Citation Nr: 1334497 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-07 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a head injury. 2. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a left shoulder injury. 3. Whether new and material evidence has been received to reopen a claim for service connection for breathing problems with cough. 4. Entitlement to service connection for headaches. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION This Veteran served on active duty from July 1968 to July 1970, including service in Vietnam from December 1968 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); which denied, in pertinent part, service connection for posttraumatic stress disorder, and denied reopening claims of service connection for breathing problems with cough; headaches; residuals of a left shoulder injury; and residuals of a head injury. Although initially denied in July 2002, since new medical evidence pertinent to the basis of the denial of the claim for service connection for headaches was constructively of record in the year after that decision, new and material evidence is not needed to now consider that claim on the merits, de novo. In February 2009, the Veteran appeared at the Jackson RO and testified before a Decision Review Officer regarding his claims. A transcript of that hearing is in the claims file. In a decision dated in December 2011, the RO granted service connection for PTSD with an evaluation of 30 percent effective January 8, 2007. The benefit sought, namely, service connection, having been granted, that claim is no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. In a rating decision dated in July 2002, the RO denied, in pertinent part, service connection for residuals of a head injury and a left shoulder injury; and in a rating decision dated in July 2004, the RO denied, in pertinent part, service connection for breathing problems with cough. The Veteran did not appeal either of those decisions. 2. Evidence compiled since the July 2002 rating decision denying service connection for residuals of a head injury and a left shoulder injury, and since the July 2004 rating decision denying service connection for breathing problems with cough, does not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the claims. 3. The Veteran's recurrent headache disorder described at entrance into service, increased in severity during service. CONCLUSIONS OF LAW 1. The July 2002 rating decision denying the claims for service connection for residuals of a head injury and a left shoulder injury is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §3.104 (2012). 2. The July 2004 rating decision denying the claim for service connection for breathing problems with cough is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §3.104 (2012). 3. New and material evidence has not been received since the last final decision on the claim for service connection for residuals of a head injury, so the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. New and material evidence has not been received since the last final decision on the claim for service connection for residuals of a left shoulder injury, so the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 5. New and material evidence has not been received since the last final decision on the claim for service connection for breathing problems with cough, so the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 6. The criteria for a grant of service connection for a chronic headache disorder are met. 38 U.S.C.A. §§ 1110, 1151, 5107 (West 2002); 38 C.F.R. § 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter dated in June 2007, which informed the Veteran that new and material evidence was needed to reopen his claims for service connection, and of the reasons for the prior denials. The notice also apprised the Veteran of the criteria for service connection; of the information and evidence needed to substantiate his claim; of VA's respective duties for obtaining evidence; and of how VA determines disability ratings and effective dates. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as prescribed by the facts and circumstances in this case. Service treatment records, VA medical records, and private medical records were obtained and are in the claims file. Additionally, and though not required (see 38 CR 3.159(c)(4)(C)(iii)), the Veteran was accorded multiple VA examinations. The Board has reviewed the ensuing reports and finds that they are adequate. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In addition, the Veteran testified regarding his claims before a Decision Review Officer, and he was offered, but declined, the opportunity to testify before a Veterans Law Judge. In short, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Accordingly, the Board concludes that all reasonable efforts have been made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence on the issues resolved in this decision is required. See Pelegrini, 18 Vet. App. at 121; Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). II. New and material evidence When a claim is denied by the agency of original jurisdiction, it may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered absent presentation of new and material evidence. 38 C.F.R.§§ 3.104, 3.156. