Citation Nr: 20007281 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-31 703 DATE: January 28, 2020 ORDER As new and material evidence has been received, the Veteran’s service-connection claim for residuals of a head injury is reopened. REMANDED Entitlement to service connection for metal in the jaw (previously claimed as residuals of head injury) is remanded. Entitlement to service connection for metal in the skull (previously claimed as residuals of head injury) is remanded. FINDINGS OF FACT 1. In a May 1995 decision, the agency of original jurisdiction (AOJ) denied the Veteran’s claim for service connection for residuals of a head injury. Although notified of the denial, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 2. The evidence pertaining to the Veteran’s claim for residuals of a head injury submitted after the May 1995 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claims, and raises reasonable possibilities of substantiating the claims. CONCLUSIONS OF LAW 1. The May 1995 denial of the claim for service connection for residuals of a head injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 2. As additional evidence received since the AOJ’s May 1995 denial is new and material, the criteria for reopening the claim for service connection for residuals of a head injury are met. 38 U.S.C. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1965. In his June 2016 formal appeal to the Board, the Veteran requested a hearing at his local VA office. The Veteran was scheduled for a hearing on July 12, 2019. However, he failed to report to his scheduled hearing and did not provide good cause for his failure to do so. Therefore, the Veteran’s hearing request is considered withdrawn. New and Material Evidence Generally, a claim which has been denied in an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. Regardless of the determination reached by the AOJ, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The AOJ denied the Veteran’s request to reopen a previously denied service-connection claim for residuals of a head injury in a May 1995 decision. The Veteran did not appeal, nor did he submit new and material evidence within a year of the AOJ’s decision. As such, the May 1995 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In relation to his claim to reopen, a private medical opinion by Dr. A.S. has been associated with the claims file that indicates that the Veteran has metal in the jaw and skull from “war wounds” and references a June 2008 X-ray report. See March 2016 nexus statement. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156. The appeal is accordingly reopened. REASONS FOR REMAND 1. Entitlement to service connection for metal in the jaw (previously claimed as residuals of head injury) is remanded. 2. Entitlement to service connection for metal in the skull (previously claimed as residuals of head injury) is remanded. As noted above, the Veteran had active duty service from November 1963 to November 1965. He asserts that he has metal in his jaw and skull due to combat injuries sustained while serving in the Republic of Vietnam. See July 2014 Statement in Support of Claim. His DD-214 does not indicate Vietnam service, but rather, foreign service in Europe. The Veteran’s claims file does not contain service personnel records for his period of active service. As such records may contain information regarding the Veteran’s duty stations during his period of service, remand is required to obtain them. Evidence also indicates that there are outstanding relevant VA treatment records that have not been associated with the Veteran’s claims file. In the June 2016 Statement of the Case, the AOJ referenced a November 6, 2015, CT scan of the head. However, there are no VA treatment records associated with the claims file. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. In a March 2016 private medical opinion, Dr. A.S. referenced a June 30, 2008 X-ray report showing metal fragments in the Veteran’s jaw and skull. The X-ray report is not of record. It is unclear whether this X-ray report is part of the missing VA treatment records or was completed by a private examiner. On remand, contact the Veteran and have him identify any relevant outstanding private treatment records and take the steps necessary to obtain these records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel file. 2. Take all appropriate steps to confirm whether the Veteran served in Vietnam at any time during his period of active duty service, ending in November 1965. 3. Contact the Veteran and clarify whether the June 30, 2008, X-ray report was completed by a VA examiner or a private examiner. Then take the appropriate steps to obtain a copy of the report. 4. Obtain the all of the Veteran’s VA treatment records not already associated with the claims file, including the November 6, 2015, CT scan report. 5. After any additional development deemed necessary, readjudicated the Veteran’s appeal. If the benefit sought remains denied, send the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.