Citation Nr: 1400181 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 09-07 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for residuals of an injury to the left temple to include traumatic brain injury (TBI). 2. Entitlement to service connection for residuals of an injury to the left temple to include TBI. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1968 to July 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which declined to reopen the previously denied claim of service connection for residuals of a left temple injury. This case was previously before the Board in June 2013, when it was remanded to afford the Veteran an opportunity to appear at a hearing before the Board. In September 2013, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. Therefore, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. An unappealed rating decision in April 1990 denied service connection for residuals of an injury to the left temple on the grounds that the Veteran's service treatment records did not show any such injury; no new and material evidence was received within one year of its issuance. 2. Evidence submitted since the April 1990 rating decision addresses the basis for the denial of service connection for residuals of an injury to the left temple and raises a reasonable possibility of substantiating the claim. 3. The competent and credible evidence does not show that an injury to the left temple occurred in service. CONCLUSIONS OF LAW 1. The April 1990 rating decision denying service connection for residuals of a left temple injury is final. 38 U.S.C.A. § 7104 (West 2002). 2. New and material evidence on the claim of service connection for residuals of a left temple injury has been received and the claim may be reopened. 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 a left temple injury, to include TBI, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has a 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, 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). Further, 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 readjudication 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 claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. Here, the Veteran was sent a letter in December 2005 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter did not explain what type of information and evidence was needed to establish a disability rating and effective date. However, as the instant decision denies the underlying service connection claim, no rating percentage and effective date will be assigned. As such, the notice deficiency is moot. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records are silent as to any complaints or treatment for any sort of trauma to the Veteran's head or left temple, despite including multiple records related to the treatment for a cyst on the left temple and removal of that cyst. Moreover, the post-service evidence does not indicate any current complaints or treatment related to the alleged injury to his temple until he filed his claim of service connection in 1990. Furthermore, the record contains no competent evidence suggesting a causal relationship between any current symptoms or diagnoses and the Veteran's service. (Additionally, the Veteran's statements of persistent symptoms are not deemed credible here, as will be discussed in more detail below.) For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a September 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Additionally, the Court has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the September 2013 hearing, the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to the symptoms attributed to the injury or disability. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Standard for Reopening a Claim 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 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of that claim. Evidence Previously Considered The Veteran's claim of service connection for residuals of an injury to the left temple was originally denied in a rating decision issued in April 1990. At that time, the evidence consisted of the Veteran's service treatment records and post-service VA treatment records from 1989. The basis for the denial of service connection was that the record did not show any evidence of an injury to the left temple in service. (The service treatment records did show a resection of a dermoid cyst in service, for which service connection had been granted.) The April 1990 decision was not appealed and new and material evidence was not received within one year of its issuance. Accordingly, it became final. 38 U.S.C.A. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Evidence Newly Submitted Since the April 1990 rating decision, the Veteran has submitted additional evidence, including photos and written statements, medical records showing evidence of some psychiatric impairment, and his sworn testimony at hearing. At his hearing, the Veteran specifically testified that he was first treated in service for a knot on the left temple that resulted from a fall at the end of his duty shift in the boiler room. In a written statement, the Veteran said that he slipped and struck the left side of his forehead on the sharp edge of a pump, an injury which he believed was a direct cause of affecting the cyst already on his forehead. Removal of the cyst led to an infection and recurrence of the cyst, which later caused him problems with job performance and an inability to think properly, leading in turn to a severe stress reaction. Analysis The evidence submitted in support of the claim to reopen the issue of service connection for residuals of a left temple injury was not previously considered and pertains to the elements of service connection, including an injury in service. As such, this evidence is considered new evidence on the matter. The evidence submitted is also material in nature, that is, it pertains to the reasons for the previous denial and raises a reasonable possibility that the claim of service connection might be substantiated. Further, for purposes of the application to reopen only, the evidence is presumed to be credible. As it indicates that there was an injury to the left temple in service, which was the basis for the previous denial, it is new and material evidence. The claim of service connection for residuals of a left temple injury, to include TBI, will be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis The Veteran's service treatment records clearly show that he was treated multiple times for a cyst on the left temple, with resulting infection, skin graft, and plastic surgery. Service connection is in effect for the scar resulting from this treatment and there is no dispute that the Veteran had significant treatment for this issue in service. The claim currently before the Board, while related to the excision of the cyst on the left temple, is specifically for residuals of an injury, to include a traumatic injury to the brain. The Veteran has asserted that a slip and fall injury to the left temple affected the cyst that was already there and to some extent triggered the additional treatment. He testified to residuals of this injury including recurrent headaches, mood swings, and memory problems. As stated, the service treatment records show evidence of a cyst over the Veteran's left eyebrow in the area of his temple. This was originally presumed to be a hematoma, but was found to be a subgaleal or inclusion cyst on the initial surgery in November 1968. The cyst recurred in February 1969 and again in September 1969 before being completely excised. The February 1969 pathology report described the cyst itself as containing a thick, yellow viscid fluid, and exhibiting a foreign body reaction due to impacted hairs. There was no demonstrated connection to the central nervous system. An X-ray of the skull performed in October 1968 had shown no abnormalities. The consistent diagnosis was dermoid cyst, with subsequent infection. None of the Veteran's service treatment records make any reference to a head injury, laceration, bleeding, unconsciousness, or trauma to the head occurring at any time. While headaches were noted after the final surgical repair of the site, beginning in January 1970, there is likewise no reference in those treatment records to any prior head injury or trauma, nor any suggestion that the headaches were related to the surgical removal of the cyst. The Veteran filed a claim in 1976 for removal of a tumor from the left side of his forehead on three occasions in service. Service connection was granted for the scar resulting from the cyst excisions. The 1976 claim did not refer to any sort of trauma or head injury in service. A VA examination for the Veteran's scar in December 2008 noted the removal of a dermoid cyst that was subsequently infected, leaving a significant scar in the left temple area. The VA examiner did not note the report of any head injury or trauma associated with the cyst by the Veteran. At the September 2013 hearing, the Veteran specifically testified that he was first treated in service for a knot on the left temple that resulted from a fall at the end of his duty shift in the boiler room. In a separate written statement, the Veteran explained that he slipped and struck the left side of his forehead on the sharp edge of a pump, an injury which he believed was a direct cause of affecting the cyst already on his forehead. Removal of the cyst led to an infection and recurrence of the cyst, which later caused him problems with job performance and an inability to think properly, leading in turn to a severe stress reaction. He testified that his current symptoms of traumatic brain injury included difficult thinking, mood swings, anger outbursts, forgetfulness, and occasional dizziness or balance problems. Essentially, this claim centers on the Veteran's assertions that the cyst which was removed in service and for which service connection has already been granted was "dormant" prior to service and only required treatment after he fell in service and struck his head in the precise location of the cyst. While the Veteran is legally considered competent to offer evidence regarding his own experiences, including symptoms such as pain and dizziness, the legal significance of that evidence hinges on the credibility of the evidence, as well as on its competence. In this instance, the Board finds that the Veteran's statements of a left temple injury sustained in service are not credible. None of the contemporaneous medical records associated with the Veteran's treatment for a cyst on his left temple reference any concerns about trauma to the Veteran's head, nor is there any mention of bleeding, laceration or other injury to the cyst, or loss of consciousness. Neither the records for the treatment of the Veteran's cyst, which continued for some three years, nor the two treatment records mentioning his complaints of headache ever discussed a fall or head injury of any kind. Given that injuries to the head, particularly the temple region, are generally acknowledged to carry the risk of serious medical consequences, the Board finds the lack of reference to such an injury in the relevant records significant. The Board also finds that the lack of any reference in the record to a head injury, to include traumatic brain injury or loss of consciousness, prior to the 1990 claim of service connection supports the conclusion that the Veteran's statements are not credible on this point. Indeed, in the medical treatment records since service separation does not include any diagnosis or discussion of treatment for head injury residuals and the Veteran did not testify to treatment for anything other than headaches. While headaches, and mood disturbances which the Veteran has likewise been treated for, may be symptoms or residuals of a traumatic brain injury, these conditions are just as likely to be distinct disorders due to other causes. The Board finds it significant that the Veteran's medical treatment records do not indicate testing, treatment, or diagnosis of traumatic brain injury despite the ongoing treatment for multiple other complaints. This fact further undermines the Veteran's credibility on the occurrence of any head injury in service. The Board recognizes that the absence of documented contemporaneous treatment cannot, by itself, serve as a basis for denying service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, there were objectively normal findings, and an absence of complaints, upon separation. Moreover, a head injury was not described at the May 2008 VA examination. These factors, along with the absence of documented treatment enable a finding that the lay evidence is not credible. The Board acknowledges that the Veteran's statements and testimony were the basis for the decision to reopen the claim of service connection. However, with respect to the issue of whether evidence offered is new and material evidence, all evidence offered is to be presumed credible. Justus v. Principi, 3 Vet. App. 510 (1992). The same is not true when the claim is considered on the merits. In short, the preponderance of the evidence is against the Veteran's claim of service connection for residuals of a left temple injury because there is no credible evidence that any such injury occurred in service. The evidence of record serves to indicate only that he was treated for a cyst on the left temple, residuals of which are already service connected. Where the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply. 38 C.F.R. § 5107(b). ORDER New and material evidence having been received, the claim of entitlement to service connection for residuals of a left temple injury, to include TBI, is reopened and, to that extent only, the appeal is granted. Entitlement to service connection for residuals of a left temple injury, to include TBI, is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs