Citation Nr: 1324202 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 13-11 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for cervical sprain (residuals of a neck injury). 2. Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1945 to July 1946. These matters are before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida (that denied service connection for a right ear drum perforation, head injury, hearing loss, and tinnitus, and declined to reopen a claim of service connection for sprained cervical muscle, claimed as a neck injury). The Veteran perfected appeals only as to the claims of service connection for hearing loss, tinnitus and residuals of a head injury, and the petition to reopen a claim of service connection for cervical muscle sprain, claimed as a neck injury. An interim (March 2013) rating decision granted service connection for hearing loss and tinnitus. As this represents a full grant of the benefits sought as to such claims, they are no longer on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An unappealed August 1946 rating decision denied service connection for a cervical muscle sprain essentially because there was no evidence of residual disability from such injury in service. 2. Evidence received since the August 1946 rating decision does not tend to show that the Veteran has any residuals of a neck injury/sprained cervical muscle in service; does not relate to the unestablished fact necessary to substantiate the claim of service connection for residuals of a neck injury; and does not raise a reasonable possibility of substantiating such claim. 3. The Veteran is not shown to have sustained a head injury in service or to have disability that may be a residual of such injury. CONCLUSIONS OF LAW 1. New and material evidence has not been received and the claim of service connection for residuals of a neck injury/cervical muscle sprain may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Service connection for residuals of a head injury is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the claim of service connection for residuals of a head injury, a September 2011 letter advised the Veteran of the evidence necessary to substantiate the claim; the evidence VA was responsible for providing; and the evidence he was responsible for providing, also informed him of disability rating and effective date criteria. Regarding the claim to reopen the claim of service connection for residuals of a neck injury, the September 2011 letter advised the Veteran of the evidence and information necessary to reopen a claim, the definition of new and material evidence, and of what type of evidence and information is necessary to establish entitlement to the underlying claim of service connection. That letter also informed the Veteran of the basis for the previous denial of his claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's service treatment records (STRs) are associated with his claims file, and postservice medical reports have been secured. He has not identified any pertinent evidence that is outstanding. The RO did not seek a VA examination with respect to the claim of service connection for residuals of a head injury. As there is no credible evidence of a head injury in service and no competent evidence showing (or suggesting) the Veteran has a disability that may be associated with a head injury, even the low threshold standard (for when a VA examination/medical opinion is necessary) endorsed by the United States Court of Appeals for Veterans Claims (Court) in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) is not met. As to the claim to reopen, VA's duty to assist by arranging for an examination or medical opinion does not attach in such claim unless the claim is reopened. 38 C.F.R. § 3.159(c). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. New and Material Evidence Historically, an August 1946 rating decision denied the Veteran's claim seeking service connection for cervical muscle sprain based on a finding that there were no residuals of such injury (i.e., no residuals of a sprained cervical muscle were found on examination when he was discharged from service). The Veteran did not appeal that decision or submit new and material evidence within a year following, and it became final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New and material evidence" is defined in 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Evidence of record at the time of the August 1946 rating decision included the Veteran's STRs, which show that, on March 14, 1946 he was found to have a right cervical muscle sprain. He related that four day earlier while diving at the Navy pool at Coco Solo he felt his neck make a cracking noise. He continued to swim for a while longer and later that day his neck began to get stiff. He was up and about and swam each day until the pain and soreness increased and he went to the dispensary. It was noted that he did not strike any solid object in the dive. On examination, there was slight limitation of (cervical) motion; there were no tender areas in the neck. On follow-up visit, two days later, there was no limitation of motion of the neck. It was noted that his "Neck feels good." On March 20, he was discharged to duty. His July 1946 service discharge examination report notes a history of muscular strain (March 1946), no abnormalities of the neck, and a normal spine. Evidence received since the August 1946 rating decision consists of October 1965 and January 1966 VA (general) examination reports (also reports of examination for specific disorders, not of the neck) that are silent for any complaints or findings related to the neck/ cervical muscles. Written statements by the Veteran, received in evidence since the August 1946 rating decision, reiterated his account of the incident in service and his complaints of neck pain since. As the Veteran's claim of service connection for residuals of a neck injury/cervical muscle sprain was previously denied based on a finding that such disability was not shown, for additional evidence received since the August 1946 rating decision to be new and material, it must be evidence not previously of record that shows or suggests he has residual disability from the injury in service. The VA examination reports and the Veteran's written statements are new, as they were not previously of record. However, they do not show that the Veteran has any residuals of a neck injury in service. No additional evidence received shows a diagnosis of a neck disability or residuals from an injury in service or treatment or clinical findings of symptoms of such disability. The Veteran does not identify any provider who has seen him for (or noted) neck complaints. The general examination reports do not identify a neck disability. In light of the foregoing, the Board finds that new and material evidence has not been received, and that the claim of service connection for residuals of a neck injury/ cervical muscle sprain may not be reopened. Even the low threshold standard for reopening, endorsed by the Court in Shade v, Shinseki, 24 Vet. App. 110 (2010), is not met. Residuals of a Head Injury The Veteran seeks service connection for residuals of a head injury. He claims he sustained such injury in service. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303 . Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) . In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) . The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis related to a head injury. On July 1946 service separation examination, his head and face were reported to be normal. Postservice, October 1965 and January 1966 VA (general) medical examinations are silent for any complaints, findings, or diagnosis related to a head injury. On a VA examination (for another disability) in April 2010 it was noted on examination that the head was "atraumatic and normocephalic." In an August 2011 statement, the Veteran related that he had a six-day stay at a Navy hospital in the Canal Zone (Coco Solo, Panama) for treatment of a head and spine injury in March 1946. In an October 2012 statement, he stated that after diving into a pool on base he struck his head against the underwater wall of the pool. He noted that the service medical history report was incorrect in reporting that he did not strike any solid object in the dive. He stated that he distinctly remembers his head striking the pool wall as he came out of the dive. In an April 2013 statement he reiterated that although the hospital record of his care at the naval hospital in Coco Solo, Panama indicates that there was no contact with a pool wall resulting in injury, such notation is incorrect. A threshold requirement that must be met in order to substantiate a claim for service connection is that there must be competent evidence of the claimed disability (on or after the date of application for service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321(2007)). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there is no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225(1992). Here, there is no clinical notation of any residuals of a head disability/residuals of a head injury. On 2010 VA examination the head was described as "atraumatic" and normal. The Veteran has not presented any medical evidence to the contrary. While certain types of head injury residuals (e.g., deformities, scars, etc.), are capable of lay observation, the Veteran does not point to any such residuals. As to any insidious process he may be seeking to have service connected as a head injury residual, competent medical question is required for a diagnosis and an etiology opinion (as those would be medical questions). See Jandeeau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is a layperson, and does not cite to any supporting clinical data or medical opinion. In the absence of competent evidence that he has any residuals of a head injury, he has not presented a valid claim of service connection for such disability. See Brammer, 3 Vet. App. at 225. Also significant is that there is no credible evidence that the Veteran sustained a head injury in service. The Veteran's recent allegations of such injury are not credible. They are self-serving; the allegation of a head injury in service was first made in connection with his claim seeking compensation (more than 60 years after service). Furthermore, contemporaneous clinical records that should support the Veteran's accounts instead contradict them. When the notation was made in service that the Veteran's head did not strike a hard object when he dove in the water and sustained a neck strain, the information was elicited for clinical (treatment) purposes (i.e., to ascertain whether closer evaluation/observation for head trauma injury was necessary). Clinical data recorded in such circumstances merit very substantial probative value, certainly greater than remote (more than 60 years later) recollections. The long postservice interval with no symptoms or pathology attributed to a head injury is of itself evidence against the Veteran's claim. With no credible evidence that the Veteran sustained a head injury in service, and with no competent evidence that he has disability that might be a residual of such injury, the preponderance of the evidence is against this claim. Accordingly, it must be denied. ORDER The appeal to reopen a claim of service connection for residuals of a neck injury/ cervical sprain is denied. Service connection for residuals of a head injury is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs