Citation Nr: 1107764 Decision Date: 02/28/11 Archive Date: 03/09/11 DOCKET NO. 07-18 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a head injury (claimed as headaches, seizures, memory loss, neck pain, and fainting/periods of unconsciousness). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran's claim for entitlement to service connection for residuals of a head injury (claimed as headaches, seizures, memory loss, neck pain, and fainting/periods of unconsciousness). In the June 2007 VA Form 9, the Veteran requested a hearing before a member of the Board at the RO. A Travel Board hearing was scheduled for May 24, 2010; however the Veteran failed to attend. The issue of entitlement to service connection for residuals of a head injury on the merits 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. Service connection for residuals of a head injury was previously denied in an unappealed September 2002 rating decision, of which the Veteran was notified that same month. 2. Some of the evidence added to the record since the September 2002 determination relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for residuals of a head injury. CONCLUSIONS OF LAW 1. The September 2002 rating decision, which denied service connection for residuals of a head injury, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010). 2. The evidence received since the September 2002 determination is new and material, and the appellant's claim for service connection for residuals of a head injury is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). In light of the favorable determination with respect to whether new and material evidence has been submitted, and the need to remand for additional information with regard to the merits of the case, no further discussion of VCAA compliance is needed. Analysis The Board has reviewed all of the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). 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, 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. 38 C.F.R. § 3.156(a) (2010). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. The RO originally denied the Veteran's claim for service connection for residuals of a head injury in September 2002 on the basis that the medical evidence did not show that the Veteran sustained a head injury in service and evidence linking his current claimed residuals of head injury listed as headaches, seizures, memory loss, neck pain, and fainting/periods of unconsciousness to service. The Veteran was notified of such determination the same month, but he did not appeal that decision and it became final. See 38 C.F.R. §§ 20.302, 20.1103 (2010). The evidence of record at the time of the September 2002 determination consisted of the Veteran's service treatment records, VA treatment reports, private treatment records, and statements from the Veteran and his spouse. The Veteran contended that he had residuals of a head injury from injuries sustained in a 1981 accident which occurred during a training exercise in Camp Pendleton, California. He related that he was struck in the head with the hatch of the M50 turret of an amphibious assault tracked vehicle. The service treatment records reveal that during the separation examination, the Veteran endorsed a history of head injury and the examiner noted that he had sustained a head injury 2 years prior to that time, with no known sequela. Private treatment records showed that in May 2000, the Veteran was assessed to have had a brief vasovagal faint. VA treatment records indicated that the Veteran was treated for partial seizures which were noted in April 2001 to possibly have a post- traumatic etiology. The evidence received since the September 2002 decision consists of the service personnel records, the reports of VA examinations, additional VA treatment records, additional private treatment reports, and written statements from the Veteran and his spouse. The Veteran was provided with a VA general psychiatry examination in August 2005. After reviewing a history provided by the Veteran and performing a mental status examination, the examiner remarked that the Veteran did sustain memory loss and there were multiple possibilities which could not be pinpointed further based on the available information. The examiner stated that more likely than not, the Veteran had an alcohol-induced dementia, having drank heavily for decades with a history of worsening memory for at least seven years. He also had a seizure disorder either related to a traumatic brain injury or the damage due to alcoholism, or both. The examiner concluded that unless it can be proven that the Veteran had a significant traumatic brain injury with seizures occurring while on active duty, the examiner found it difficult to relate his current complaints to active duty time. The Veteran was also provided with a VA examination in August 2005 for complaints related to the Veteran's alleged 1981 in- service head injury. Upon examination, the examiner noted a scar on the back of the Veteran's head which was 12 by 14 centimeters. The examiner said that the scar was from the Veteran's laceration from his previous head injury in 1981. The diagnoses included headaches and seizures (two grand mals per year and seven mini seizures per day) which the examiner indicated were related to a head injury dated back to 1981. Upon review of the evidence, the Board finds that some of the evidence submitted subsequent to the September 2002 decision relates to a previously unestablished fact, that is, the possible existence of a nexus between the Veteran's current claimed conditions and active service. Further, the additional evidence furnishes a reasonable possibility of substantiating the Veteran's claim for service connection for residuals of a head injury. Thus, the Board finds that new and material evidence has been received and the claim for service connection for residuals of a head injury is reopened. ORDER New and material evidence having been submitted, the claim for service connection for residuals of a head injury (claimed as headaches, seizures, memory loss, neck pain, and fainting/periods of unconsciousness) is reopened, and to this extent only the appeal is granted. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for residuals of a head injury on the merits. The Veteran claims that he has residuals of a head injury from injuries sustained in an in-service accident which occurred between December 1, 1980 and January 31, 1981 during a training exercise at Camp Pendleton, California. He related that he was struck in the head with the hatch of the M50 turret of an amphibious assault tracked vehicle. He has indicated that a Medivac helicopter was dispatched to the scene, but he was not actually transported in it to due the nature of his injuries or the weather. He says that he was treated in the field by a field medic and possibly at the hospital at Camp Pendleton upon his return from the field. The Veteran claims that the accident occurred while he was attached to Bravo Company, 3rd Assault Amphibian Battalion, 1st Marine Division, at Camp Pendleton, California. The service personnel records indicate that the Veteran was assigned to the 3rd Assault Amphibian Battalion, 1st Marine Division, at Camp Pendleton, California. As noted above, the service treatment records reveal that during the separation examination, the Veteran endorsed a history of head injury and the examiner noted that he had sustained a head injury 2 years prior to that time, with no known sequela. However, the Veteran specifically denied experiencing frequent or severe headaches, dizziness, fainting spells, epilepsy or fits, loss of memory, or amnesia. Upon clinical evaluation at that time, the Veteran's head and neurologic system was found to be normal. No scars were identified. The RO submitted a request for information in July 2008, for a search to be conducted of the morning reports of Camp Pendleton, California from July 1, 1980 to January 31, 1981. The request sought remarks about a head injury. The response was that the morning reports do not exist. However, the Board notes that the RO has not requested a search of the morning reports for the Veteran's specific company, Company B, 3rd Assault Amphibian Battalion, 1st Marine Division, at Camp Pendleton, California. On remand, such development should be accomplished. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran reported he had a claim pending with the Social Security Administration. Those records should be requested on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant treatment records from the VA Medical Center in Asheville, North Carolina dating since April 2005. 2. Request that the morning reports of Company B, 3rd Assault Amphibian Battalion, 1st Marine Division, at Camp Pendleton, California, from December 1, 1980 to January 31, 1981 be searched for remarks regarding the Veteran's injury during training with a M50 turret of an amphibious assault tracked vehicle. 3. Obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 4. Schedule the Veteran for a VA neurological examination by a neurologist to obtain an opinion as to the likelihood that the Veteran's claimed residuals of a head injury (claimed as headaches, seizures, memory loss, neck pain, and fainting/periods of unconsciousness) are related to active service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should provide a diagnosis for any current residuals of a head injury identified. Additionally, the examiner should indicate whether it is more likely, less likely, or at least as likely as not (50 percent probability) that any current residuals of a head injury identified are related to the Veteran's active military service, to include the head injury that allegedly occurred therein. The examiner should discuss the separation examination and report of medical history wherein it was noted a head injury occurred 2 years previously with no known sequel and wherein the Veteran denied experiencing frequent or severe headaches, dizziness, fainting spells, epilepsy or fits, loss of memory, or amnesia. The rationale for any opinion expressed should be set forth. 5. Following the completion of the above, the RO/AMC should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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. 2009). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs