Citation Nr: 21065861 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-67 241 DATE: October 27, 2021 ORDER The petition to reopen the claim for entitlement to service connection for residuals, head injury, to include lacerations and headaches is granted. REMANDED Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for residuals of a head injury, to include lacerations and headaches is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's petition to reopen his claim for service connection for residuals, head injury, to include lacerations and headaches was denied by a June 2014 rating decision. The Veteran did not perfect an appeal of this decision, and it became final. 2. Since the June 2014 rating decision, the Veteran has submitted new evidence that relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2014 rating decision that denied the Veteran's petition to reopen his claim for service connection for residuals, head injury, to include lacerations and headaches became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 38 C.F.R. §§ 3.104, 3.156 (b), 20.1103. 2. The evidence received since the June 2014 rating decision is new and material, and the claim for service connection for residuals, head injury, to include lacerations and headaches is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in form for the issues on appeal in July 2018. While a February 2019 letter indicated that the issue of entitlement to a higher rating for PTSD had been accepted into RAMP and that the issue had been withdrawn from the legacy system, VA did not formally complete this process. In July 2021, a post-implementation RAMP choice letter was mailed to the Veteran and his representative by the Board. They were provided 60 days to opt into the RAMP provisions, after which it was held that the case would remain in the legacy system. At the time of this decision, the Board has not received a response to the RAMP letter from the Veteran or his representative, thus the Board will adjudicate the Veteran's claims as a legacy appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. During the Veteran's Board hearing, the Veteran reported that he stopped working due, in part, to his service-connected PTSD; therefore, the Board concludes that the Court's holding in Rice is applicable and the issue of entitlement to a TDIU claim is before the Board at this time. 1. The petition to reopen the claim for entitlement to service connection for residuals, head injury, to include lacerations and headaches Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened, and the former disposition reviewed. 38 U.S.C. § 5108. "New" evidence means evidence not previously submitted to agency decision makers, and "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 of record at the time of the last 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's petition to reopen his claim for service connection for residuals, head injury, to include lacerations and headaches was denied by a June 2014 rating decision. The RO stated that because there was no evidence of any head injury during his military service. As the current evidence of record did not show a head injury during service, the petition to reopen the claim for service connection for residuals of a head injury was denied. An appeal of this denial was not perfected, and the denial of the Veteran's petition to reopen the claim for service connection became final. 38 U.S.C. § 7105. Since the June 2014 rating decision, additional evidence has been associated with the claims file. The Veteran submitted a Statement in Support of Claim for PTSD in September 2015. The Veteran reported that he sustained a concussion during service, when he fell off a top bunk and hit the right side of his head. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. It is also material, as it relates to the previously unestablished element of whether the Veteran suffered an in-service concussion injury. This evidence is presumed credible. When viewed with the previous evidence of record, this evidence indicating that the Veteran sustained a concussion while falling off a bunk during service is neither cumulative nor redundant and raises a reasonable possibility of substantiating the Veteran's claim. As such, new and material evidence has been received, and reopening the claim is warranted. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a head injury, to include lacerations and headaches is remanded. Regarding the Veteran's claim for residuals of a head injury, the Veteran has not been afforded a VA examination. He has contended that he has residuals of an in-service head injury where he hit his head while returning to his barracks during service. See October 2020 Hearing at 13. The Veteran has also reported sustaining a head injury after falling from his bunk and hitting the right side of his head. See statements in May 2008 and September 2015. His service treatment records report that he was seen for swelling of the right eye with a laceration beneath his eye in March 1982 after falling into a door. The Board finds that a VA examination should be afforded to determine whether the Veteran suffers from a TBI or any residuals due to his in-service injury where he fell into a door. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 2. Entitlement to a disability rating in excess of 50 percent for PTSD is remanded. The evidence reflects that the Veteran's service-connected PTSD may have worsened since he was last examined by VA in September 2017. The Veteran reported worsening of his symptoms during his October 2020 Board hearing. Additionally, treatment records from mental health treatment at the Philadelphia VA Medical Center (VAMC) indicate worsening of mental health symptoms in November 2018. In light of the evidence of evidence of potential worsening of the Veteran's condition, a remand is warranted to ascertain the current severity and manifestations of his service-connected PTSD. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). 3. Entitlement to a TDIU is remanded. Lastly, as noted above, the issue of entitlement to a TDIU is, in part, based on the Veteran's service-connected PTSD. Thus, as the issue of entitlement to a TDIU is intertwined with the increased rating claim the Veteran's psychiatric disability, a remand is warranted for the claim for TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991). Further, the Board does not know the extent of the Veteran's current unemployment. To ensure that there is a complete record, the Board remands the issue of entitlement to a TDIU in order for the Veteran to provide a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which is needed to adjudicate the claim. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any current TBI or residuals thereof that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a TBI or residuals thereof that manifested in or are otherwise related to his active service. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran's lay assertions. Lay statements of record cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide a rationale for this determination. 2. Undertake appropriate efforts to schedule the Veteran for an appropriate examination to determine the current severity of his PTSD. The claims file must be reviewed in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. (Continued on the next page) 3. Undertake appropriate efforts to contact the Veteran, and his representative, and request a properly executed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.