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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). In determining whether evidence is new and material, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In a rating decision dated in July 2002, the RO denied, in pertinent part, service connection for residuals of a head injury and a left shoulder injury; and in a rating decision dated in July 2004, the RO denied, in pertinent part, service connection for breathing problems with cough. After appropriate notice of the decisions and of his appeal rights, the Veteran did not appeal, and no evidence pertaining to these issues was either physically or constructively received by VA within one year of the rating decisions. The July 2002 and July 2004 rating decisions as relates to these issues are therefore final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. In July 2009, the Veteran requested that his claims for service connection for a head injury, a left shoulder injury, and a breathing disorder with cough be reopened. In a rating decision dated in June 2008, the RO denied reopening of the claims on the grounds of no new and material evidence. The Veteran has appealed. A. Head Injury In his March 2002 claim for service connection the Veteran said that a truck's loading ramp fell on him during service, injuring his head and left shoulder. In its July 2002 rating decision the RO denied the claim for service connection for head injury on the grounds that a head injury/residuals of a head injury had not been clinically diagnosed. The evidence of record at the time of the July 2002 rating decision consisted of service treatment records, which included a February 1970 record of treatment for mild right shoulder pain secondary to a ramp falling on the shoulder. Physical examination found no tenderness or external evidence of trauma. X-rays also were negative. Diagnosis was "mild bruise." The evidence also included VA treatment records dated in 2002, which contain no mention of any complaints of or treatment for head injury; and the report of a May 2002 VA neurological examination, including the results of mental status and cranial nerve testing, which were normal. A CT of the brain done pursuant to this examination "ruled out major structural head injuries." Evidence added to the record since the July 2002 rating decision includes VA and private medical records dating from January 1993 to September 2011. There is no evidence of head injury/brain trauma in any of these records. It therefore does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim; and so it is not new and material evidence. Additionally, the evidence includes the Veteran's testimony, during his 2009 Decision Review Officer hearing, that he sustained a head injury when a ramp fell on him in service. This evidence is cumulative and redundant of that of record at the time of the July 2002 rating decision; and it consequently does not constitute new and material evidence. Social Security disability records were also associated with the claims file after the July 2002 rating decision. There is no evidence of an in-service head injury or head injury residuals in these records, and it there is not new and material evidence. The new evidence also includes the report of a September 2009 VA TBI examination, which found "no residual cognitive, motor, or neurological behavioral deficits from a traumatic brain injury in 1969." This negative evidence does not raise a reasonable possibility of substantiating the claim and it is therefore not new and material evidence. As new and material evidence, i.e., proof of a 1969 head injury or current head injury residuals, has not been presented on this claim, the Veteran's request to reopen the claim for service connection must be denied. B. Left Shoulder Injury As stated before, in his March 2002 claim for service connection the Veteran said that a loading ramp fell on him during service, injuring his head and left shoulder. In its July 2002 rating decision the RO denied the claim for service connection for left shoulder injury on the grounds that there was no mention of a left injury in service treatment records; and because there was no evidence of any left shoulder injury residuals. In its ensuing Statement of the Case the RO stated that it had reopened, but then again denied the claim. Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). The evidence of record at the time of the July 2002 rating decision consisted of service treatment records, including a February 1970 record of treatment for mild right shoulder pain secondary to a ramp falling on the right shoulder. The evidence also included VA treatment records dated in 2002, which contain no mention of any complaints of or treatment for left shoulder injury; and the report of a May 2002 VA neurological examination, including the results of motor and sensory nerve testing, which were normal. Evidence added to the record since the July 2002 rating decision includes VA and private medical records dating from October 2002 to September 2011; and Social Security disability records. There is no evidence in any of these records of a left shoulder disorder. This evidence thus does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim; and so it is not new and material evidence. Additionally, the evidence includes the Veteran's testimony, during his 2009 Decision Review Officer hearing, that he sustained a left shoulder injury when a ramp fell on him in service. He testified that the ramp hit his head and both shoulders, not just the right shoulder. Although new, the Board finds that this lay evidence of in-service incurrence is not credible because it is contrary to the Veteran's contemporaneous report during service; namely, that a ramp had fallen on his right shoulder. Service treatment records clearly show that he sought medical care immediately after the incident and that he complained only of right shoulder pain; and the treatment provider stated that the only injury from the incident was a "mild bruise" to the right shoulder. See King, 5 Vet. App. 19, 21 (1993) (providing that the presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). As the Veteran's testimony is not credible, it does not constitute new and material evidence. The new evidence also includes September 2009 VA spine/left shoulder examination findings of bilateral AC (acromioclavicular) arthrosis, left greater than right, which the examiner, a physician, stated was due to the normal aging process and not remote trauma. This negative evidence against the claim obviously does not raise a reasonable possibility of substantiating the claim and therefore does not constitute new and material evidence. As new and material evidence, i.e., proof of an in-service left shoulder injury or related residuals, has not been presented on this claim, the Veteran's request to reopen the claim for service connection must be denied. C. Breathing Problems with Cough As for the Veteran's request to reopen his claim for service connection for breathing problems and cough, in his March 2004 claim he said that he had breathing problems and coughs that had gotten worse over the years, and suggested that it was related to Agent Orange exposure. In its July 2004 rating decision the RO denied the claim for service connection for breathing problems with cough on the grounds that while there was a record of treatment during service for a minor upper respiratory infection, there was no evidence of any chronicity in service, and no evidence of a nexus between any postservice symptoms and service. The evidence of record at the time of the July 2004 rating decision consisted of service treatment records, which included a November 1969 record of treatment for cough and nasal congestion for the past 3 days. Diagnosis was minor upper respiratory infection. The evidence also included VA treatment records dating from November 2002 through May 2004, which contain no mention of any complaints of or treatment for breathing problems; and private treatment records dating from May 2002 to June 2003, which document complaints (in May 2002) of coughing and nasal drainage, diagnosed as sinusitis and bronchitis; and complaints in November 2002 of stuffy head and congested symptoms with sneezing and post nasal drainage, diagnosed as sinusitis. Evidence added to the record since the July 2004 rating decision includes VA medical records dating from November 2005, and private medical records dating from January 1993 to September 2011. Records dating from 2008 show a diagnosis of heart disease, for which the Veteran has been service-connected. See, e.g., private medical records dated in November 2008, and VA treatment records dated in June 2010. There is no other indication of breathing problems with cough. The new evidence also includes the Veteran's testimony, during his 2009 Decision Review Officer hearing, that he began to suffer from shortness of breath after service. He did not elaborate. This evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim (particularly since the Veteran has since been service-connected for heart disease); and it consequently does not constitute new and material evidence. As new and material evidence, i.e., proof of a chronic breathing disorder with cough other than as may be a symptom of heart disease, has not been presented on this claim, the Veteran's request to reopen the claim for service connection must be denied. III. Service Connection, Headaches In addition to the foregoing, the Veteran seeks service connection for headaches, which he contends are related to the sudden blow from the ramp falling on him during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Disorders diagnosed after discharge may also be service connected if all the evidence, including that pertinent to service, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls on the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet.App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). During his May 1968 induction examination the Veteran reported that he suffered from headaches. On February 10, 1970, a ramp fell on the Veteran's right shoulder while he was unloading a truck, and in a service treatment record dated two weeks later on February 25, 1970, a provider noted that the Veteran had been having more and more frequent headaches for the last two months. The headaches were described as frontal and constant. In July 1970 the Veteran separated from active duty service, and in March 2002 he filed his claim for service connection for headaches. VA and private medical records dating from 2001 advise of chronic headaches, variously diagnosed as tension, stress, or migraine headaches. On VA neurological examination in May 2002 the neurologist stated that the Veteran's headaches, which apparently pre-existed the injury during service, were likely aggravated by the in-service trauma to the right shoulder. In February 2009 the Veteran told a Decision Review Officer that his headaches started after a ramp fell on his head during service. Analysis Although not detected during the 1968 induction examination, the Board finds the Veteran's admissions during that examination and during a subsequent sick call on February 25, 1970, clearly and unmistakably shows that he suffered from headaches [not otherwise specified] prior to active duty service. 38 U.S.C.A. § 1151. Moreover, while there is no evidence in service treatment records that the ramp fell on the Veteran's head (and no evidence in service treatment records, or in post-service records, of a cranial or brain injury), service treatment records dated after the ramp incident do relate that the Veteran had begun to suffer from more severe headaches [not otherwise specified] during service. Additionally, private medical records dated approximate to the date of the Veteran's 2002 claim for service connection (from 2001) advise of chronic headaches; and in this regard the Board notes that there has been no development for remote post-service medical records. In any event, according to a VA neurological examiner, the Veteran's pre-existing headache disorder [not otherwise specified] was likely aggravated by the sudden blow to his right shoulder during service; and the record contains no evidence to the contrary. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Based on the evidence of record the Board is unable to find, by clear and unmistakable evidence, that the Veteran's pre-existing headaches disorder (whatever the genre) was not aggravated by active duty service. Service connection for headaches is therefore established. ORDER As new and material evidence has not been presented, the claim of service connection for residuals of a head injury is not reopened, and the appeal is denied. As new and material evidence has not been presented, the claim of service connection for residuals of a left shoulder injury is not reopened, and the appeal is denied. As new and material evidence has not been presented, the claim of service connection for breathing problems with cough is not reopened, and the appeal is denied. Service connection for headaches is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs