Citation Nr: 1341981 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 11-08 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of injuries to the head, to include blurred vision and headaches. 2. Entitlement to service connection for residuals of a head injury, diagnosed as post-concussive headaches. REPRESENTATION Appellant represented by: John R. Worman, Esq. ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active naval service from February 1968 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied the petition to reopen a claim for service connection for residuals of injuries to the head, to include blurred vision and headaches. Although the RO has determined the Veteran did not submit new and material evidence sufficient to reopen his claim, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The issue on appeal was styled in a May 1997 Board decision as entitlement to service connection for residuals of injuries to the right elbow and head, to include blurred vision and headaches, and in a January 2010 rating decision as a petition to reopen a claim of service connection for headaches, claimed as post-concussion headaches. The Board has further restyled the issue to better reflect the Veteran's complaints. In his April 2011 substantive appeal, the Veteran requested a Travel Board Hearing at his local RO. However, in September 2011, he submitted a letter cancelling his hearing request; therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e) (2013). A great deal of evidence has been submitted since the issuance of the last statement of the case in 2011; however, given the full grant of benefits on appeal, any error is non-prejudicial. FINDINGS OF FACT 1. The claim for entitlement to service connection for residuals of injuries to the head, to include blurred vision and headaches, was denied in a May 1997 Board decision; the May 1997 Board decision comprises the last final denial regarding the issue on any basis prior to the present attempt to reopen the claim. 2. Evidence associated with the claims file since the May 1997 decision includes evidence that is new and material. 3. The Veteran's post-concussive headaches are etiologically related to his 1968 in-service injury. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen a claim of entitlement to service connection for residuals of injuries to the head, to include blurred vision and headaches. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for service connection for residuals of a head injury, diagnosed as post-concussive headaches, have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and material evidence. The Veteran has been provided all required notice regarding his claim to his claim for service connection and no additional development is necessary. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). Further, he will not be prejudiced by the Board's adjudication of his claim, as the issue has been resolved in the Veteran's favor and any error in notice or development would be harmless. See Bernard v. Brown, 4 Vet. App. 384 (1993). A claim that is disallowed by an RO or the Board and not appealed within the required period is considered final and cannot be reopened unless new or material evidence is presented regarding the claim. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1100, 20.1104 (2013). Evidence is new if it was not previously submitted to agency decision-makers and material if, by itself or in consideration with prior record evidence, it relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence must not be cumulative or redundant of the record evidence at the time of the claim's prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The threshold for reopening a claim is low and does not require the claimant to present new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 115-119 (2010). The credibility, but not the weight, of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran filed an initial claim of entitlement to service connection for residuals of injuries to head and the RO denied the claim in July 1992, citing a lack of evidence that the Veteran's headaches were incurred during service. The Veteran appealed the rating decision to the Board and the Board denied the claim in May 1997, citing a lack of competent evidence of a current disability. The Board decision is final. 38 U.S.C.A. § 7266 (West 2002). Therefore, the Board considers evidence submitted from May 21, 1997, to the present. See Evans v. Brown, 9 Vet. App. 273, 287 (1996) (holding that, when evaluating a new and material evidence claim, the Board will consider only evidence added to the record after the last final denial of the prior claim either on the merits or on a prior petition to reopen the claim). Relevant medical evidence at the time of the 1997 Board decision included: service treatment records (STRs) from February to September of 1968; service personnel records (SPRs) that indicate the Veteran was seen at a naval hospital in July 1968 for pes planus and medically discharged for the same; May 1994 VA examination reports; and private treatment records from November 1978 to May 1994 from Kaiser Permanente Hospital which show a complaint of frontal headaches in January 1993. Relevant lay evidence of record at the time of the May 1997 Board decision included: a police report from August 1968 indicating that the Veteran was struck on his head with a pistol; a transcript of an August 1993 Board hearing during which the Veteran stated that his headaches began after his 1968 injury and he complained of headaches upon discharge; and the Veteran's statement in his January 1993 substantive appeal that he had used over-the-counter medication to treat his headaches and was told by a physician that his 1968 injury had caused his headaches. Relevant medical evidence received since the May 1997 Board decision includes: a December 2010 VA examination report for miscellaneous neurological disorders wherein the examiner opined that clinical and laboratory evidence was not sufficient to warrant a post-concussive headache condition and it was less likely than not that his headaches were caused by, related to, or aggravated by the 1968 injury; VA treatment records from June 2010 to June 2013 wherein the Veteran reported the 1968 injury and was assessed with chronic post-concussive and post-traumatic headaches; private treatment records from May 2005 to May 2011 from Southwest Medical Associates wherein Dr. M assessed the Veteran with headaches and post-concussion syndrome in May 2005 after noting the 1968 injury; and an October 2012 letter from a private physician, Dr. S, wherein he opined that the Veteran had post-concussion headaches that were as likely as not related to the 1968 injury. Relevant lay evidence received since the May 1997 Board decision includes: the Veteran's sister's October 2009 statement that he first complained of headaches after his 1968 injury and that in 1996 his headaches had worsened and required physician visits; the Veteran's October 2009 statement that he had severe headaches for several months following his 1968 injury, was discharged because of his headaches, and that his headaches had worsened since 1968; the Veteran's statements in the December 2010 VA examination report that he first sought treatment at Kaiser Permanente in 1969; the Veteran's statement in his April 2011 substantive appeal that he regretted having treated himself with over-the-counter medication instead of immediately seeking VA services; and the Veteran's August 2011 statement that he was treated at a naval hospital in August 1968 and at the University of Southern California Medical Center in September 1968. The Board finds the Veteran has presented new and material evidence sufficient to reopen his prior claim for service connection for residuals of injuries to the right elbow and head, to include blurred vision and headaches. VA treatment notes wherein the Veteran was assessed with post-concussive and post-traumatic headaches are new, as they were not of record when the 1997 Board decision was issued, and material, as the Veteran's prior claim was denied in part due to a lack of competent evidence of a current disability manifested by headaches. The letter from Dr. S is also new, as it was not of record when the 1997 Board decision was issued, and material, as it provides evidence of a nexus, which is needed to substantiate the Veteran's service connection claim. Further, the VA treatment notes and Dr. S's letter are not cumulative or redundant of evidence already of record and both raise a reasonable possibility of substantiating the Veteran's prior claim. Accordingly, the claim to reopen the Veteran's prior claim for entitlement to service connection for residuals of injuries to the right elbow and head, to include blurred vision and headaches, is granted. II. Service connection for residuals of a head injury. In light of the favorable decision, a discussion of Board's duties to notify and assist is unnecessary. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran contends that he has post-concussive headaches which began during active service in August 1968 after he was struck on the head with a pistol and lost consciousness. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Veteran has a current diagnosis of post-concussive headaches. Private physician Dr. M assessed the Veteran with headache and post-concussion syndrome in May 2005; VA physician, Dr. L, assessed the Veteran with chronic post-concussive headache in June 2010; in October 2012, a private physician, Dr. S, opined that the symptoms in Dr. M's treatment records were consistent with post-concussion syndrome and indicated that the Veteran's headaches were post-concussive; and an April 2013 VA problem list includes post-traumatic headaches. The Veteran is competent to report his August 1968 head injury, treatment, and symptoms and his account is credible, as it is consistent with an August 1968 police report and has remained relatively consistent over several decades. Jandreau v. Nicholson, 492 F.3d 1372, 177 n.4 (Fed. Cir. 2007). Although STRs do not contain evidence of the injury, treatment, or headache symptomatology, the Veteran was medically discharged only a few weeks after the assault; the record does not contain a separation examination; and any records of treatment at a naval hospital or a University of Southern California Medical Clinic have been destroyed. The Board therefore gives his account of the injury, immediate treatment thereafter, and headache onset great probative weight. Regarding a nexus, the record contains conflicting medical opinions regarding the relationship between the Veteran's post-concussive headaches and his 1968 injury. A VA examiner opined in December 2010 that the Veteran's headaches were less likely than not caused by, a result of, or permanently aggravated by his 1968 injury because clinical and laboratory evidence did not warrant a diagnosis of post-concussive headache; he first sought treatment 25 years after his discharge; there was no structural trauma of the head; the headaches were not prostrating; and he had no other neuropsychological symptoms characteristic of post-concussive headaches. A private physician, Dr. S, opined in October 2012 that the Veteran's post-concussive headaches were as likely as not related to the 1968 injury because research showed that 38 percent of people who meet criteria for a post-concussion syndrome diagnosis show no radiological evidence of impairment; the reported symptoms from Dr. M's treatment notes were consistent with post-concussive headaches and post-concussion syndrome; and research has shown that while most people recover quickly, some people may have permanent symptoms. The December 2010 VA examiner is competent to provide a medical nexus opinion and the report findings are credible. However, the Board gives the report limited probative weight because the examiner did not review VA and private treatment records from 2011 through 2013; did not provide a clear medical explanation that incorporated the Veteran's lay testimony regarding the onset and treatment of his headaches with over-the-counter medication from 1969 to 1993; and did not cite supporting medical literature. Instead, the Board gives more probative weight to Dr. S's opinion because, while Dr. S did not personally examine the Veteran, Dr. S reviewed the claims file, Dr. M's treatment notes, and the VA examiner's December 2010 report; provided a clear medical explanation that incorporated the Veteran's lay testimony; and supported the opinion with medical literature. See Gabrielson v. Brown, 7 Vet. App. 36 (1994) (holding that the Board may give greater probative weight to one examiner's opinion over another's based on its reasoning and whether prior clinical records or other pertinent evidence was reviewed). Further, VA treatment notes tend to support Dr. S's opinion, as in June 2010 Dr. L assessed the Veteran with post-concussive headaches after noting the 1968 accident, and in May 2011 Dr. L assessed the Veteran with headache since head trauma. The Board finds that the medical evidence of a nexus is in relative equipoise and resolves all doubt in favor of the Veteran to find that a medical nexus exists between his post-concussive headaches and the 1968 injury. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Accordingly, entitlement to service connection for residuals of a head injury, diagnosed as post-concussion headaches, is warranted. ORDER New and material evidence has been received to reopen the claim of service connection for residuals of injuries to the right elbow and head, to include blurred vision and headaches. Entitlement to service connection for residuals of a head injury, diagnosed as post-concussive headaches, is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs