Citation Nr: 1807868	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  15-11 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for residuals of a head injury, to include headaches and dizziness.  

2.  Entitlement to service connection for residuals of a head injury, to include headaches and dizziness.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran, his wife and his daughter


ATTORNEY FOR THE BOARD

D. Smart, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1949 to September 1952.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

The Veteran testified before the undersigned Veterans Law Judge in November 2017 and a copy of that transcript is of record.  

This appeal was processed using the Veterans Benefits Management System (VBMS).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a) (2) (2012).

The issue of entitlement to service connection for a head injury, with residuals of headaches and dizziness is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The January 1993 Board decision is final.  

2.  Evidence submitted since the January 2013 Board decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for residuals of a head injury, to include headaches and dizziness.  


CONCLUSIONS OF LAW

1.  The September 1993 Board decision is final.  38 U.S.C. §§ 7103, 7104 (a) (2012); 38 C.F.R. §§ 20.1100, 20.1104 (a) (1).

2.  New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for residuals of a head injury, to include headaches and dizziness.  38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156 (a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

VA's duty to notify was satisfied by a letter that was sent to the Veteran in July 2013.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist.  38 U.S.C. § 5103A.

New and Material Evidence

Under 38 U.S.C. § 5108, "[i]f 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." 

Under 38 C.F.R. § 3.156 (a), evidence is considered "new" if it was not previously submitted to agency decision makers.  "Material" evidence is evidence which, 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.  For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion.

Historically, the Veteran was denied entitlement to service connection for residuals of a head injury, to include headaches and dizziness in July 1987, October 1987 and March 1990 rating decisions.  The Veteran appealed the March 1990 rating decision.  In a January 1993 decision, the Board denied entitlement to service connection for residuals of a head injury, to include headaches and dizziness.  The Board concluded that there was not any evidence, other than the Veteran's assertions, that his headaches resulted from an in-service injury.  

Unless the Chairman of the Board orders reconsideration of the decision, the Board decision is final on the date stamped on the face of the decision.  See 38 C.F.R. § 20.1100.  The record reflects that the Veteran filed a motion for reconsideration of the January 1993 Board decision in July 1993.  However, after reviewing the Veteran's motion for reconsideration, the Board determined that the motion did not demonstrate that the Veteran was denied due process of law, that the available evidence was misstated, that the incorrect law was used to resolve the issue on appeal, or that the law was misapplied.  As such, the Board denied the Veteran's motion for reconsideration in an October 1993 decision.  Given that the Veteran's motion for reconsideration was denied, the Board decision is final.  See 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017).

The Veteran filed a claim to reopen in August 2012.  In a November 2017 DBQ, a private physician noted that the Veteran had headaches that were due to his "1950 Korean War concussion."  The Board finds that this evidence is both new and material as it, when taken together with the other evidence of record, at least triggers the duty to assist by providing a medical opinion.  As new and material evidence has been received, the previously denied claim is reopened.  The Veteran's appeal to this extent is allowed.


ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a head injury, to include headaches and dizziness; the appeal is granted to this limited extent.


REMAND

The Veteran contends that his residuals of a head injury, to include headaches and dizziness, are related to an in-service head injury.  A November 2017 private DBQ noted that the Veteran had recurrent right sided headaches dating back to his "young adult years".  The physician opined that the Veteran's headaches were due to his "1950 Korean War concussion."  The basis for the opinion was that the physician "took [an] accurate past medical history."  The opinion provided is inadequate because the physician provided no supporting rationale.  See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (citing Stefl v. Nicholson, 21 Vet.App. 120, 124   (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.")).  This is significant because the Veteran's medical history is also positive for evidence of nonservice-related head injuries.  The Board, however, finds that the low threshold of McLendon has been met and the Veteran should be afforded a VA opinion to determine the nature and etiology of his claimed residuals of a head injury, to include headaches and dizziness.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain VA treatment records dated April 2016 to the present.  

2. Obtain a VA opinion by a neurologist (M.D.) to determine the nature and etiology of the Veteran's claimed residuals of a head injury, to include headaches and dizziness.  The Veteran's file should be made available for review by the neurologist.  The neurologist should review the claims folder and this fact should be noted in the accompanying medical report.  

The neurologist should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed residuals of a head injury, to include headaches and dizziness, are related his military service, to include the claimed in-service head injury?  

For purposes of this opinion the neurologist is asked to do the following: (1) note that the Veteran's service treatment records are unavailable; (2) assume that the Veteran sustained a head injury during service BUT the likely type and severity of the head injury is left for the neurologist to determine based on the neurologist's expert knowledge and review of the total record; (3) review the morning reports/admission cards/Surgeon General report; (4) review the May 1979 report of electroencephalogram (EEG); (5) review the May 1979 letter from W.D.A., M.D. to J. M.L., M.D.; (6) review the March 1987 claim (VA Form 21-526); (7) review the March 1987 Report of Accidental Injury (VA Form 21-4176); (8) review the March 1987 Veteran's statement; (9) review the March 1987 witness statement; (10) review the September 1987 RO hearing testimony; (11) review the August 1989 Neurological Consultation of Dr. M.C.; (12) review the lay statements from Veteran's uncles; (13) review the September 1991 RO hearing testimony; and (14) review the November 2017 DBQ. 

A fully articulated medical rationale for the opinion expressed must be set forth in the medical report.  

3. After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim 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.


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).

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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.A. §§ 5109B, 7112 (West 2014).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs