Citation Nr: 21065169 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-45 237 DATE: October 25, 2021 ORDER The claim to reopen the previously denied claim for a brain tumor is granted. REMANDED Entitlement to service connection for a brain tumor is remanded. FINDING OF FACT 1. The Veteran's claim for service connection for a brain meningioma was initially denied in a December 2011 rating decision because the evidence of record failed to show the Veteran's disease began while he was on active service. The Veteran was notified of this decision and his appellate rights in a December 15, 2011 letter. Within a year of the mailing of that letter, the Veteran did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. 2. Evidence received since the December 2011 rating decision is related to an unestablished fact necessary to substantiate the claim for service connection for a brain tumor. CONCLUSION OF LAW 1. The December 2011 rating decision denying entitlement to service connection for a brain tumor is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant the reopening of the previously denied claim for service connection for a brain tumor. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1970 to February 1972, including service in the Republic of Vietnam from January to December 1971. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for a traumatic brain injury. In February 2016, VA received the Veteran's Notice of Disagreement. Following the issuance of a Statement of the Case in March 2016, the Veteran perfected a timely appeal via his submission of a VA Form 9 in September 2016. In August 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript is of record. As a preliminary manner, the Board notes that portions of the Veteran's hearing transcript are incomplete due to inaudible portions of the audio recording of the Veteran's hearing. Portions of the Veteran's transcript were enough to support reopening the claim. The Veteran was offered an opportunity for a second hearing; however, he failed to appear for the hearing. The Board notes the Veteran's representative initially indicated the appellant had not received notice of the hearing, but then submitted a written brief in lieu of a hearing. As such, to avoid further delay, the Board has remanded the claim for further adjudication based on evidence received at the initial hearing. If the appellant wishes to have an additional hearing after further development by the RO, the appellant may request an additional hearing at that time. As discussed during that hearing, based on the evidence of record, the Veteran's contentions, and his August 2019 hearing testimony, the Board has recharacterized the issue on appeal as entitlement to service connection for a brain tumor which more clearly reflects the benefit sought. In light of the remand below, no prejudice to the Veteran has resulted. Bernard v. Brown, 4 Vet. App. 384 (1993) (holding that before the Board may address a matter that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities). Additionally, in recharacterizing the issue, the Board notes that the Veteram and his representative clarified that this claim was really a claim to reopen a claim that had been previously denied in a December 2011 rating decision. As discussed below, the Board has found that new and material evidence has been received such that the claim can be reopened. As such, there is no prejudice to the Veteran as the underlying issue is being remanded for a new determination on the merits of the claim. See Bernard, 4 Vet. App. 384. New and Material Evidence 1. The claim to reopen the previously denied claim for a brain tumor is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (noting the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Typically, a new theory of entitlement alone does not constitute new and material evidence and will not be sufficient to reopen a previously denied claim of service connection under 38 C.F.R. § 3.156(a). See also Velez v. Shinseki, 23 Vet. App. 199, 205-06 (2009) (explaining that separate theories do not constitute separate claims and a previously denied claim may be reopened on an alternate theory only if new and material evidence is presented). The Veteran's claim for service connection for brain meningioma was initially denied in a December 2011 rating decision because the evidence of record failed to show the Veteran's Brain tumor developed while he was in active service. The Veteran was notified of this decision and his appellate rights in a December 15, 2011 letter. Within a year of the mailing of that letter, the Veteran did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. As such, the Board finds that the December 2011 rating decision on this issue is final. Evidence received since the December 2011 rating decision is related to an unestablished fact necessary to substantiate the claim for service connection for a brain tumor. At his Board hearing, the Veteran testified that he had been told by one of his treating physicians that his tumor, while only diagnosed in the 1990's, was likely present at least 20 years prior, opening the possibility that the appellant's tumor developed while he was in active service or within the presumptive period following his separation from active service. The Board must presume the evidence is credible for purposes of determining whether to reopen the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence was not previously of record and it goes towards proving a missing element of the claim for service connection. As such, the Board finds this evidence is new and material, and as such, that a reopening of the previously denied claim for service connection for a brain tumor is warranted. 38 C.F.R. § 3.156. As discussed below, the Board finds that additional development is necessary prior to an adjudication on the underlying merits of this claim is made. REASONS FOR REMAND 1. Entitlement to service connection for a brain tumor is remanded. While the Board regrets further delay in deciding this claim, after a review of the evidence of record, the Board finds that additional action by the RO is needed prior to further appellate consideration. The Veteran seeks service connection for a brain tumor, first diagnosed in 1997. He theorizes that his brain tumor may the result of a head injury he sustained during active duty as the tumor developed in the same spot in which he sustained trauma. Alternatively, he theorizes that his brain tumor is the result of his presumed exposure to herbicide agents while in active service in the Republic of Vietnam. Finally, the Veteran recalls that one of his treating physicians advised him that his brain tumor may have been present for more than 20 years at the time of the 1997 diagnosis, raising the possibility that it had its inception during active duty or within the presumptive period. As set forth above, the Veteran served in the Republic of Vietnam during the Vietnam era. Thus, he is legally presumed to have been exposed to herbicide agents during service. VA regulations provide that, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Although the enumerated diseases do not include brain tumors, service connection may be established with evidence of actual causation. 38 C.F.R.§ 3.309(e); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). A VA medical opinion has not been rendered addressing these contentions. As such, the Board finds that remand is necessary so as to afford the appellant a medical examination to determine the current severity of his claimed disability and to obtain a medical opinion addressing the appellant's various theories of entitlement. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his brain tumor. Provide the examiner with access to the Veteran's claims folder for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should: Provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's brain tumor treated in 1997 was causally related to his active service, including his reported head injury? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Is the brain tumor at least as likely as not related to the presumed in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the brain tumor is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Further rationale should be provided either for or against this contention. Is it at least as likely as not that the Veteran's brain tumor (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must address and discuss the appellant's reports that his treating physician told him it was possible the tumor had developed many years prior to its diagnosis in the 1990's and could have been present while he was in active service or within a year of his separation from active service. The clinician must provide a rationale for each opinion requested. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.