Citation Nr: 18157227 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-09 240 DATE: December 12, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a traumatic brain injury (TBI) is reopened. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. A June 2012 Board decision denied service connection for a TBI. Although the Veteran was notified of the Board decision, he did not appeal, and neither the Veteran nor his representative filed a motion for reconsideration. 2. The evidence submitted by the Veteran subsequent to the June 2012 Board decision is neither cumulative nor redundant of the evidence previously submitted into the record. CONCLUSIONS OF LAW 1. The June 2012 Board decision is final. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 20.1100, 20.1104. 2. New and material evidence sufficient to reopen the claim of service connection for a TBI has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Army from September 6, 1973 to November 2, 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s service connection claim for a TBI. A June 2012 Board decision previously denied service connection for a TBI. In March 2017, the Veteran submitted a Form 2142 declining a Board hearing. New and Material Evidence Board decisions from which an appeal is not perfected become final. See 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. §§ 20.1100, 20.1104. A June 2012 Board decision denied service connection for a TBI on the basis that the record contained no evidence of a nexus between the Veteran’s current disability and his active military service. Although the Veteran was notified of the Board’s decision, he did not appeal, nor did the Veteran or his representative file a motion for reconsideration. Accordingly, the June 2012 Board decision is final. See id. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received sufficient to reopen the denied claim before addressing the merits of the claim, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question of reopening. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence is defined as evidence not previously submitted to agency decisionmakers and which is 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. See 38 C.F.R. § 3.156(a). In order to be considered material, the new evidence must, either by itself or when considered with previous evidence of record, (1) relate to an unestablished fact necessary to substantiate the claim; and (2) raise a reasonable possibility of substantiating the claim. See id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate any element of the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See id. However, a new theory of entitlement does not automatically reopen a previously denied claim. See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, a June 2012 Board decision denied service connection for a TBI on the grounds that clear and unmistakable evidence established that the Veteran had a seizure disorder prior to entering service, thereby rebutting the presumption of soundness. Because the Veteran did not perfect an appeal or file a motion for reconsideration, the June 2012 Board decision denying service connection for a TBI became final. See 38 U.S.C. § 7104(b); 38 C.F.R. §§ 20.1100, 20.1104. The Veteran then filed another claim for a TBI in March 2014, which he contends was caused by the same in-service personal assault. Accordingly, the Board finds the Veteran’s March 2014 TBI claim and the TBI claim adjudicated by the Board’s June 2012 decision to be the same claim, and, thus new and material evidence is required to reopen the Veteran’s service connection claim. See Boggs, 520 F.3d at 1336. The evidence of record at the time of the June 2012 Board decision included copies of the Veteran’s service treatment records, the 2011 Statement of the Veteran’s wife, private treatment records from August 2008 to November 2011, and two VA examinations dated April 2009 and October 2011. Since the issuance of the June 2012 Board decision, the Veteran has provided additional evidence material to his TBI claim in the form of three lay statements asserting that the Veteran was healthy prior to entering the service, and that he did not suffer from a pre-existing condition. Because this evidence did not exist in the record at the time of the June 2012 Board decision, it has not previously been submitted to agency decisionmakers and is thus neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the Veteran’s claim. In addition, this new evidence is also material to the previously unestablished fact of the presumption of soundness and could therefore reasonably substantiate that element of the Veteran’s service connection claim. Accordingly, the Board finds that reopening the Veteran’s claim for service connection for a TBI is warranted. REASONS FOR REMAND Entitlement to service connection for a TBI is remanded. Although the Board regrets the additional delay, the Board finds that further development is required before the claim on appeal can be decided. The Veteran contends that the symptoms of his current brain disability, to include a TBI, were caused by an in-service injury that the Veteran suffered when he was thrown out of his bunk bed and onto the floor during basic training. The evidence of record includes a notation from a VA psychiatrist who concluded the Veteran had a history of post-concussive syndrome, and further noted that the Veteran’s past head injury is likely contributing to his current diagnosis of severe depression with psychotic features. Evidence of record also includes MRI results which indicate the Veteran currently suffers from cerebellar atrophy. In addition, the Veteran’s VA treatment records also reflect that he currently suffers from the following symptoms: dizziness, vertigo, frequent falls, weakness, unsteady gait/ataxia, dysmetria, headaches, depression, and psychosis. The Veteran underwent an April 2009 VA examination which concluded that the Veteran’s preexisting seizure disorder predated his military service, and any seizures suffered during service were a natural progression of the Veteran’s preexisting epileptic condition. The April 2009 VA examiner did not address whether the Veteran’s current symptoms were related to his military service, or to the personal assault the Veteran reports he suffered while in service. The Veteran underwent a subsequent VA examination in October 2011 which diagnosed the Veteran with muscle contraction headaches and found no current evidence of a TBI or concussion. In addition, the October 2011 VA examiner found no specific evidence in the record that the Veteran had a concussion or TBI while on active duty, and therefore concluded that the Veteran’s current symptoms are not caused by or the result of his previous military service. However, neither examination addresses whether the Veteran’s current symptoms are related to his report of an in-service personal assault, thereby failing to address a potential theory of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Additionally, the October 2011 VA examination states that the record contains no specific evidence that the Veteran had a concussion or traumatic brain injury while on active duty, effectively disregarding the Veteran’s report of an in-service personal assault resulting in a fall from a bunk bed onto the floor. In light of the foregoing, the Board finds that the current evidence of record is insufficient to determine the etiology of the Veteran’s current brain disability, and in the absence of sufficient clarification, the Board lacks the requisite medical expertise to determine its nature and etiology. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board finds that another examination is necessary to determine whether the Veteran’s current symptoms are related to his active military service and thus entitle him to service connection on any basis. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all outstanding VA and private treatment records, since November 1973. 2. After obtaining all necessary records, forward the claims folder to a suitable expert in neurological disorders such as traumatic brain injury and cerebellar atrophy to determine the nature and etiology of the Veteran’s current condition. The Veteran need not be scheduled for another physical examination unless such examination is considered necessary by the examiner. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information: (a) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s current symptoms are due to or otherwise causally or etiologically related to his military service. In this regard, the examiner should note that a rationale is required for any etiological opinion. In providing these opinions, the examiner should presume the following: (i) that the Veteran suffered from an in-service personal assault that resulted in a fall from the top of a bunk bed onto the floor; and (ii) that the Veteran entered military service in September 1973 with no pre-existing neurological condition. In providing these opinions, the examiner should address the following: (i) MRI results indicating cerebellar atrophy; (ii) November 2009 VA treatment records noting that the Veteran suffers from post-concussive syndrome; and (iii) May 2009 VA treatment records noting that the Veteran’s past head injury is likely contributing to his current depression and headaches. A rationale is required for any etiological opinion. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel