Citation Nr: 1806737	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-20 339	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to special monthly compensation (SMC) based on housebound status.  

2.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a neurological disorder to include Traumatic Brain Injury (TBI) and hydrocephalus as due to mold exposure.  

3.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches, to include as residuals of TBI and as secondary to hypertension.  

4.  Entitlement to service connection for a neurological disorder to include Traumatic Brain Injury (TBI) and hydrocephalus as due to mold exposure.  

5.  Entitlement to service connection for headaches, to include as residuals of TBI and as secondary to hypertension.  



REPRESENTATION

Appellant represented by:	James M. McElfresh II, Agent


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse.


ATTORNEY FOR THE BOARD

K. Wysokinski, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from November 1971 to June 1976.  

This matter comes to the Board of Veterans' Appeals (Board) from September 2011, March 205, and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

This matter was most recently before the Board in February 2017 when it was remanded so that the Veteran could present testimony at a hearing before the Board.  The Veteran presented sworn testimony before the undersigned Veterans' Law Judge in September 2017.  The transcript of this hearing is of record.  

In the course of his hearing, and through recently submitted evidence, the Veteran has expanded the scope of his service connection claims by providing more information that may connect his medical conditions to his service.  Consequently, the Board has modified the issues on appeal accordingly. 


The Veteran raised several issues which are not yet certified to the Board in his September 2017 correspondence entitled "Report for Hearing on September 11, 2017."  As many of the issues raised have not been considered or otherwise addressed by the regional office, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).    

While the Board finds that reopening of the headache and brain disease claims is appropriate based on the Veteran's presentation of new and material evidence, these issues along with the issue of entitlement to special monthly compensation are remanded to the AOJ and are therefore addressed in the REMAND portion of the decision below.  


FINDINGS OF FACT

1.  The Veteran was denied service connection for headaches and hydrocephalus in a March 2006 rating decision and the Veteran ultimately withdrew his appeal for that rating decision.

2.  The evidence associated with the record subsequent to the March 2006 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran's claims.  


CONCLUSIONS OF LAW

1.  The March 2006 rating decision that denied service-connection for headaches and hydrocephalus is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

2.  New and material evidence has been received to reopen claims of entitlement to service connection for a headaches and hydrocephalus.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board finds that the Veteran has presented new and material evidence so as to reopen his previously denied claims by introducing evidence of his in-service head injury along with treatise evidence expanding on the nexus between mold and his hydrocephalus.  

Rating actions are final and binding based on evidence on file at the time the Veteran 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 Veteran has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement ("NOD") 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), (c); 38 C.F.R. §§ 20.200-20.202, 20.302(a).

Here, the record shows that the Veteran withdrew his appeal for service-connection by way of correspondence from his representative in October 2007.  Thus, the March 2006 rating decision became final based on the evidence then of record.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103.

Where a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered if new and material evidence is presented as to that claim.  38 U.S.C. § 5108; 38 C.F.R. 
§ 3.156(a).  New evidence means evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with 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).

New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims.  38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010).  For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The Board finds that new and material evidence has been presented such that the Veteran's service connection claims should be reopened.  The Veteran's claims were initially denied on the basis that there was inadequate evidence connecting the Veteran's headache and hydrocephalus to his service. 

Pertinent evidence received since the March 2006 rating decision include the Veteran's hearing testimony regarding an in-service injury, and treatise evidence regarding hydrocephalus.  

The Board finds that this evidence is new and material.  The evidence is "new" because it was not of record at the time of the March 2006 rating decision, and is not cumulative or redundant of the evidence previously of record.  The evidence is "material" because it relates to an unestablished fact necessary to substantiate the claim, (i.e., the link between Veteran's present medical conditions and the Veteran's service) and meets the low threshold of raising a reasonable possibility of substantiating the claim.  Accordingly, reopening of the claims of entitlement to service connection for headaches and hydrocephalus is warranted.  


ORDER

The previously denied claims of entitlement to service connection for headaches and hydrocephalus are reopened.   


REMAND

Although the Board sincerely regrets the additional delay that will result from remanding this case again, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  

The case must be remanded so that the Veteran can undergo VA medical examinations to address the newly presented evidence of an in-service vehicle accident, as well as the submitted evidence concerning a link between hydrocephalus and mold exposure.  At his hearing the Veteran indicated that he sustained a head injury while in-service in 1972 as a result of a vehicle accident.  As the Veteran points out, the records of this accident are not presently part record.  The Board would benefit from a medical examination addressing what impact this accident may have had on the Veteran's present medical disability, as well as development to obtain these records.  The Veteran suggested that the records were available at the time of his 2005 VA medical examinations; however the reports of the examinations do not mention the accident.  Therefore attempts must be made to obtain records from Keesler Air Force Base to determine whether an accident occurred.  The Veteran may also submit additional evidence from himself or others who were aware of the accident.  Any such evidence would be helpful if evaluated by medical experts who could opine as to whether the Veteran's medical conditions are related to the in-service injuries, mold exposure, or his hypertension as suggested by June 2005 VA medical examination.  

As the additional development on the claims of service connection may lead to the Veteran being evaluated with a higher rating for the newly established benefits, he may meet the schedular criteria for SMC.  Consequently his SMC claim must be remanded as it is intertwined with the other claims.  

Accordingly, the case is REMANDED for the following action:


1.  Obtain any outstanding VA treatment records.  Any such records should be associated with the claims file.  

2.  Ask the Veteran to identify any private medical care providers who treated him for the conditions on appeal.  Make reasonable efforts to secure the necessary releases and to associate any such identified records with the claims file.

3.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his medical conditions, in-service mold exposure, and the in-service accident.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

4.  Make reasonable efforts to obtain records relevant to the vehicle accident the Veteran indicated occurred while the Veteran was at Keesler Air Force Base in 1972.  

5.  After completing the above development, schedule the Veteran for appropriate VA medical examinations to determine the nature and etiology of the conditions addressed in the remand, including any appropriate TBI examination, any examiner must review the claims file and must note that review in the report.  Any indicated studies should be performed.  The supporting rationale for all opinions must be provided.  

The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology and the scientific evidence submitted by the Veteran, and undertake any indicated studies.  Then, based on the results of the examination, the examiner is asked to address each of the following questions:

(a)  Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures to mold or in-service head trauma including a TBI from an alleged in-service vehicle accident.  Please note the evidence submitted by the Veteran concerning hydrocephalus and mold exposure.  

(b)  If not directly related to service on the basis of question (a) is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)?  Please note the June 2005 VA examination in which the doctor opines that the Veteran's headaches could be related to his hypertension.  

(c)  If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies)?  If yes, was that increase in severity due to the natural progress of the disease? Please note the June 2005 VA examination in which the doctor opines that the Veteran's headaches could be related to his hypertension.  

In answering all questions (a) to (c), please articulate the reasons underpinning your conclusions.  That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion.  A report of the examination should be prepared and associated with the Veteran's VA claims file.

The appropriate examiner is also requested to opine as to which of the Veteran's symptoms are related to his somatization and psychiatric disability, his hypertension, as well as any of the conditions on appeal- TBI, headaches and hydrocephalus.

The appellant 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).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2014).




______________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs