Citation Nr: 1341648 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 10-18 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the residuals of a head injury, to include loss of memory and confusion. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Carmichael, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2009 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2011, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO. A transcript of the hearing is of record. The Veteran was afforded a period of 30 days within which to submit additional evidence; however, no additional evidence has been received. This case was previously remanded by the Board in September 2012 for additional development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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. In an unappealed decision of May 2006, the RO denied service connection for residuals of a head injury to include memory loss and confusion; this decision is final. 2. The evidence added to the record since the May 2006 RO decision was previously submitted to agency decision makers, is cumulative or redundant and, by itself or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for residuals of a head injury to include memory loss and confusion. CONCLUSION OF LAW Subsequent to the final May 2006 rating decision, new and material evidence has not been presented to reopen the claim of service connection for residuals of a head injury to include memory loss and confusion. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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, medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim to reopen, the VCAA also requires the Secretary to examine 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. The veteran must also be notified of what constitutes both "new" and "material" evidence to reopen the previously denied claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). VA advised the Veteran in June 2009 of information as to the evidence required to substantiate the claim, and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained the type of information and evidence needed to reopen a previously denied claim under Kent. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes the Veteran's Report of Separation Form (DD form 214), a service separation examination, a mission summary for the USS Buckner, VA outpatient treatment records, and lay statements from the Veteran. Many of the Veteran's service treatment records are not available. In September 2009, VA requested the Veteran's service treatment records or any records confirming the Veteran was injured in 1956 from the National Personnel Records Center (NPRC). In a September 2009 response, NPRC informed VA that no medical records were on file and the records were "fire related." Under such circumstances, there are heightened obligations to assist the Veteran in the development of the case; to explain findings and conclusions, and to consider the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet.App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). In November 2009 and December 2009, the Veteran was notified by the RO that his service treatment records might have been destroyed in a fire. In both letters, the RO requested that the Veteran complete enclosed forms with as much information as possible so the RO could make further efforts to verify the Veteran's claimed head injury in 1956. There was no response from the Veteran. He did not supply any evidence or information by which VA could assist in obtaining additional evidence. During an August 2010 hearing before the Decision Review Officer (DRO) at the RO and during the July 2011 Travel Board hearing, the Veteran intimated that any service treatment records related to his claimed head injury may not have been associated with his Army service treatment records because he was being transported overseas on a Navy ship, separate from his unit, and he was most likely treated by Navy personnel. In July 2011, the RO made further attempts to verify the Veteran's claimed head injury in 1956 by requesting records, specifically all deck logs, or any other supporting data related to the claimed incident from the National Archives and Records Administration (NARA). The RO sought confirmation that the USS Buckner was at sea and encountered Typhoon Thelma in April 1956 and any information relevant to the Veteran's claimed head injury occurring in April through June 1956 aboard the ship. However, as noted, the Veteran reports that the USS Buckner was not en route to Korea, but to the Federal Republic of Germany. In August 2011, NARA responded that their records did not include decks logs for ships operating under the Military Sealift Command (formerly the Military Sea Transportation Service (MSTS)). NARA notified VA that MSTS logbook information should be requested from the Public Affairs Office at the Military Sealift Command. In September 2011, the RO requested all deck logs or any other supporting data related to the claimed incident from the Public Affairs Office at the Military Sealift Command. In November 2011, the RO noted there was no reply to the deck logs request and forwarded the claim to the Board. The Board remanded this case in September 2012 and instructed the RO to provide the Veteran with an adequate notice of alternative forms of evidence to support his claim and to request the Veteran to identify all records of VA and non-VA medical treatment. The remand also instructed the RO to contact the Public Affairs Office at the Military Sealift Command and any other appropriate government agency to obtain information including deck logs, operational or situational reports from the USS Simon B. Buckner (T-AP-123), for the period from February to June 1956. In December 2013, the Navy Military Sealift Command informed the RO that all deck logs dated January 1, 1981 and older had been transferred to NARA. As noted above NARA informed the RO that the requested records were not in their possession in August 2011. VA correspondence with the Veteran in May 2013, informed him of the RO's attempts to obtain any additional records. The RO readjudicated the petition to reopen and issued a supplemental statement of the case in May 2013. The development requested by the September 2012 remand has now been satisfactorily completed and substantially complied with respect to the petition on appeal. See Stegall, 11 Vet. App. 268 (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded many opportunities to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Petition to Reopen Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. Service connection for residuals of a head injury to include memory loss and confusion was denied by a rating decision dated May 2006, because there was no evidence the claim condition existed. There was no appeal filed, and that decision became final. 38 U.S.C. § 4005(c) (2002); 38 C.F.R. §§ 3.104, 19.129, 19.192 (2005). Thus, the Veteran's service connection claim may be considered on the merits only if new and material evidence has been received since the prior adjudication. See 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (1996). New and material evidence means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of evidence of record at the time of the last prior final denial, and which raises 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 is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. In July 2009, the RO denied the Veteran's claim for service connection for residuals of a head injury to include memory loss and confusion, finding that no new and material evidence had been received demonstrating the Veteran suffered from residuals of a head injury that occurred in service. New evidence received by the time of the July 2009 rating decision included VA treatment records from the VAMC Huntington for the period January 2006 through February 2009. Since July 2009, the Board has received VA treatment records from the VAMC Huntington for the period July 2009 through September 2012, a "mission summary" of the USS Buckner, lay statements from the Veteran, and transcripts from the Veteran's DRO hearing of August 2010 and Board hearing of 2011. In his statements the Veteran alleges that while a member of the U.S. Army, he was en route to Bremerhaven, Germany (and not to Korea, as his representative has alleged), at some point between February and April 1956. He alleges that he fell into the ship's bulkhead during a storm at sea aboard the troop transport ship USS Simon B. Bunker (Hull Number T-AP-123). There are no deck logs or service treatment records available to verify the Veteran was on board the USS Buckner or that he fell while on the ship during a storm in 1956. VA treatment records from an October 2007 CT scan reported "There is some brain atrophy. Additionally, there is minimal low attenuation change in the periventricular white matter, probably associated with small vessel chronic ischemic vascular injury. There appears to be lacunar infarct in the left basal ganglia." In July 2008, the Veteran failed to report any history of falls. In January 2010, the Veteran reported a head injury in service but the examination did not include any findings of a head injury. In April 2010, the VA records show a CT scan of the head was conducted and compared with the CT scan conducted in October 2007 noting "old infarct left basal ganglia. No acute intracranial hemorrhage is noted. No midline shift is noted. No hydrocephalus is noted." In October 2010, the Veteran reported lightheadedness but no head injury. In October 2011, the Veteran reported a history of lightheadedness with back pain. In December 2011, the Veteran denied experiencing headaches, constipation, or dizziness. During his hearings the Veteran advised VA that he did, and did not, undergo any medical treatment while on board the vessel. Compare August 2010 DRO hearing indicating that he did not undergo such treatment and July 2011 Board hearing, indicating that after the alleged on-board incident, the Veteran was taken to a sick bay, apparently examined by two senior officers (who advised him his "brain exploded") and later returned to his on-board quarters where he alleges both blood and tissue came from his mouth. The newly received evidence, when considered in conjunction with the previous evidence of record, does not relate to an unestablished fact regarding that hypertension was not incurred in or aggravated by service. Although new, the evidence does not relate to unestablished facts necessary to substantiate the claim for service connection in a way that would raise a reasonable possibility of substantiating the previously denied claims. The newly received evidence reflects that the Veteran continues to reiterate his contentions that he fell and injured his head in service. Even if the Board concedes the fall occurred based on the lay evidence presented, this evidence has been previously established on the record. See generally Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). Therefore, as the evidence is considered cumulative and redundant of the evidence of record at the time of the final May 2006 RO decision and does not furnish a reasonable possibility of substantiating the Veteran's claim for service connection for the residuals of a head injury, to include loss of memory and confusion, this claim is not reopened. See 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been received, the claim for service connection for the residuals of a head injury, to include loss of memory and confusion is not reopened; and the appeal is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs