Citation Nr: 1808004 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-21 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for an injury to the jaw. 2. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for an injury to the right eye with residual headache and dizzy spells. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971 and May 1973 to July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. FINDINGS OF FACTS 1. An October 1990 rating decision that declined to reopen claims for service connection for an injury to the jaw and an injury to the right eye with residual headache and dizzy spells is final. 2. Evidence received since the October 1990 rating decision is either duplicative or cumulative and is not so significant that it must be considered in order to fairly decide the merits of the claim of service connection for an injury to the jaw. 3. Evidence received since the October 1990 rating decision is either duplicative or cumulative and is not so significant that it must be considered in order to fairly decide the merits of the claim of service connection for an injury to the right eye with residual headache and dizzy spells. CONCLUSIONS OF LAW 1. The October 1990 rating decision declining to reopen the claims for service connection for an injury to the jaw and an injury to the right eye with residual headache and dizzy spells is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received since the October 1990 rating decision is not new and material; hence, the criteria for reopening the claim of service connection for an injury to the jaw have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Evidence received since the October 1990 rating decision is not new and material; hence, the criteria for reopening the claim of service connection for an injury to the right eye with residual headache and dizzy spells have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New Material Evidence Historically, a May 1980 rating decision denied claims for service connection for a jaw injury and for an eye injury with residual headache and dizzy spells on the basis of no current disability that was incurred in or related to service. The Veteran did not appeal that decision and that decision is final. 38 U.S.C. § 7105 (2012). In March 1984 the Veteran sought to reopen his claims for entitlement to service connection for injury to his jaw and eye. An October 1990 rating decision declined to reopen claims on the basis that new and material evidence had not been received. The Veteran did not appeal that decision and that decision is final. 38 U.S.C. § 7105 (2012). In September 2010 the Veteran again sought to reopen his claims. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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) (2017). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that its task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. Pertinent evidence added to the record since the final October 1990 RO decision includes VA medical center (VAMC) records, private medical records, the Veteran's May 2017 hearing testimony, statements from the Veteran regarding his claims, the Veteran's military personnel record, and duplicate copies of the Veteran's service treatment records (STRs). In March 2005, a private medical record indicated the Veteran had been in an automobile accident five years prior and had suffered a significant cervical injury. His past medical history did not include mention of any in-service injury or treatment. He was diagnosed with chronic osteoarthritis of the cervical spine and whiplash with myofascial pain, which began five years prior. In January 2011, the Veteran submitted a statement in support of claim in which he indicated that he had daily headaches from a fractured jaw and a head injury. He also reported blurred vision and problems chewing due to his jaw pain. In July 2012, a VAMC pain consult record showed the Veteran reported that he had been in an automobile accident in 2003 and that he had a cervical fusion as a result. He reported that he had bilateral neck, shoulder pain, and headaches. In August 2014, a VAMC pain clinic follow-up note indicated that the Veteran presented for a scheduled procedure for his neck pain. He reported that his pain became worse after a motor vehicle accident in 2003. He reported neck and occipital pain. He stated that his pain radiated to the top of his head and was associated with headache. In October 2015, a VA examination diagnosed the Veteran with myalgia of the muscles of mastication. The Veteran reported that he had injured his jaw while on active duty. He reported with complaints of bilateral temporal, frontal, and occipital headaches. He reported clenching his teeth when he got anxious. He described his jaw pain as an aching pressure that became sharp and radiated. He also reported difficulty chewing his food because of missing and painful teeth. Upon examination, he was not found to have any conditions regarding his mandible, maxilla, teeth, mouth, osteomyelitis, or any tumors or neoplasms. X-rays taken indicated that he his maxilla and mandible were intact with contours normal with no signs suggestive of a mandibular fracture. He was found to have generalized mild to moderate bone loss with his remaining maxillary teeth. The X-ray impression was no radiographic suggestion of jaw fracture. The examiner opined that the Veteran's condition was not caused by or a result of his in-service jaw injury. The examiner stated that following the Veteran's in-service jaw injury, there were no records which documented a further diagnosis of any specific injury or follow-up for pain associated with that injury. The examiner also noted that there was no documentation of any jaw condition or problem on the Veteran's discharge from active service. The examiner opined that the Veteran's dental findings, that is of primary pain and headache complaint, were most likely related to his myalgia which was perpetuated by a clenching habit as well as multiple missing teeth due to the years of chronic dental disease and no routine dental treatment. In May 2017, the Veteran testified before the undersigned Veterans Law Judge. He stated that he fell coming down the stairs from the barracks and hit the right side of his head above his eyebrow. He stated that he had stitches above his eyebrow and that he has had problems since that injury. He reported that he had stitches in for two weeks and that from the injury he began to suffer blurred vision, dizziness, and headaches. He reported that a private treating physician, who is no longer in practice, told him that these conditions were related to his in-service head injury. In regards to his jaw injury, the Veteran stated that he was struck in the jaw by a blower hose while stationed onboard a ship. He immediately went to sick call, whereupon he had an X-ray and was diagnosed with a fractured mandibular. He also testified that he reported to sick call when his ship came to port, but that he was told there was nothing that could be done for him. He reported that he has residual problems from the injury, including bad teeth, a cracking jaw, severe headaches, and that his mouth hurts. He also reported having a hard time eating. He stated that his doctors could not attribute his problems to his jaw injury. The Board notes that the regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that the new evidence associated with the claims file since the final October 1990 rating decision does not relate to any unproven element of the previously denied claims. With regard to the claim for injury to the jaw, none of the evidence submitted shows that the Veteran has a disability as a result of his in-service jaw injury. None of the new evidence suggests that he has been diagnosed with a disorder or disability attributable to his in-service jaw injury. Specifically, the October 2015 VA examination did not find that the Veteran had a jaw fracture or that any dental condition was due to the jaw injury in service. Thus, though the Veteran did sustain a jaw injury in-service, the new evidence does not establish that any disorder or disability was attributable to that injury, and does not constitute material evidence. Further, the Veteran's statements, including his hearing testimony, regarding his in-service jaw injury are merely reiterations of prior contentions and thus are duplicative of evidence previously of record and cannot form the basis for reopening. In regards to the Veteran's injury to the right eye with residual headache and dizzy spells, none of the new evidence suggests that the Veteran's reported injury are etiology related to his complaints of headaches or dizzy spells. Indeed, the VAMC records indicate that the Veteran, himself, related his headaches and occipital pain to a motor vehicle accident. Those records are also void of any mention of an in-service head or eye injury or any residuals of such an injury. Additionally, though the Veteran did submit private medical records diagnosing him with whiplash with myofascial pain, the records did not relate that condition to the Veteran's active service, or any injury sustained in his active service. Thus, the records, while new, do not constitute material evidence. Again, the Veteran's statements, including his hearing testimony, are merely reiterations of prior contentions, and thus, are duplicative of evidence previously of record and cannot form the basis for reopening. While the Veteran is competent to report his symptoms, the etiology of a headache disorder, dizziness, or the diagnosis of a jaw disability are not the type of disabilities that a lay person can provide competent evidence on questions of etiology or diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Accordingly, the Board finds that new and material evidence has not been submitted and the claims for service connection of an injury to the jaw and injury to the right eye with residual headache and dizzy spells are not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). ORDER As new and material evidence has not been received, the request to reopen the claim for service connection for an injury to the jaw is denied. As new and material evidence has not been received, the request to reopen the claim for service connection for an injury to the right eye with residual headache and dizzy spells is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs