Citation Nr: 21004185 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-40 219 DATE: January 26, 2021 ORDER Whether new and material evidence has been received to reopen the previously denied claim of service connection for a traumatic brain injury (TBI) is granted, to that extent only. REMANDED Entitlement to service connection for a TBI is remanded. FINDING OF FACT The May 2015 rating decision denying entitlement to service connection for TBI is final in the absence of a perfected appeal regarding that decision. The evidence associated with the claims file since the May 2015 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for TBI. CONCLUSION OF LAW The May 2015 rating decision denying the claim for entitlement to service connection for TBI is final. New and material evidence sufficient to reopen the claim has been received. 38 U.S.C. § 5108, 7104, 7105; 38 C.F.R. § 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1100, 20.1104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2006 to October 2007, with additional periods of service in the Army National Guard. This matter comes before the Board of Veteran’s Appeals (Board) from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2019 Board decision, the Board denied reopening the claim of service connection for a TBI. The Veteran disagreed with that decision and appealed to the United States Court of Appeals for Veterans Claims (CAVC). In August 2020, CAVC granted a Joint Motion for Remand (JMR) where the parties requested vacatur of the July 2019 Board. The claims are now before the Board. 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for residuals of a traumatic brain injury The Veteran seeks service connection for residuals of a traumatic brain injury (TBI). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means 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. The evidence must also raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, instead of limiting consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, VA should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of history, the Veteran’s claim was denied in a May 2015 rating decision. The Veteran did not submit a notice of disagreement (NOD) regarding that decision and instead submitted a supplemental claim to reopen the claim of service connection for TBI in July 2015. In a September 2015 rating decision, the RO reopened the claim but denied the claim on the merits as no diagnosis of a TBI was found nor medical evidence supporting a nexus. The Veteran appealed that decision and has consistently pursued his appeal. In July 2019, the Board denied reopening the claim of TBI, as it found no new and material evidence had been submitted since the May 2015 rating decision. The Veteran disagreed with that decision and appealed to CAVC. CAVC, granted a JMR vacating the July 2019 Board decision and remanded the claim for readjudication. The Board notes the May 2015 rating decision became final as the Veteran did not submit a notice of disagreement in the required form regarding that decision. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.201. The Veteran’s representative has argued that the Veteran’s psychiatric disorder, which is now service connected, is indicative of the presence of a TBI. In favor of this argument, the Veteran’s representative points to a January 2008 TBI Second Level Evaluation where a physician determined that her findings were not consistent with a TBI diagnosis. The representative argues that this determination was based in part on the finding that the Veteran did not have psychiatric symptoms. See JMR. The Board has revised the January 2008 TBI Second Level Evaluation; which reflects the Veteran was questioned regarding neurobehavioral symptoms. The examiner noted the Veteran reported at various levels of intensity the following symptoms: sleep difficulties, feeling anxious or tense, feeling depressed, irritability, and poor frustration tolerance. However, at the end of the evaluation, in a part titled professional conclusion/assessment, the examiner noted “psychiatric symptoms: no” and determined that the findings were not consistent with a TBI diagnosis. See medical records for January 2008. The Board finds the Veteran’s representative assertions regarding how the presence of psychiatric symptoms may be indicative of a TBI constitute new and material evidence sufficient to reopen the claim of service connection for TBI residuals; to that extent only. Accordingly, the claim of service connection for a TBI is reopened, to that extent only. REASONS FOR REMAND 1. Entitlement to service connection for TBI residuals is remanded. The Veteran seeks service connection for TBI residuals. In favor of his claim the Veteran has asserted that while in active service, he fell down a flight of stairs. He also reported having experienced multiple mortar episodes with no injuries nor blast shockwaves. See January 2008 TBI Second Level Evaluation. The Veteran’s service treatment records (STRs) do not show any treatment for a head injury nor any complaint of a head injury. See STRs. The Veteran’s representative has argued that the Veteran’s psychiatric symptoms may be indicative of a TBI. However, the Board notes the Veteran’s psychiatric symptoms have not been attributed to a TBI. Furthermore, the Veteran’s medical records do not show a diagnosis of TBI at any time during the appeal period. Additionally, the Board notes that the Veteran’s representative is not competent to opine whether the Veteran’s psychiatric disorder is indicative of a possible TBI, as the representative is not a physician or a medical expert. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). However, the Board finds this argument to be sufficient to trigger VA’s duty to assist in providing the Veteran with a VA examination for his claimed TBI as the Veteran currently has a diagnosis of a psychiatric disorder and his medical records reflect that the determination of January 2008 on whether the Veteran has a TBI diagnosis was based, at least in part, on the absence of psychiatric symptoms. Accordingly, the Board finds a remand is necessary so that the Veteran is afforded a VA examination for his claimed in-service TBI. The matters are REMANDED for the following action: 1. Update existing medical records. If necessary, contact the Veteran and request that he provide information as to any outstanding medical records not already associated with the claims file. Perform any required development to obtain such records and to update medical records. All responses must be associated with the claims file. 2. Schedule the Veteran for a VA examination regarding his claim of service connection for TBI. The examination must be performed by an appropriately qualified examiner with training and expertise in TBI examinations (physiatrist, psychiatrist, neurologist, or neurosurgeon). The examiner is asked to opine: a. Whether the Veteran has a current diagnosis of TBI b. whether it is at least as likely as not that the Veteran has any current residuals of an in-service TBI, to include headaches, acquired psychiatric disorder(s), memory loss, cognitive difficulties, and/or any other residuals. In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. (Continued on the next page)   A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the appellant and his representative an opportunity to respond, and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.