Citation Nr: 1600755 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 14-11 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for residuals of traumatic brain injury (TBI), including headaches. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a low back disability, including degenerative joint disease (DJD). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and [redacted] ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Although the RO reopened the previously denied the claims of entitlement to service connection for residuals of TBI and a low back disability, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a low back disability, including DJD, before reaching any merit determination. In August 2014, the Veteran presented sworn testimony during a personal hearing before the undersigned Veterans Law Judge. At the hearing, the Veteran submitted additional evidence directly to the Board; he also submitted a waiver of local consideration of the evidence. This waiver and the transcript of the hearing have been associated with the Veteran's claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2015). Additionally, the record was held open for an additional thirty days to allow the Veteran to submit additional evidence. The issues of entitlement to service connection for residuals of TBI, including headaches, and a low back disability, including DJD, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a January 2010 rating decision, the RO denied the Veteran's claim of entitlement to service connection for residuals of TBI, including headaches. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received more than one year since the January 2010 rating decision relates to an unestablished fact that raises a reasonable possibility of substantiating the claim of service connection for residuals of TBI, including headaches. 3. In a January 2010 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a low back disability, including DJD. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 4. Evidence received more than one year since the January 2010 rating decision relates to an unestablished fact that raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability, including DJD. CONCLUSIONS OF LAW 1. The January 2010 rating decision that denied the claim of entitlement to service connection for residuals of TBI, including headaches, is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of TBI, including headaches. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The January 2010 rating decision that denied the claim of entitlement to service connection for a low back disability, including DJD, is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability, including DJD. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board finds that VA has satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the appeal given the fully favorable nature of the Board's decision. I. New and Material Evidence The claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A. Residuals of TBI In a January 2010 rating decision, the RO denied service connection for residuals of TBI, including headaches, on the basis that the disability was neither incurred in nor caused by active military service. The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the January 2010 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the January 2010 rating decision included some of the Veteran's service treatment records (STRs) and VA treatment records. In particular, the evidence showed that the Veteran's available STRs were absent any treatment, diagnosis, or complaints of residuals of TBI. See, e.g, Veteran's separation examination report dated March 1973. Additionally, VA treatment records noted the Veteran's complaints of headaches and treatment thereof. See, e.g., VA treatment record dated August 1992. Relevant evidence received more than one year since the January 2010 rating decision includes additional STRs, VA and private treatment records, a January 2012 VA examination report, a January 2012 VA addendum opinion, July 2013 lay statements, the August 2014 Board hearing transcript, and the Veteran's testimony and statements. Specifically, the additional STRs reveal that he was involved in a jeep accident during service and incurred a concussion. The lay statements, the Veteran's testimony and his statements suggest that his residuals of TBI are related to an in-service jeep accident. Lastly, the January 2012 VA examination report and January 2012 VA addendum opinion addresses whether the Veteran's residuals of TBI, including headaches, is related to his military service. This additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim that the Veteran's residuals of TBI, including headaches, may be related to his in-service jeep accident. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA's duty to provide an examination). The evidence is, therefore, new and material, and the claim of service connection for residuals of TBI, including headaches, is reopened. B. Low Back Disability In a January 2010 rating decision, the RO denied service connection for a low back disability, including DJD, on the basis that the disability was neither incurred in nor caused by active military service. The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the January 2010 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c); Bond, 659 F.3d 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the January 2010 rating decision included some STRs, VA treatment records, and the Veteran's statements. Specifically, VA treatment record showed treatment for a back disability. Relevant evidence received more than one year since the January 2010 rating decision includes the Veteran's November 2011 claim, additional STRs, VA and private treatment records, a January 2012 VA examination report, a March 2012 VA addendum opinion, lay statements, the August 2014 Board hearing transcript, and the Veteran's testimony and statements. In particular, the additional STRs, as noted above, reveal that he was involved in a jeep accident during service. The Veteran's testimony and his statements suggest that the Veteran's back disability is related to an in-service jeep accident. Furthermore, the March 2012 VA addendum opinion discusses whether the Veteran's currently diagnosed back disability is related to his military service. This additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by suggesting that the Veteran's low back disability, including DJD, may be related to his active military service. See Shade, 24 Vet. App. 110. Accordingly, the claim for service connection for a low back disability, including DJD, is reopened. ORDER New and material evidence is sufficient to reopen a claim of entitlement to service connection for residuals of TBI, including headaches, has been received; to this limited extent, the appeal is granted. New and material evidence is sufficient to reopen a claim of entitlement to service connection for a low back disability, including DJD, has been received; to this limited extent, the appeal is granted. REMAND The Veteran claims that his residuals of TBI and low back disability were caused as a result of an in-service jeep accident. See, e.g., Board hearing transcript dated August 2014. He explained that during his military service, he was a back seat passenger in a jeep on his way to guard duty, early in the morning. While riding in the jeep, he fell asleep and then fell out of the jeep, injuring his head and low back. Subsequently, he sought treatment at a Vietnam hospital for a concussion and required stitches in his head. Thereafter, he indicated, that he was placed on light duty for a week. The Veteran's available STRs reveal that in December 1971 he fell out of a moving jeep, hit his head, and sustained a concussion. See, e.g., STRs dated December 1971. The available STRs were absent any notation of back pain. To this end, the evidence suggests that there are additional STRs that have not been obtained and associated with the claims file. For instance, in a December 1992 rating decision, the RO indicated that the Veteran's STRs "appear to be incomplete," as the available STRs were a January 1971 entrance examination and a March 1973 separation examination report. Similarly, available STRs currently of record include the entrance and separation examination reports and a few STRs submitted on behalf of the Veteran. See STRs dated December 1971. Also, during the January 2012 VA examination, the VA examiner indicated that there was an issue of missing STRs and it "appears to involve minor discrepancy in SSN which may have resulted in misfiling of the same." Furthermore, the evidence also indicates that the Veteran served in the Army National Guard. See, e.g., rating decision dated December 1992. Therefore, a remand is necessary to obtain the Veteran's complete STRs from his military service to include his active duty service, as well as, through his Reserves service. A March 2010 letter reveals that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). However, SSA records have not been associated with the claims file. Accordingly, upon remand, SSA records should be obtained, as these records are potentially pertinent to his pending claims. Tetro v. Gober, 14 Vet. App. 100, 108 09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). The Veteran was afforded VA examinations in January 2012 and addendum opinions were obtained in January 2012 and March 2012 to determine the nature and etiology of the residuals of TBI, including headaches, and low back disability, including DJD. However, as indicated above, STRs appear to be incomplete and additional pertinent medical evidence was submitted by the Veteran after the VA opinions were obtained. See, e.g., Veteran's submitted post-service medical evidence dated from 1982 through 1992. Therefore, once attempts have been made to obtain outstanding STRs and SSA records, addendum opinions are necessary. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2015) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Lastly, all outstanding relevant medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Veteran has received, including back treatment in Washington, DC. See VA treatment record dated August 2014 (noting that the Veteran sought treatment in Washington, DC, for back pain.). All such available documents should be associated with the claims file. 2. Obtain records of treatment that the Veteran may have received at any VA health care facility from 1974 to 1982 and since August 2014. All such available documents should be associated with the claims file. 3. Contact the Social Security Administration and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records relied upon to make the decision. All efforts to obtain these records must be documented. Efforts to obtain these records should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile. 4. Contact the appropriate records custodians in order to obtain any additional service treatment records from the Veteran's service in the U.S. Army from May 1971 to May 1973 and the Army National Guard from 1974 to 1998. See Board's hearing transcript, pg 5, dated August 2014. If said records cannot be obtained, provide the Veteran with specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the Veteran's claims file. The physician must provide a rationale for any opinion given. The physicians are advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physicians reject the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 5. Then refer the claims file to a VA physician to obtain an opinion to determine the nature and etiology any of residuals of TBI, including headaches. Following a review of the claims file, the physician should provide the following opinion: Whether it is at least as likely as not (50 percent probability or greater) that residuals of TBI, including headaches, had its clinical onset during his military service or is otherwise related to service. In rendering the opinion above, the physician should consider (i) the Veteran's statements, in which he relates his residuals of TBI to his in-service jeep accident; (ii) the July 2013 lay statements, and (iii) STRs. 6. Then, refer the claims file to a VA physician to obtain an opinion to determine the nature and etiology of any low back disability, including DJD. For each low back disability identified, including DJD, the physician should opine whether it is at least as likely as not (50 percent probability or greater) had its clinical onset during his military service or is otherwise related to service. In rendering the opinion above, the physician should consider (i) the Veteran's statements, in which he relates his back disability to his in-service jeep accident; (ii) the July 2013 lay statements, (iii) the November 1992 private treatment record noting the Veteran's back pain and in-service jeep accident. The physician must provide a rationale for any opinion given. The physicians are advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physicians reject the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 6. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. No action is required of the Veteran until notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in denial of the claim. 38 C.F.R. § 3.655 (2015). The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs