Citation Nr: 1343218 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 10-41 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for posttraumatic stress disorder (PTSD), and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for an acquired psychiatric disorder, to include depression, and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a previously denied claim of service connection for headaches, due to head trauma, and, if so, whether service connection is warranted. 4. Entitlement to service connection for degenerative disc disease of the cervical spine. 5. Entitlement to service connection for a right hand disorder. 6. Entitlement to service connection for traumatic brain injury (TBI). 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for hearing loss. 9. Entitlement to service connection for memory loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from October 1974 to December 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A hearing before the undersigned Veterans Law Judge at the RO was held in August 2011. A transcript of the hearing has been associated with the claims file. The request to reopen the claim of entitlement to service connection for PTSD;, an acquired psychiatric disorder, to include depression; and headaches, due to head trauma is granted herein, and the merits of the claim is addressed in the REMAND portion of the decision below. In addition, the issues of degenerative disc disease of the cervical spine, a right hand disorder, TBI, tinnitus, hearing loss, and memory loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An April 2003 Board decision denied the Veteran's original claim for entitlement to service connection for PTSD. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 2. Evidence received since the April 2003 Board decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for PTSD. 3. An October 2004 rating decision denied the Veteran's original claim for entitlement to service connection for an acquired psychiatric disorder, to include depression. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 4. Evidence received since the October 2004 rating decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder, to include depression. 5. A December 1996 rating decision denied the Veteran's original claim for entitlement to service connection for headaches, due to head trauma. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 6. Evidence received since the December 1996 rating decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for headaches, due to head trauma. CONCLUSIONS OF LAW 1. The April 2003 Board decision denying entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. Since the April 2003 Board decision, new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The October 2004 rating decision denying entitlement to service connection for an acquired psychiatric disorder, to include depression, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 4. Since the October 2004 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include depression. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The December 1996 rating decision denying entitlement to service connection for headaches, due to head trauma, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 6. Since the December 1996 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for headaches due to head trauma. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) VA has a statutory and regulatory 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), the veteran must be apprised as to the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence. Kent further requires that the notice inform the veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. In light of the favorable outcome of this appeal with respect to the issue of whether new and material evidence has been submitted to reopen the claims (reopening of the claims by the Board), any perceived lack of notice or development is not prejudicial. See 38 U.S.C.A. §§ 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). II. Merits of the Claims In general, unappealed RO and Board decisions are final. See 38 U.S.C.A. § 7104 , 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. See 38 C.F.R. § 3.156(a) (2012). To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of evidence of record at the time of the last prior final disallowance and must prove merits of the claim as to each central element that was specified as a basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."' As previously stated, the Veteran's claim for PTSD was originally denied in an April 2003 Board decision which determined the evidence did not demonstrate that the Veteran's PTSD was related to his military service. The Veteran did not appeal the decision. Therefore, the April 2003 Board decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). The Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include depression, was originally denied in an October 2004 rating decision; the Veteran was notified of the denial and he did not appeal the decision. Therefore, the October 2004 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). In June 2008, the Veteran submitted a request to reopen these claims. This resulted in the April 2009 rating denial which is the subject of the current appeal. Finally, the Veteran's claim of entitlement to service connection for headaches, due to head trauma, was originally denied in a December 1996 rating decision; the Veteran was notified of the denial and he did not appeal the decision. Therefore, the December 1996 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). In November 2002, the Veteran submitted a request to reopen the claim for entitlement to service connection for headaches which the RO denied in a September 2003 rating decision. The Veteran submitted a timely notice of disagreement in July 2004. However, a statement of the case was not issued. Therefore, the September 2003 rating decision is not final and is also the subject of the current appeal. According to the record, since the final decisions, the Veteran testified under oath before the undersigned Veterans Law Judge in August 2011 that he was told by doctors that his disabilities are related to an injury sustained during his military service. The Veteran stated that while on active duty he was hit in the back of the head with a metal garbage can by other soldier in an incident he believes was hazing. As the Court stated in Shade v. Shinseki, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade, supra. Therefore, the Board has no alternative but to conclude that the Veteran's testimony as to the claims does elate to an unestablished fact necessary to substantiate the claim and, thus, is material as it raises a reasonable probability of substantiating the claims. 38 C.F.R § 3.156(a). ORDER As new and material evidence has been received, the claim for entitlement to service connection for PTSD, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for an acquired psychiatric disorder, to include depression, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for headaches due to head trauma, is reopened and, to that extent only, the appeal is granted. REMAND A remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). As stated above, the Veteran testified before the undersigned Veterans Law Judge in August 2011. There, he testified that his disabilities stemmed from his military service. The Veteran indicated that he was currently being treated for his disabilities at the VA medical center in Detroit. He also indicated he had received treatment at the Battle Creek VA medical center. The Board recognizes that several records are absent from the claims file and none are available in the Virtual VA electronic records system. The most recent VA treatment record within the claims file is dated January 2009. As such, the RO must secure any outstanding records and associated them with the claims files. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA medical facilities, namely in Detroit and Battle Creek, and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims, considering all applicable laws and regulations. If the claims are denied, the AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs