Citation Nr: 1323843 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-19 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1, 1971, to March 10, 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In that decision, it was determined that new and material evidence had not been received to reopen the previously denied claim of service connection for residuals of a head injury. The Veteran appealed, and the RO denied the claim again in an August 2009 rating decision. A previously decided claim may not be reopened in the absence of new and material evidence. Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)) (2012). Regardless of RO action, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. Id. The Board's discussion can be found below. A videoconference hearing was held in March 2011 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The Veteran's claim for service connection for residuals of a head injury was denied in an unappealed April 1983 rating decision as the evidence of record did not establish an inservice head disorder. 2. Evidence submitted since the April 1983 rating decision does not include information pertaining to a fact necessary to substantiate the claim, the absence of which was the basis of the previous denial. CONCLUSIONS OF LAW 1. The April 1983 rating decision which denied service connection for residuals of a head injury is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.105(a) (2012). 2. Evidence received since the April 1983 rating decision, which denied service connection for residuals of a head injury, is not new and material. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in August 2008, November 2008, January 2009, April 2009, September 2009, and March 2010) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claim. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the August 2008 and November 2008 letters mentioned above. Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a Claimant of the evidence and information that is necessary to reopen the claim and VA must notify the Claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the present case, the Veteran has been notified of the evidence and information necessary to reopen the claim and to establish entitlement to the underlying claim for benefit sought in the August 2008 and November 2008 letters mentioned above. The appellant was afforded the opportunity to testify before the Board in March 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the undersigned essentially elicited testimony necessary to determine the nature of the appellant's claim regarding his head injury residuals. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the DRO and the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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) (2012). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff had, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2012). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Petition to Reopen Criteria A decision of the RO becomes final if a notice of disagreement (NOD) is not received within one year of the notice of that decision. 38 U.S.C.A. § 7105 (2012). A finally adjudicated claim will be reopened if new and material evidence is received. 38 U.S.C.A. § 5108 (2012). In deciding whether new and material evidence has been submitted VA looks to the evidence received since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). 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) (2012). The newly presented evidence is presumed to be credible for purposes of determining whether or not it is new and material. Savage v. Grober, 10 Vet. App. 488, 495-497 (1997). If VA either receives or associates with a claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim at any time after VA issues a decision on a claim, VA will reconsider the claim. These official service department records include service records that are related to a claimed inservice event, injury or disease, regardless of whether such records mention a veteran by name. 38 C.F.R. § 3.156(i) (2012). Residuals of a Head Injury An April 1983 rating decision denied the Veteran's claim for service connection for residuals of a head injury as the evidence of record did not establish an inservice head injury with associated residuals. No such injury was reported, to include upon separation examination in January 1971. A NOD was not received within one year of notification of this rating decision, thus rendering it "final" under 38 U.S.C.A. § 7105(c) (2012). There were no submissions within one year of this rating decision which would warrant consideration under 38 C.F.R. § 3.156(b) (2012). Evidence considered in the April 1983 rating decision included the Veteran's STRs which were negative for report of, treatment for, or diagnosis of a head injury. Also considered were private treatment records dated in 1979 and 1980 which showed that the Veteran was struck in the back and head with a log in a post service accident. While he had various complaints associated with this injury no chronic head injury was diagnosed. The claim was denied in April 1983 in that no head condition was noted during service or thereafter. As such, evidence establishing such an injury during service with resulting chronic head disorder is required to reopen the claim. In addition, it is pointed out that to the extent that the Veteran has claimed that his current psychiatric disorder/brain disease (see, e.g., hearing transcript at pg. 3) is due to inservice trauma, the Board notes that this claim for schizophrenia, paranoid type, was separately denied in an April 2010 rating decision. After review of the documents submitted since the previous denial in April 1983, it is concluded by the Board that no new and material evidence has been received. The newly submitted private and VA treatment records (dated through 2012) document current monitoring for various conditions, primarily a psychiatric disorder (schizophrenia), but they do not contain references to the claimed inservice head injury or reflect diagnosis of a chronic head disorder as a residual of an alleged inservice injury. At the 2011 hearing, the Veteran provided testimony in support of his claim. He alleged inservice head injury when barrels rolled off a truck causing him to hit his head in the steel bed of a dump truck. (Hrg. tr. at pg. 4.) He recalled being treated for his injuries during service (tr. at pg. 5) and reported that current symptoms include pain, "draining," "running," and a "yellow infection." (Tr. at pg. 7.) As none of the additional evidence receive since the April 1983 denial establishes an inservice occurrence of a head injury, and the absence of such evidence was the basis for the prior denial, new and material evidence has not been received. Moreover, the evidence does not establish that the Veteran suffers from a head injury residual. The claim is therefore not reopened, and the appeal must be denied. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). ORDER New and material evidence having not been received, the claim for service connection for residuals of a head injury is not reopened. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs