, the veteran and his representative appeared before the undersigned VLJ and presented personal testimony in support of his claim by means of video teleconferencing equipment in November 2007. Accordingly, the Board will proceed to a decision. Pertinent law and regulations Service connection - in general A disability may be service connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2007). Finality/new and material evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that the definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present the reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2007)]. This change in the law pertains only to claims filed on or after August 29, 2001. Because the veteran's claim to reopen was initiated in May 2006, the claim will be adjudicated by applying the revised section 3.156. The revised regulation provides that new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, related to an unsubstantiated 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. See 38 C.F.R. § 3.156(a) (2007). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). There must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Factual background The "old" evidence At the time of the October 2004 RO decision, the evidence of record included the veteran's service medical records. Those records indicate, in pertinent part, that the veteran was hospitalized for a concussion in 1973. Following this hospitalization, the veteran was treated in service for headaches on two separate occasions. During his January 1975 separation examination the veteran indicated that he was in good health and denied having frequent or severe headaches. The examining physician noted that the veteran had a fractured skull in 1973 but had "no problems since." Post-service medical records indicate that the veteran was treated for a head injury in May 1993 following an assault. After this second head injury, the veteran began complaining of headaches and short term memory loss. He was diagnosed with post-concussive syndrome by G.S., M.D. in June 1993. The October 2004 rating decision The October 2004 RO decision denied service connection for closed head injury residuals with multiple deficits based on the lack of medical evidence establishing that a medical nexus existed between the veteran's diagnosed post-concussive syndrome and his military service [Hickson element (3)]. The veteran was informed of that decision in a November 2, 2004 letter from the RO. He did not initiate an appeal. In May 2006, the veteran requested that his previously denied claim be reopened. Additional evidence received since the October 2004 decision will be referred to below. Analysis The unappealed October 2004 RO rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2007). As explained above, the veteran's claim of entitlement to service connection for a closed head injury may only be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally received (i.e., after October 2004) evidence raises a reasonable possibility of substantiating the veteran's claim. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. In this case, the evidence of record in October 2004 included a diagnosis of post-concussive syndrome as well as medical evidence of an in-service concussion with subsequent complaints of headaches. [Hickson elements (1) and (2).] The veteran's claims were denied by the RO in 2004 because element (3), nexus, was missing. The evidence associated with the veteran's claims file since October 2004 includes VA outpatient treatment records from April 2006 to June 2006, a July 2006 VA examination report and the November 2007 hearing transcript. The recently added VA outpatient treatment records, while new in the sense that they were not previously associated with the claims file, are not new in the sense that no new information was furnished. The fact that the veteran has been diagnosed with post-concussive syndrome was previously before the RO. These records are cumulative in nature and cannot be used to reopen the veteran's claim. During the November 2007 hearing the veteran testified that he developed migraine headaches and memory problems following his in-service 1973 head injury. He further alleged that these conditions have continued to the present day. See November 2007 hearing transcript, page 7, 16. The Board will assume that the veteran is competent to testify to the existence of headaches and memory loss after his in-service injury, ad that such testimony is credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); see also Justus, supra. In addition, the July 2006 VA examiner indicated that the veteran has experienced continuous post-concussive headaches following his March 1973 injury. The examiner stated that these post-service headaches were "mild to moderate in nature" but were "were worsened after his second head trauma in 1993." The examiner concluded that the post- concussive headaches the veteran currently experiences "are in part related to the concussion which occurred in service in March 1973." Although this opinion appears to rely on the veteran's own statements rather than on any clinical findings, it too is presumed to be credible. After having carefully considered the matter, the Board believes that the above-mentioned November 2007 testimony and July 2006 VA examination report constitutes new and material evidence which serves to reopen the claim. In particular, the veteran and the VA examiner both describe symptoms that had their onset in military service and continued to the present. This new evidence relates to an unestablished fact necessary to substantiate the claim [i.e., and continuity of symptomatology] and presents a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2007). Conclusion For reasons stated above, the Board concludes that the claim of entitlement to service connection for a closed head injury with multiple deficits is reopened. The claim is being remanded for additional evidentiary developments explained in greater detail below. Additional comment The Board wishes to make it clear that although there may be of record new and material evidence sufficient to reopen the veteran's claim, this does not mean that the claim must be allowed based on such evidence. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. In particular, the standard of review changes at this point. As was alluded to in the VCAA discussion above, VA's statutory duty to assist the veteran in the development of his claim attaches at this juncture. In particular, the Justus presumption of credibility no longer attaches. For the reasons explained in the remand section below, the Board finds that additional development is necessary before it may proceed to a decision on the merits of the reopened migraine headache claim. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for closed head injury residuals is reopened. To that extent only, the appeal is allowed. REMAND For reasons stated immediately below, the Board finds that this case must be remanded to the agency of original jurisdiction. Social Security records The evidence of record indicates that the veteran is currently receiving Social Security Administration (SSA) Benefits. Medical records associated with any such decision may shed light on the nature of the veteran's claimed disability, in particular any problems the veteran was experiencing after service and prior to 1993. An effort should therefore be made to obtain such records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) [VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits]. Medical opinion As described above, there is now of record evidence, in the form of the July 2006 VA examination report, which suggests the veteran developed chronic post-concussive headaches after his in-service head injury. This report, while sufficient to reopen the claim, is not sufficient to allow the claim. The July 2006 VA examiner stated that the veteran's current postconcussive headaches are in part related to the concussion which occurred while in service. Based on a review of the VA examiner's report, as well as the medical evidence contained in the veteran's claims folder, it is clear that this opinion is premised on statements made by the veteran. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ["a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"]. In Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), the Court reaffirmed that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate. The Board may not, however, disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. In this case, while the VA examiner's opinion was based on the history provided by the veteran, he did not adequately explain the almost twenty year gap between the veteran's separation from service and his first post-service complaint of headaches, coincident with the 1993 intercurrent injury. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Furthermore, the medical evidence indicates that the veteran has had an extended history of polysubstance abuse and psychiatric issues such as depression and schizoaffective disorder, bipolar type. Additional treatment records indicate that the veteran has been suspected of malingering on at least one occasion. See a November 4, 2001 VA treatment record; see also a December 16, 2002 VA treatment record. The impact these problems may or may not have had on the veteran's claims was not addressed by the July 2006 VA examiner. This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions concern whether any current symptoms such as headaches and cognitive deficits are related to the veteran's in-service head injury, or are due to the 1993 post-service head injury as well as post-service substance abuse and psychiatric problems.. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2007) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should contact SSA for the purpose of obtaining any records from that agency that pertain to the veteran's claim. Any records so obtained should be associated with the veteran's VA claims folder. Any notice from SSA that these records are not available should be noted in the veteran's claims folder. 2. VBA should then arrange for a physician with appropriate experience to review the veteran's VA claims folder and provide an opinion, with supporting rationale, as to whether the veteran's currently diagnosed post-concussive syndrome is related to his in-service head injury. The examiner should specifically comment on the impact, if any, of the 1993 assault and the veteran's history of polysubstance abuse and psychiatric problems on his claimed headaches and memory deficits. If the reviewing physician deems it to be necessary, physical and/or psychological examination or diagnostic testing of the veteran may be scheduled. The resulting medical opinion should be associated with the veteran's VA claims folder. 3. After the development requested above has been completed to the extent possible, and after undertaking any additional development it deems necessary, VBA should then readjudicate the issue of entitlement to service connection for closed head injury residuals. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs