Citation Nr: 1233247 Decision Date: 09/25/12 Archive Date: 10/01/12 DOCKET NO. 98-00 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a neurologic disability, to include central auditory processing disorder (CAPD) and to include as due to traumatic brain injury (TBI). 2. Entitlement to a total disability rating due to individual unemployability resulting from service connected disability (TDIU). REPRESENTATION Appellant represented by: Michael Freske, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2001 and December 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in pertinent part, denied entitlement to TDIU and reopened but denied the Veteran's claim for a CAPD as the result of TBI. The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for CAPD as encompassing entitlement to service connection for a neurologic disability, to include CAPD and to include as the result of TBI, regardless of the precise diagnosis. The Veteran provided testimony during a videoconference hearing before the undersigned Acting Veterans Law Judge in May 2011. A transcript is of record. The claim was remanded by the Board in May 2011 and March 2012 for additional development. In March 2012, the Board remanded the claim so that a statement of the case (SOC) could be issued regarding the issue of entitlement to service connection for CAPD. The SOC was issued in June 2012. The Veteran perfected the appeal with a July 2009 statement. 38 C.F.R. §§ 20.200, 20.202 (2011) (an appeal consists of a timely filed notice of disagreement in writing and after a statement of the case is issued, a timely filed substantive appeal). Therefore, the Board maintains jurisdiction over the claim. The issue of entitlement to service connection for CAPD was originally denied in an August 2003 rating decision. As discussed below, new and material evidence was received within one year of the August 2003 decision and, therefore, it never became final. 38 C.F.R. § 3.156(b) (2011). Therefore, the issue will be considered herein on the merits. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c) (2011)). The issue has been changed on the title page to reflect this development. In the December 2011 rating decision, the RO concluded that the August 2003 rating decision had become final, found that new and material evidence had been submitted, and denied the reopened claim for service connection for CAPD. As the merits of the claim were considered in the first instance by the RO, the Veteran is not prejudiced by its consideration herein. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Generally, if a notice of disagreement is not received within one year of the notice of an RO decision, and no new and material evidence is received during that period; the decision will become final. 38 U.S.C.A. § 7105(b)-(c) (West 2002). However, if new and material evidence is received within the remainder of the appeal period after a decision, the evidence will be considered as having been received in conjunction with that decision. 38 C.F.R. § 3.156(b) (2011). VA is required to determine whether evidence received during the appeal period is new and material. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). If new and material evidence is found during this period, the decision does not become final. Id. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection for CAPD was denied in an August 2003 rating decision, in part, on the basis that the evidence did not demonstrate a current disability. The Veteran did not submit a notice of disagreement within one year. However, an August 2003 VA medical center (VAMC) record contains an MRI report that included the impression of mild parenchymal volume loss with scattered probable microvascular changes in the white matter. This evidence is new in that it was not previously of record. It is material as it pertains to the basis for the prior denial, specifically the absence of a current disability, and raises a reasonable possibility of substantiating the claim. Therefore, the August 2003 decision on the claim did not become final and the claim must be considered herein on the basis of the merits of the case. 38 U.S.C.A. 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103; cf. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c)). The Veteran received a VA examination in May 2012 regarding his claim for service connection for CAPD. The VA examiner found that the Veteran did not carry the diagnosis based on a variety of reasons and further found that the Veteran did not have a central nervous system disability. However, the examiner did not address a December 2010 auditory brainstem response test which indicated right greater than left brainstem central auditory conduction delays mainly between distal VIIIth cranial nerve and lower pons or a February 2011 VAMC treatment record which noted the abnormal findings and stated that the etiology was unclear. In addition, the February 2011 VAMC treatment record included the impression of chronic microvascular ischemic disease in the cerebral white matter. The examiner did not address this disability and whether it is etiologically related to the Veteran's reported in-service noise exposure. As this disability was diagnosed during the pendency of the claim, such an opinion must be obtained. The Court has held that an examination is inadequate where the examiner formulates an opinion without considering the Veteran's statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, an examination is inadequate where the examiner does not review the medical history and provide a factually accurate rationale for the opinions provided in the examination report. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008). Upon remand, the Board requests that a VA examiner discuss whether any currently present neurologic symptoms or disability, including that noted during the December 2010 auditory brainstem response test and the February 2011 VAMC treatment record, is etiologically related to the Veteran's reported in-service noise exposure. The examiner is specifically requested to discuss those findings in rendering the requested opinion. The Veteran's TDIU claim is "inextricably intertwined" with the claim for service connection for CAPD and therefore the CAPD claim must be decided prior to the adjudication of the Veteran's TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA neurologic examination with an appropriately qualified physician to determine whether any current neurologic disability is related to military service. The examiner must review the claims folder and note such review in an examination report or addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current neurologic disability, including that noted in the December 2010 auditory brainstem response test and the February 2011 VAMC record, had onset in service or is otherwise related to a disease or injury in service. If a TBI is diagnosed, the examiner must set forth the in-service incident found to be the cause of the disability. The examiner should provide a rationale for each of the opinions that takes into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 2. The agency of original jurisdiction should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 3. After completion of all requested and necessary development, the RO should review the record in light of the new evidence obtained and readjudicate each issue on appeal. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise him that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2011). 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 2002 & Supp. 2011). _________________________________________________ G. A. WASIK Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).