Citation Nr: 1328602 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-08 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for residuals of a head injury. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from February 1973 to September 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran now resides in Texas, so the matter is now handled by the RO in Houston, Texas. FINDINGS OF FACT 1. A claim for service connection for laceration of the scalp, claimed as a head condition, was denied in a rating decision in December 2004, and the Veteran did not perfect an appeal. 2. The evidence submitted since the December 2004 rating decision, pertinent to the claim for service connection for residuals of a head injury, is cumulative and redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2004 rating decision that denied service connection for laceration of the scalp, claimed as a head condition, is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002). 2. Evidence received since the December 2004 rating decision is not new and material, and the Veteran's claim for service connection for residuals of a head injury is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. A letter sent to the Veteran in February 2008 advised the Veteran of the evidence necessary to substantiate the claim for service connection, including the type of evidence required to reopen his previously denied claim, advised of his respective duties, and asked the Veteran to submit information and/or evidence to the RO. The content of this notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and Kent v. Nicholson, 20 Vet. App. 1 (2006). To fulfill Dingess requirements, in February 2008, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. §5103(a) and 38 C.F.R. §3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment records and pertinent treatment records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims folder, as are post-service VA and private records. Virtual VA records have been reviewed. The Veteran was afforded a VA examination in January 2013. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Whether New and Material Evidence Has Been Received to Reopen a Previously Denied Claim for Entitlement to Service Connection for Residuals of a Head Injury The Veteran seeks to reopen his claim for entitlement to service connection for residuals of a head injury. Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record reflects that a claim for entitlement to service connection for a laceration to the scalp, claimed as a head condition, was denied by a December 2004 rating decision, at which time the RO found that there was no evidence of a current disability. The Veteran was notified of his right to appeal that decision in December 2004. The Veteran did not file a timely notice of disagreement with that rating decision and accordingly, the December 2004 rating decision became final when the Veteran did not perfect his appeal within the statutory time limit. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be opened if new and material evidence is submitted. In this instance, since the December 2004 rating decision denied the claim on the basis that the evidence did not establish there were any current residuals as a result of an in-service head trauma, the Board finds that new and material evidence would consist of evidence that the Veteran currently suffers from residuals of a head trauma that occurred during service. Evidence received since the December 2004 decision consists of numerous medical records and documents. The Veteran has stated that he received "severe head trauma" in service in 1974. See April 2008 statement. He has also asserted that the head injury took place in December 1973, when he was punched and hit the back of his head against a cinderblock wall and was told he blacked out. See October 2008 statement. Evidence indicates that the Veteran was involved in an altercation in December 1973, according to service treatment records; however, there was no indication of a head injury at the time. Even if a head injury during service were to be conceded, current VA and private treatment records do not contain any evidence of current residuals due to head trauma sustained during service. Most importantly, the Veteran was afforded a VA examination in January 2013, during which he denied any head trauma during service, denied any cognitive dysfunction as a result of service, and was unable to describe where a possible scar on his scalp might be located. As such, the Board is unable to conclude that this evidence constitutes new and material evidence to reopen the claim, as there is no evidence that the Veteran currently suffers any residuals of a head trauma. The Veteran's statements regarding a head injury during service do not describe any currently suffered residuals as a result of an incident during service. Furthermore, there is no medical evidence indicating that the Veteran has any current residuals. Therefore, the Board has no alternative but to conclude that the additional evidence and material received in this case as to the claim for service connection for residuals of a head injury does not relate to an unestablished fact necessary to substantiate the claim and thus is not material. It is not material because it does not indicate that the Veteran currently suffers from any residuals and therefore does not raise a reasonable probability of substantiating the claim. 38 U.S.C.A. § 3.156(a). ORDER New and material evidence not having been received, the Veteran's application to reopen the claim for entitlement to service connection for residuals of a head injury is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs