Citation Nr: 18145604 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-27 221 DATE: October 29, 2018 ORDER New and material evidence has been received sufficient to reopen the Veteran’s service-connection claim for residuals of a concussion (now claimed as traumatic brain injury (TBI)). REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDING OF FACT 1. In a November 1972 rating decision, the RO denied the Veteran’s service-connection claim for residuals of a concussion. The Veteran did not appeal the decision, nor did he submit new and material evidence within one year. 2. Since November 1972, VA has received new and material evidence that is not cumulative or redundant of the evidence of record at the time of the last prior final denial and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 1972 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the November 1972 rating decision is new and material, the criteria for reopening the claim for service connection for residuals of a concussion (now claimed as TBI) are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington which denied service connection for TBI. The Board acknowledges receipt of the August 2018 IHP brief submitted by the Veterans attorney arguing the issue of entitlement to an earlier effective date for TDIU. While the Veteran initiated an appeal on the issue, he did not perfect it by filing a timely VA Form 9 after the December 2016 Statement of the Case (SOC) was issued. As such, the issue is not in the Board’s jurisdiction and it will be discussed no further. The Veteran requested to appear at a hearing before a Veterans Law Judge. This hearing was scheduled for June 2018. In the weeks prior to the hearing, the Veteran indicated he wished to cancel his hearing request. As such, the hearing request is deemed withdrawn. New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claims for service connection for residuals of an in-service head injury (now claimed as TBI). The Regional Office (RO) denied the Veteran’s original service-connection claim for residuals of a concussion in a November 1972 rating decision. The RO concluded that at that time, based on the results of a medical examination, that not residuals existed. The Veteran did not appeal, nor did he submit new and material evidence within one year. Accordingly, the November 1972 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the November 1972 rating decision includes a December 2012 QTC fee-based examination, in which the examiner diagnosed the Veteran with a TBI, occurring in 1969 with residuals of visual impairment, hearing loss, headaches, and occasional dizziness upon standing. As this evidence pertains to whether the Veteran has a current disability, it is new and material, and serves to reopen the claim. To this extent only, the appeal is granted. REASONS FOR REMAND Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. The Veteran seeks entitlement to service connection for a TBI, or residuals of a TBI. Additional development must be undertaken before these claims can be adjudicated on the merits. The Veteran contends that a physical attack he suffered in 1969 while in service has led to cognitive difficulties, dizziness, loss of smell and headaches. The Veteran believes the symptoms he is suffering from are related to TBI and not PTSD, for which he was awarded service connection in October 2012. The Veterans military record provides evidence of an attack that led to the Veteran suffering from a broken nose, with subsequent dizziness, blurring of vision and headaches. Service records show facial trauma with deviation of the nose and bilateral orbital ecchymoses. The medical evidence of record is unclear as to whether the Veteran has a TBI, or TBI residuals. Although a December 2012 QTC fee-based examiner diagnosed TBI, a subsequent opinion suggested that although the Veteran suffered an in-service concussion, the Veteran’s claimed symptoms are all due to service-connected PTSD. The Board adds that, as pointed out by the RO, the examinations and opinions obtained relating to a potential TBI have been administered by individuals without the correct expertise. Indeed, in July 2016, the Veteran was notified by the Seattle Regional Office, that his initial TBI exams were insufficient as they were not conducted by a neurologist, psychiatrist, physiatrist, or neurosurgeon. The Notification offered the Veteran the opportunity to undergo a new TBI exam by an appropriate specialist if the Veteran requested a new exam within one year from the date of the letter. It does not appear that the Veteran responded to the letter. The Veteran has since continued his appeal. On remand, the Board believes that the Veteran should be provided another opportunity to appear at a VA TBI examination with the appropriate specialist to clarify his current diagnosis, if any, and to determine if there is any relationship between his current symptoms and his in-service head injury. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA neurological examination conducted by a specialist in VA TBI examinations (a psychiatrist, physiatrist, neurosurgeon or neurologist) to determine the nature and etiology of any current residuals of his described head injury sustained in service. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should take a history from the Veteran as to the progression of his claimed disabilities. Upon review of the record, interview and examination of the Veteran, the examiner should respond to each of the following: a. Is it at least as likely as not (a probability of 50 percent or greater) that the claimed impairment, including, but not limited to, headaches, vision, dizziness and/or cognitive problems, had their onset in service, are related to the head injury in service, or are otherwise the result of a disease or injury in service? If there is no diagnosis of a TBI or any residuals of an in-service head injury, this should be made clear with a medical explanation as to how this conclusion was reached. b. As PTSD and TBI/head injury residuals often share similar symptomatology, the examiner should attempt to differentiate the Veteran’s PTSD and TBI symptoms, to the extent possible. The examiner is advised that the Veteran is competent to report an in-service head injury, his symptoms and history, and such reports, including those of a continuity of residuals of a head injury since service, must be considered in formulating any opinions. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 2. After completing the above, readjudicate the Veteran's appeal based on the entirety of the evidence. If the appeal remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. DuPree, Associate Counsel