Citation Nr: 18147069 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-27 985A DATE: November 2, 2018 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for temporal lobe dysfunction, claimed as a traumatic brain injury (TBI). REMANDED The issue of entitlement to service connection for temporal lobe dysfunction, claimed as a TBI, is remanded. FINDINGS OF FACT 1. Final January 1990 and March 1991 Board decisions denied the Veteran’s claim for service connection for temporal lobe dysfunction because the evidence failed to demonstrate that the condition was related to his military service; although notified of the decisions, the Veteran did not express an intent to appeal the most recent decision, and new and material evidence was not added within one year of that decision. 2. Additional evidence associated with the claims file since the March 1991 Board decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate his claim for service connection for temporal lobe dysfunction, and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 1990 and March 1991 Board decisions that denied service connection for temporal lobe dysfunction are final. 38 U.S.C. § 7104, 7105(c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1100, 20.1103 (2017). 2. As evidence received since the March 1991 Board decision is new and material, the criteria for reopening the Veteran’s claim for service connection for temporal lobe dysfunction are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1948 to June 1952. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction has since been transferred to the RO in St. Petersburg, Florida. In August 2018, the Veteran and his daughter testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. New and material evidence has been received to reopen the claim for entitlement to service connection for temporal lobe dysfunction, claimed as a TBI. The Veteran contends that he has a brain disability due to his military service. Following a June 1988 RO denial, in a January 1990 decision, the Board found that the record did not support a finding that the Veteran had a disability that was related to service. The Veteran sought to reopen the claim in February 1990, which was again denied by the RO in a March 1990 rating decision. The Board denied the claim for a second time in March 1991. The Board decisions are final. 38 U.S.C. § 7103, 7105(a); 38 C.F.R. § 20.1100, 20.1103. Generally, a claim that has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Since the previous March 1991 Board decision, the Veteran has provided new testimony as to the chronicity and origin of the claimed brain disorder. Specifically, he testified that he hit his head on railroad tracks after he fell from a pole during service. See August 2018 Board Hearing Testimony p. 4. Additionally, he stated that he was currently diagnosed with atrophy of the left temporal lobe and continued to receive treatment for this condition. Id. at 7-8. The Board concludes that the evidence received since the prior final denial is new in that it was not previously of record. It is material because it relates to unestablished facts necessary to substantiate the claim. Specifically, the Veteran’s claim was previously denied based on the lack of a nexus between his brain disability and his military service. Since such time, the additional evidence reflects continued treatment for a brain disorder, as well as new lay statements regarding the in-service injury that are presumed credible for the purposes of evaluating the application to reopen the claim for service connection. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, given the evidence demonstrating a current disorder as well as the Veteran’s lay statements concerning chronicity of symptoms and the incident during active duty service, in accordance with Shade, the evidence received since the March 1991 Board decision is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, such evidence is not redundant of evidence previously of record, and relates to the unestablished fact of whether the Veteran has a current brain disability that was incurred in service. See 38 C.F.R. § 3.156(a). Accordingly, the issue of entitlement to service connection for temporal lobe dysfunction is reopened. 38 U.S.C. § 5108. REASONS FOR REMAND The issue of entitlement to service connection for temporal lobe dysfunction, claimed as a TBI, is remanded. The Veteran has not been provided with an examination for his brain disability. The current evidence of record indicates that the Veteran was previously diagnosed with left hemisphere dysfunction. See April 1986 Treatment Record from the Tallahassee Memorial Regional Medical Center. Furthermore, at the Board hearing, the Veteran testified that he injured his head on railroad tracks when he fell from a pole during service. He stated that he currently receives treatment for atrophy of the left temporal lobe. Thus, a remand is necessary to provide the Veteran with an examination to obtain an opinion concerning the etiology of his brain disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file all non-duplicative VA treatment records relating to the Veteran and his claim. 2. Schedule the Veteran for an appropriate VA examination to determine a confirmed diagnosis and etiology of his claimed temporal lobe dysfunction, with TBI. The claims file should be made available to and be reviewed by the examiner. The examiner should identify all current neurological diagnoses, to include a TBI or any related residuals. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed neurological disorder, to include TBI or residuals of TBI, is due to service. The fact that it cannot be definitively proven that the Veteran experienced a head injury during service (given the lack of service treatment records) cannot be the basis for rendering a negative nexus opinion A rationale is requested for any opinion given. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel