Citation Nr: 20041998 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 19-03 339 DATE: June 19, 2020 ORDER The application to reopen the previously denied claim of entitlement to service connection for a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In a March 2015 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida denied service connection for TBI. 2. Evidence added to the record since the final March 2015 RO decision is cumulative or redundant of the evidence previously considered and does not relate to an unestablished fact necessary to substantiate the claim for service connection for TBI. CONCLUSIONS OF LAW 1. The RO’s March 2015 decision denying service connection for TBI is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 2. New and material evidence has not been received to reopen the claim for service connection for TBI. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2000 to January 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the VA Regional Office. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. The application to reopen the previously denied claim of entitlement to service connection for TBI is denied. In order to reopen a finally adjudicated claim, new and material evidence must be submitted. 38 C.F.R. § 3.156. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the evidence reflects that the RO denied the Veteran’s claim for service connection for TBI by a rating decision dated March 2015, because the evidence did not show the Veteran’s TBI either occurred in, or was caused by, his military service. The Veteran was advised of the RO’s March 2015 decision and of his appellate rights. The Veteran did not submit pertinent evidence during the one-year period following mailing of notice of the RO’s decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. At the time of the March 2015 rating decision, the record included VA outpatient treatment records, to include VA progress notes where the Veteran specifically denied recollection of any TBI in-service events, even during TBI screenings, such as one conducted in December 2009 and May 2010. During this same timeframe, to include a detailed letter the Veteran provided in February 2014, the Veteran relayed other combat-related circumstances in support of his pending posttraumatic stress disorder (PTSD) claim, but none of these events involved a TBI or being near an IED. In contrast, other records, such as a November 2013 VA outpatient treatment record, notes “multiple IED exposures with TBI” with complaints of memory and concentration problems. A 2014 VA outpatient treatment record also noted memory problems following a 2004 TBI. In short, the VA outpatient treatment records and lay statements at the time of the March 2015 rating decision showed vastly contradicting statement from the Veteran as to whether he ever experienced a TBI and, if so, the type, the frequency, the severity, and his manifestations stemming from. The evidence also included a January 2015 VA examination where the examiner noted the Veteran’s contention at that time that he had a TBI related to an IED blast, with decreased concentration and memory problems. At that time, the examiner’s clinical assessment focused on the Veteran’s mental disorder, which was found to be the predominant impairment. Again, the March 2015 rating decision weighed this evidence and denied the claim finding the evidence did not show a TBI was incurred in or caused by service. The Board finds that no new and material evidence has been received with respect to the Veteran’s TBI disability. See 38 C.F.R. § 3.156(a). The evidence received since the March 2015 RO decision includes additional VA treatment records and additional statements by the Veteran in support of his claim, however that evidence is cumulative of prior evidence in the record. The records and lay statements merely show, again, the Veteran’s reports that he was in an IED explosion during his military service. This contention was already in the record at the time of the March 2015 rating decision. Indeed, at the time of the March 2015 rating decision, the Veteran had indicated various IED explosions and ambushes during his military service. Thus, this evidence is cumulative of prior evidence in the record. For example, in August 2012, VA treatment records, the Veteran reported the most serious injury was in 2003, that he had five or more vehicular episodes, he experienced a high-explosive bomb or IED blast wave, etc. In November 2013 the Veteran reported multiple IED exposures with TBI. The Veteran’s representative contends that the claim should be reopened because the Veteran treatment records from the Phoenix VA including the September 2015 TBI screening where the Veteran reported suffering a TBI. Although this evidence is new, it is not material as it is cumulative of prior evidence in the record. The record prior to the March 2015 rating decision contains reports of multiple IED exposures. The September 2015 notes specifically report a 2003 IED, and the Veteran also reported a 2003 IED exposure previously. For example, the August 2012 VA treatment notes include a TBI second level evaluation where his history of IED exposure was thoroughly documented. The Veteran has not submitted any evidence which separately corroborates his reports of an inservice injury or event, including being exposed to an IED. The new evidence contains similar reports of IED exposure that was previously in the record. As such the evidence is not material. The Veteran has not presented new evidence to show an in-service event, injury, or illness; nor has he submitted other evidence that could be considered new and material. Therefore, the appeal, to this limited extent, must be denied. REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. VA has a duty to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Under applicable law, a medical examination and/or opinion is deemed “necessary” if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In the present case the evidence shows a current diagnosis of headaches. For example, in August 2015 he was assessed with migraine headaches. There is also evidence of a possible event, injury, or disease. As noted above, the Veteran’s reports of “multiple” IEDs during military service has been unconfirmed and has been inconsistent throughout time. The Veteran, however, has reported a history of headaches since 2001, and he is competent to report a history of headaches. In light of the circumstances of his service and the history of his symptoms, the Board finds a VA examination is necessary. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation). 2. Entitlement to a TDIU is remanded. The Veteran’s claim for a TDIU is inextricably intertwined with the claim being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the TDIU claim will be remanded as well. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange to have the Veteran scheduled for a VA headache examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s headaches had an onset in, or are otherwise attributable to, his period of active service. In so doing, the examiner should consider the medical significance, if any, of the lay statements of record from the Veteran and the Veteran’s spouse as well as the general circumstances of his service. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims, to include the TDIU claim, should be adjudicated based on the entirety of the evidence. If any benefit(s) sought 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. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.