Citation Nr: 1808406 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-20 565 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for residuals of head injury, claimed as traumatic brain injury (TBI)). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to April 1975. This appeal to the Board of Veterans' Appeals (Board) arose from November 2012 rating decision in which the RO, inter alia, denied service connection for traumatic brain injury (TBI). The Veteran filed a notice of disagreement (NOD) in September 2013. A statement of the case (SOC) was issued in April 2014 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2014. In August 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. Most recently, in a March 1999 rating decision, the RO declined to reopen a previously denied claim for service connection residuals of a head injury, claimed as TBI. Although notified of the denial in a March 1999 letter, the Veteran did not appeal that denial, and no pertinent exception to finality applies. 3. Evidence associated with the record since the March 1999 rating decision, when considered by itself or in connection with evidence previously assembled, is either not new, or does not relate to an unestablished fact necessary to substantiate the claims for service connection for residuals of head injury claimed as TBI, or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1999 rating decision in which the RO declined to reopen the claim for service connection for residuals of a head injury, claimed as TBI is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. As pertinent evidence received since the May 2008 rating decision is not new and material, the requirements for reopening the claim for service connection for TBI are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is received, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b)). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As regards an application to reopen a previously denied claim, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. However, a November 2014 VA General Counsel opinion held that upon receipt of a claim to reopen a previously denied claim, VA is not required to provide notice of the information and evidence necessary to substantiate the particular factual element(s) that were found insufficient in the previous denial of the claim. VAOPGCPREC 6-2014 (Nov. 21, 2014). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A November 2011 pre-adjudication letter provided pertinent notice to the Veteran in connection with the matter decided herein. The letter indicated what information and evidence was needed to substantiate the claims, to include the requirements for reopening a previously denied claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates--in the event the claim is reopened, and service connection granted-as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment and personnel records, and VA treatment records. Although, as noted below, the AOJ determined that new and material evidence had not been received and examination reports, and lay statements in support of the claim. VA examinations and/or medical opinions have also been obtained where necessary. The Board finds these examination and opinion reports contain sufficient evidence to adjudicate the merits of the Veteran's service connection claim decided herein, especially when considered in conjunction with the other lay and medical evidence of record. As for the August 2017 Board hearing, the undersigned VLJ identified the issue on appeal. Pertinent to this matter, testimony was offered with respect to the Veteran's experiences during service, and information was elicited regarding the Veteran's in-service injury and treatment, the basis for the prior denial, and the requirement of presenting new and material evidence to reopen the claim. Although the undersigned did not explicitly suggest the submission of any specific additional evidence, on these facts, such omission was harmless. Nothing gave rise to the Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103 (c)(2), to include identification of any prejudice in the conduct of the hearing. The hearing was legally sufficient. See 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim herein decided. As such, the Veteran is not prejudiced by the Board proceeding to a decision on the claim herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006)( rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis At the time of each prior denial and currently, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The Veteran originally filed a service connection claim for a head injury in December 1983. On appeal of that decision, in a December 1985 decision, the Board denied service connection for residuals of a head injury, because medical evidence did not establish that an in-service head injury resulted in any disability. The Veteran did not appeal the Board decision. Most recently, in March 1999 decision, the RO declined to reopen the previously denied claim. The pertinent evidence then of record pertinent to the Veteran's claims for service connection for residuals of a head injury consisted of the Veteran's STRS and military personnel records, VA medical records, and the report of an October 1996 and April 1998 VA examination for PTSD, which reflect that an in-service head injury did not result in TBI. In its March 1999 decision, the RO noted that the Veteran's service treatment records support the Veteran's contention that he suffered an in-service head injury and that the Veteran was treated for headaches. However, the RO found that evidence showed that the Veteran did not suffer from residuals of his in-service head injury. Thus, the basis for the RO's denial was that the evidence failed to establish that the Veteran was diagnosed with residuals of a head injury. Although notified of the denial in a March 1999letter, the Veteran did not timely file a NOD as to that decision. See 38 C.F.R. § 20.202. Moreover, no new and material evidence was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. § 3.156 (b), (c). The RO's March 1999 denial of new and material evidence to reopen the claim for residuals of head injury is therefore final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In this case, the Veteran filed his claim to reopen his previously denied claim for service connection in October 2011. Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The provisions of 38 U.S.C. § 5108 require a review of 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. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence associated with the claims file since the March 1999 RO denial includes additional VA treatment records, a VA examination report, and additional statements by the Veteran in support of his claims, to include his August 2017 hearing testimony. In an August 2002 VA treatment record, the Veteran reported chronic headaches. However, on examination, the clinician noted that there was no evidence of head trauma. In December 2007 and August 2009 VA physical therapy notes, the Veteran reported headaches. In a February 2015 rating decision, the RO granted service connection for chronic headaches as secondary to service-connected degenerative arthritis of cervical spine. The Veteran was afforded a VA examination in November 2014. At that time, the Veteran reported suffering a head injury in service, and that he was "knocked out" for three hours. The Veteran also reported that he suffered another head injury in service when his head hit a boat and he lost consciousness for about an hour. The examiner noted that the Veteran had not had treatment for TBI, and stated that his symptoms are predominantly for neurobehavior stemming from his service-connected posttraumatic stress disorder (PTSD). The examiner concluded that Veteran did not have TBI or any residuals of TBI. In a separate March 2014 VA medical opinion, the physician noted that since the November 2014 VA examination, the Veteran had a neuropsychological examination in December 2014, which also revealed that the Veteran's subjective complaints are related to his service-connected PTSD. In concluding that the Veteran did not suffer from TBI, the physician reasoned that not all head injuries and lacerations result in TBI. During his 2016 Board hearing, the Veteran testified as to injury sustained in service. He further stated his belief that he currently suffers from TBI because of his in-service head injury. However, the Veteran did not provide any medical evidence to support his belief that he currently suffers from TBI or its residuals. The above-described additionally received medical evidence is new, in that it was not previously before agency decision makers, and the Veteran's complaints of headaches are relevant, in that they describes symptoms of TBI-the disability for which service connection is sought. However, none of the medical or lay evidence constitutes new and material evidence for purposes of reopening the claim. None of the medical records establishes a current disability of TBI. Significantly, the newly received post-service VA records do not reflect any diagnoses regarding TBI. Although, the treatment records do contain Veteran's complaints of and treatments for headaches, the Veteran was service-connected for headaches as secondary to his service-connected degenerative arthritis of cervical spine. Additionally, in a November 2014 VA examination, the examiner noted that the Veteran's subjective complaints are related to his service-connected PTSD. As explained above, the basis for the prior denial was that there was no medical evidence of TBI and there is still no medical evidence of such disability. As such, the additionally medical evidence does not pertain to unestablished facts-current disability, and, if shown, medical nexus to service-needed to grant service connection. The Board also finds that the Veteran's own assertions (to include those advanced by his representative on his behalf), provide no basis to reopen the claim. To the extent that the Veteran asserts that he has TBI that was incurred in service, the Board finds that these statements do not provide any new information because they simply reiterate assertions previously of record. In this regard, the Board notes that that statements simply reemphasizing the position previously considered in the prior final decision are not new or sufficient to reopen the claim. See Reid v. Derwinski, 2 Vet. App. 312 (1992). The Board further points out that, although the Veteran is competent to assert matters within his personal knowledge (to include matters observed or experienced), and to offer comment on some limited medical issues (to particularly include with respect to conditions capable of lay observation), he is not shown to have the medical training and expertise to comment on more complex medical matters-such as the diagnosis of a TBI involving internal processes, and, if established, the etiology of such a disability. See 38 C.F.R. § 3.159 (a); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (lay person not competent to diagnose cancer). "Therefore, where, as here, resolution of the appeal turns upon a medical matter that cannot be established by lay evidence, unsupported lay statements, alone, even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211, 214 (1993). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for TBI are not met, and the March 1999 RO denial of the claim remains final. See 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence to reopen the claim for service connection for residuals of head injury, claimed as TBI, has not been received, the appeal as to this matter is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs