Citation Nr: 0815191 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 05-07 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved. 3. Entitlement to service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from April 1974 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In written argument dated in June 2004, the veteran raised the issue of entitlement to service connection for depression. As this matter is not currently developed or certified for appellate review, it is referred to the RO for appropriate action. The issue of entitlement to service connection for residuals of a back injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied the veteran's claim for service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved, in October 1980. The veteran did not file an appeal. 2. The evidence received subsequent to the October 1980 RO rating decision includes VA Compensation and Pension examinations dated December 2003, April 2004, and November 2004; the examination reports relate to an unestablished fact necessary to substantiate the claim for service connection. 3. Resolving doubt in the veteran's favor, the evidence demonstrates that the veteran has current disability related to the veteran's in service hematoma with contusion and abrasion, left parietal area of the head. CONCLUSIONS OF LAW 1. The October 1980 decision of the RO denying service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104(a) (1990). 2. The evidence received since the October 1980 RO rating decision regarding the claim of entitlement to service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved, is new and material, and the claim of entitlement to service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved, is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). 3. The veteran has current disability, claimed as residuals of a hematoma with contusion and abrasion, left parietal area of the head, which was incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Application to Reopen the Claim of Service Connection for Residuals of a Hematoma With Contusion and Abrasion, Left Parietal Area of the Head, Resolved In an October 1980 rating decision, the RO denied service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved, on the basis that in the absence of continuity of treatment for the injury, the condition was resolved. The evidence of record at the time of the October 1980 rating decision included the veteran's service medical records. The veteran did not file an appeal of the October 1980 rating decision and it became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a), 20.1103. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Board has rephrased the issues on appeal. The veteran's prior claim for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved, was previously denied and he did not appeal. The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. The Board must address the issue initially itself. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In cases such as this, where the claim is filed on or after August 29, 2001, under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Subsequent to the October 1980 rating decision, VA outpatient treatment records dated August 2003 to October 2003 were associated with the claims folder and the veteran was afforded VA C&P examinations in December 2003, April 2004, and November 2004. In the April 2004 VA C&P examination report, the examiner rendered the opinion that the veteran's dysfunction was probably an accumulation of the results of the head injury in service and a subsequent head trauma in 2003. The April 2004 VA C&P examination is new as it did not exist at the time of the prior final determination and material as raises a reasonable possibility of substantiating the veteran's claim for service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved, by associating the veteran's current symptoms with his initial injury in service. New and material evidence having been found, the veteran's claim for service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head, resolved, must be reopened. 38 C.F.R. § 3.156. II. Entitlement to Service Connection for Residuals of a Hematoma With Contusion and Abrasion, Left Parietal Area of the Head The veteran seeks service connection for residuals of a hematoma with contusion and abrasion, left parietal area of the head. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 1137; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As an alternative to establishing the second and third prong in Hickson, the veteran may show a continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007)(citing 38 C.F.R. § 3.303(b) (2006); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997)). Continuity of symptomatology may be established if a veteran can demonstrate (1) the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical, or in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495- 96. The Court of Appeals for Veterans Claims (Court) has held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Court has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's service medical records reveal that the veteran was struck by a van while in service in March 1977. The veteran injured his head, left hip, and left lower extremity. The veteran was diagnosed with a hematoma of the left parietal area of the head with left side contusion and abrasion. The veteran was prescribed Tylenol and heat and returned to duty. The veteran declined a physical examination upon separation from active duty. The veteran filed for service connection for his in service hematoma of the left parietal area of the head with left side contusion and abrasion in May 1980, January 1982, and November 1986. In an August 2003 VA treatment note the veteran complained of headaches, loss of focus, photophobia, nausea, and memory loss and stated that he was struck in the back of the head the prior evening and had developed a stiff neck with shooting pain and dizziness. In December 2003, the veteran was afforded a VA C&P examination. The veteran indicated that he suffered a head injury while in service and since then has had episodes of his eyes losing focus, intermittent headaches, photophobia, memory loss, poor concentration, and depression. Upon examination the veteran was found to be alert and oriented with a slightly depressed affect. The visual fields were full to confrontation. Pupils were equally round and extraoccular movements were full. The veteran's face moved symmetrically and deep tendon reflexes were one to two plus and equal. The veteran's motor exam revealed 5+/5+ strength and cerebellar testing was intact to finger-to-nose testing. The veteran's sensory exam was intact to proprioception and gait was fairly normal. The examiner did not render an opinion regarding the etiology of the veteran's current symptoms. However, the examiner referred the veteran for a neuropsychological test which in December 2003 diagnosed the veteran as having focal right parietal lobe dysfunction, left temporal/frontal dysfunctions, and defensive response bias. In April 2004, the veteran was afforded another VA C&P examination. The veteran reported the same symptomology as in December 2003. Upon examination the veteran had a small defect in the right parietal occipital region from his subdural hematoma drain. He had fairly good range of motion in his neck. The veteran was fairly alert and oriented. His visual fields were full to confrontation and extraoccular movements were full. The veteran's face moved symmetrically and deep tendon reflexes were one to two plus and equal. A motor exam revealed 5+/5+ strength, cerebellar testing was intact, and gait was normal. The examiner, considering the reported continuity of symptomology of the veteran, rendered the opinion that the results of the neuropsychiatric testing were probably an accumulation of the results of both head injuries. In November 2004, at the instruction of the RO, the examiner reviewed the veteran's records as well as his previous two examinations and stated that "there is no documented evidence of any residual problems from his head injury in 1977." The examiner rendered the opinion that all of the veteran's current symptoms occurred likely since September 2003, based on the lack of medical documentation of the reported symptoms until that date. The Board finds that, resolving all reasonable doubt in favor of the veteran, the evidence of record is sufficient to show that the veteran currently has residuals that are related to the hematoma he suffered in service. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303. In April 2004, the VA examiner rendered the opinion that the symptoms currently suffered by the veteran are likely the accumulation of the results of both head injuries. In November 2004, the same VA examiner opined that the veteran's symptoms are related to the head trauma the veteran suffered in 2003, however, the examiner ignored the continuity of symptomatology that had previously been reported by the veteran. Accordingly, the Board assigns greater weight to the opinion that was provided by the examiner in April 2004. The veteran's service medical records note that the veteran suffered a head injury while in March 1977 and the veteran is competent to report and has reported that he has suffered from headaches, loss of focus, photophobia, nausea, and memory loss since service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). He has also sought service connection for the residuals of his in service head injury since service and the veteran's credibility is not called into question by the evidence of record. Accordingly, resolving doubt in favor of the veteran, the positive evidence is at least in a state of equipoise with the negative evidence in regard to whether the veteran's current symptomology is related to his in service head injury and, therefore, the veteran's claim of entitlement to service connection for residuals of hematoma with contusion and abrasion, left parietal area of the head, is warranted. III. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal on the issue of entitlement to service connection for residuals of the veteran's hematoma with contusion and abrasion, left parietal area of the head. 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. ORDER New and material evidence to reopen a claim of service connection for residuals of a hematoma with contusion and abrasion, left parietal area of head, resolved, has been received; to this extent, the appeal is granted. Service connection for residuals of hematoma with contusion and abrasion, left parietal area of head is granted. REMAND The veteran seeks service connection for residuals of a back injury. In November 2003, the veteran was afforded a VA C&P general examination in conjunction with his claim of entitlement to service connection for residuals of a back injury. The veteran reported that he was hit by a motor vehicle in 1977 and that he did not have any back pain at that time. The veteran stated that his back pain began approximately one year after the accident. He indicated that he did not see a physician on a regular basis for his back condition and did not take medicine for back pain. The veteran did not complain of radicular distribution of pain into the legs and he has never had back surgery or incapacitating episodes. Upon examination, the lumbar spine showed some straightening of the lumbar lordosis. The veteran had limited range of motion due to pain. The examiner diagnosed the veteran with residuals of lumbar spine injury; however, the examiner did not render an opinion on whether the veteran's current back condition was related to the veteran's active service. An X-ray of the veteran's spine, performed in November 2003, revealed no evidence of spondylolysis, disc spaces were normally maintained, and there were no fractures. The radiologist rendered the opinion that the veteran's lumbosacral spine was normal. The Board notes that "once the Secretary undertakes the effort to provide an examination when developing a service- connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, as indicated above, the examiner in November 2003 failed to render an opinion on the etiology of the veteran's back condition, therefore, the examination is inadequate. For this reason the claim must be remanded for the veteran to be afforded another VA C&P examination. Accordingly, the case is REMANDED for the following action: 1. Arrange for the veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any back condition found to be present. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. The examiner should comment on the veteran's report regarding the onset and continuity of symptomatology and opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the veteran's back condition is etiologically related to or had its onset during service, and particularly, to the veteran's in service accident in March 1977. The rationale for all opinions expressed should be provided in a report. 2. Thereafter, the RO should readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs