Citation Nr: 18143184 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-20 020 DATE: October 18, 2018 ORDER New and material evidence having been received, entitlement to service connection for the residuals of head trauma, to include headaches is reopened. REMANDED Entitlement to service connection for the residuals of head trauma to include headaches, is remanded. Entitlement to service connection for the residuals of head trauma to include an acquired psychiatric disorder, claimed as secondary to an in-service head trauma is remanded. FINDING OF FACT 1. In August 2012 and September 2013 rating decisions, the Appellant's claim for service connection for residuals of head trauma, to include headaches, was denied. 2. The Appellant did not appeal the September 2013 rating decision or submit any medical evidence within one year following it, and the decision became final. 3. Evidence received since the September 2013 decision is new and material regarding the issues of service connection for residuals of head trauma, to include headaches, as it contains evidence not previously considered that has some tendency to help link the Appellant’s current disabilities to his active military service. CONCLUSION OF LAW 1. The September 2013 rating decision that denied service connection for residuals of a head trauma, to include headaches, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the Appellant's previously denied claim of service connection for residuals of head trauma, to include headaches, have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant had active service in the United States Marine Corps from June 14, 1978 to July 14, 1978. These matters come before the Board of Appellants' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Appellants Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issues in the June 2014 rating decision were listed as service connection for headaches and service connection for depression. A review of the record reflects however, that the Veteran previously filed a claim for head trauma with headaches. Furthermore, he contends his headaches are a result of a head trauma during service. Accordingly, in order to afford the Veteran every possible consideration, the Board has recharacterized the claim to encompass the broader claim for a head trauma. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider “the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim”). 1. Whether New and Material Evidence has Been Received Sufficient to Reopen a Claim for Entitlement to Service Connection for the Residuals of an In-service Head Trauma. The Appellant contends he has residuals of a head trauma that occurred in service, to include headaches. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. Regardless of whether the AOJ reopened the Appellant's claim, the Board must decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. The Appellant seeks to reopen the previously denied claim of service connection for the residuals of an in-service head trauma. The claim was initially considered and denied by the RO in an August 2012 rating decision. The Appellant did not initiate an appeal of the decision denying service connection for the residuals of a head trauma, but did not submit new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b). The claim was readjudicated in a September 2013 rating decision that confirmed and continued the claim for service connection for residuals of head trauma, including a claim for service connection for headaches claimed as secondary to the reported in-service head trauma. The Appellant did not initiate an appeal of the decision denying service connection for the residuals of a head trauma. While a claim to reconsider was submitted in the appeal period, this did not include any argument or evidence which would constitute new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b). As such, the decision (denying service connection for residuals of head trauma, to include headaches) became final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the September 2013 rating decision, additional evidence has been received in the form of a private examination submitted by the Appellant in 2016. The private examination is new because it has not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, a basis to relate associate residuals of a head trauma to the Appellant’s period of active service, and raises a reasonable possibility of substantiating the claim. Specifically, in the August 2016 private examination, the Appellant reported an onset of symptoms following a head trauma. The private examiner then offered an opinion based on those reports. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for residuals of an in-service head trauma, to include headaches. See 38 C.F.R. § 3.156(a). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen service connection for the residuals of an in-service head trauma. REASONS FOR REMAND 1. The Claims for Residuals of a Head Trauma are remanded. Having reopened the Appellant’s claim for service for the residuals of a head trauma, to include headaches, a remand is necessary. Specifically, the duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of the prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). To date, the Appellant has not been provided a VA examination to determine the residuals of any in-service head trauma. Finally, as noted above, the Appellant has submitted medical evidence that suggests the claimed acquired psychiatric disorder is related to an in-service head trauma. Significantly, the opinion references medical records which are not yet associated with the claims file, such as residential treatment records and records from the Akron Community Based Outpatient Treatment center as early as 2001. The earliest VA records associated with the file are from 2007. The 2016 Statement of the Case suggests that further records are available and indicates that records from 1997 until 2014 were “reviewed electronically.” While these records were apparently electronically attached to the VA medical records database (CAPRI) (and apparently viewable within CAPRI via VistA Imaging)-they are not of record in the claims file. Access to these records is essential to the adjudication of the claim and accordingly, on remand complete records should be obtained. The matter is REMANDED for the following action: 1. Contact the Appellant and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for any residuals of an in-service head trauma. The letter should invite the Appellant to submit any pertinent medical evidence in support of his claim. If the Appellant provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 2. Associate all outstanding VA treatment records, including the complete records from May 30, 1997 until June 9, 2014, referenced in the Statement of the Case with the claims file. 3. After any records requested above have been associated with the electronic claims file, schedule the Appellant for a traumatic brain injury examination to ascertain the nature and likely etiology of any residuals of an in-service head trauma. The entire VA record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Appellant and review of the record, the examiner should provide opinions that respond to the following: Is it at least as likely as not (50 percent or greater probability) that the Appellant incurred an in-service head trauma with residuals? The examiner must discuss the Appellant's August 1977 Report of Medical History that indicated a head injury. Additionally, the examiner must discuss the August 2016 private examination. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel