Citation Nr: 1334555 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-22 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for residuals of traumatic brain injury, to include headaches and cognitive impairment. 2. Entitlement to service connection for residuals of traumatic brain injury, to include headaches and cognitive impairment. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1972 to July 1979 and from January 1981 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a video-conference hearing in June 2013. In July 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in October 2013. Because the opinion of the VHA specialist fully supports the Veteran's claims, the Board will proceed with the consideration of his case. 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. The evidence reflects the Veteran was in a motor vehicle accident in January 1984 while on active duty. 2. An unappealed May 1999 rating decision denied the Veteran service connection for memory loss and head pain, based essentially on findings that there was no evidence the Veteran incurred or permanently aggravated a chronic memory or head pain condition in service. 3. Evidence received since the May 1999 rating decision relates to an unestablished fact necessary to substantiate the claim for residuals of traumatic brain injury, and raises a reasonable possibility of substantiating the claim. 4. Resolving all doubt in favor of the Veteran, the evidence of record reflects it is at least as likely as not that the Veteran has residual headaches and cognitive impairment as a result of his in-service motor vehicle accident. CONCLUSIONS OF LAW 1. The May 1999 rating decision that denied service connection for memory loss and head pain is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2013). 2. New and material evidence has been received to reopen the claim of service connection for residuals of traumatic brain injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection for residuals of traumatic brain injury, to include headaches and cognitive impairment, are met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants reopening of the claim of entitlement to service connection for residuals of traumatic brain injury, as well as the underlying claim of entitlement to service connection for residuals of traumatic brain injury. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. New and Material Evidence Analysis 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" 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. 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 new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Historically, a May 1999 rating decision denied the Veteran's claim for service connection for memory loss and head pain, essentially based on findings there was no evidence the Veteran incurred or permanently aggravated a chronic memory or head pain condition in service. He did not appeal this decision and, as such, it became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for memory loss and head pain was received prior to the expiration of the appeal period stemming from the May 1999 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran's service treatment records show that in January 1984, he was involved in a motor vehicle accident during which he hit his head. The Veteran was transported by ambulance to the hospital where he complained of pain to the eyes and the back of his head. It was also noted that the Veteran was acting nervous and thought that the "back of [his] head was gone. In February 1984, the Veteran was referred to neurology. It was noted that at the time of the accident, the Veteran was unconscious for about five to ten minutes. It was also noted that following the accident, he was "fuzzy" and did not know where his home was for a day and a half. He also complained of headaches. The initial diagnosis was post-traumatic headache. Upon neurology evaluation, the Veteran complained of frequent and continuous pain in his neck and the base of his skull. The assessment was muscle spasm. Subsequent service treatment records show periodic complaints of headaches, generally in conjunction with cold symptoms. The evidence added to the record since the May 1999 rating decision includes VA treatment records, statements from the Veteran and his wife, testimony from the Veteran, and a medical nexus opinion from a medical specialist from the Veterans Health Administration (VHA). Such evidence includes the Veteran's reports of headaches and cognitive impairment since the motor vehicle accident in-service, and medical evidence opining that his headaches and cognitive impairment are related to his in-service motor vehicle accident. As noted above, the Veteran's testimony that his residuals of traumatic brain injury began following the in-service motor vehicle accident are presumed credible for the limited purpose of reopening the previously disallowed claim. Justus v. Principi, 3 Vet. App. 510 (1992). When considered with the VA treatment records and VHA opinion, noting residual disability from the in-service motor vehicle accident, it satisfactorily relates to an unestablished fact necessary to substantiate the claim, and is neither cumulative nor redundant. As the Board finds that the additional medical records and the Veteran's testimony are new and material, there is no need to discuss whether any other evidence is likewise new and material as the claim will be reopened solely on the basis of this evidence. Accordingly, the claim of service connection for residuals of traumatic brain injury is reopened, and to this extent, the appeal is granted. Merits Analysis As the claim is reopened, the analysis proceeds to de novo review. The Veteran is not prejudiced by the Board's proceeding with de novo review of the claim without returning it to the RO for initial de novo consideration (upon reopening of the claim) because the Board is granting the claim. In addition, the Board finds that no further development is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by the veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodrigues, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Post-service evidence includes a March 1990 VA examination during which it was noted that the Veteran sustained head trauma in service during a motor vehicle accident, after which he experienced three to six months of headaches and syncope. However, he denied having current symptoms. A diagnosis of post-trauma syncope, resolved, was provided. In November 1998 correspondence, the Veteran reported that the head injury during service resulted in head pain and loss memory, and that over the last two years, the pain and memory loss had worsened. In an April 1999 written statement, the Veteran reported that he was told by military doctors that he would eventually have memory loss. He also related his headaches to his in-service motor vehicle accident. VA treatment records from February 2009 through April 2012 show continued complaints of memory loss, headaches, and cognitive problems. Pursuant to neurology treatment in March 2009, diagnoses of status post closed head injury in 1984, episodes of impaired memory, and frequent headaches, were provided. An April 2009 MRI of the brain demonstrated chronic ischemic white matter changes. The same month, a neurologist assessed memory loss and behavioral change and possible early dementia. The Veteran was placed on galantamine but found that it did not alter his cognition. The Veteran also underwent an EEG in May 2009, which showed mild slowing intermittently with some encephalopathic features, opined to be possibly compatible with prior head trauma. Correspondence received from the Veteran's spouse related that the Veteran has had headaches and cognitive impairment since the in-service motor vehicle accident. At the July 2013 Board hearing, the Veteran testified that his residuals of the in-service motor vehicle accident began immediately after the accident, reporting that he passed out at the grocery store the day after the accident. Since the accident, his headaches and cognitive impairment have worsened. In July 2013, the Board requested the opinion of a medical specialist from the VHA. In an October 2013 VHA medical opinion, the specialist noted that he reviewed the Veteran's claims file, and listed various pertinent evidence. The specialist provided diagnoses of traumatic brain injury, mild, secondary to the January 1984 motor vehicle accident, which he indicated was well supported by the record; headaches, opined to be likely related to the January 1984 motor vehicle accident, although fluctuating severity was described over the years; and cognitive symptoms. It was noted that cognitive symptoms after a mild traumatic brain injury are typically worse in the first few weeks to months after the injury and gradually improve. The MRI brain findings in 2009 are nonspecific and can be seen in patients with hypertension and dyslipidemia, although at his age, they could be out of proportion to the vascular risk factors he has. The EEG findings were also nonspecific by themselves. The specialist opined though that with the patient complaining of memory problems in the 1990s and ongoing headache symptoms, his cognitive symptoms are at least as likely as not related to the traumatic brain injury in January 1984. The Veteran contends that his residuals of traumatic brain injury, including headaches and cognitive impairment, began after and are due to the January 1984 in-service motor vehicle accident. The testimony from the Veteran is credible and competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also 38 C.F.R. § 3.303(a). The Board notes that the October 2013 specialist opined that the Veteran's traumatic brain injury, headaches, and cognitive impairment are all related to his in-service January 1984 motor vehicle accident. The October 2013 medical opinion addressed the Veteran's in-service events, medical findings and history, and fully articulated a definite conclusion. The specialist's opinion is fully supported by a reasoned analysis as well. Significantly, it is the only medical evidence of record addressing the matter of a nexus between the in-service motor vehicle accident and residuals of traumatic brain injury. Accordingly, it is of great probative value and is consistent with the Veteran's assertions. Resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for residuals of traumatic brain injury, to include headaches and cognitive impairment, is warranted. See 38 C.F.R. § 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER New and material evidence having been presented, the Veteran's claim of service connection for residuals of traumatic brain injury is reopened, and to this extent, the appeal is granted. Service connection for residuals of traumatic brain injury, to include headaches and cognitive impairment, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs