Citation Nr: 21075107 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-36 382 DATE: December 17, 2021 ORDER New and material evidence having been received, the claim for service connection for headaches is reopened, and to this extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for a left hip disability is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for headaches was denied in a prior rating decision dated in August 2011. 2. The Veteran did not appeal the August 2011 rating decision or submit new and material evidence within one year; therefore, that decision became final. 3. The evidence received since the August 2011 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim for service connection for headaches. 4. The claim for entitlement to service connection for a left hip disability was denied in a prior rating decision dated in August 2011. 5. The Veteran did not appeal the August 2011 rating decision or submit new and material evidence within one year; therefore, that decision became final. 6. The evidence received since the August 2011 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim for service connection for a left hip disability. CONCLUSIONS OF LAW 1. The August 2011 rating decision regarding the claim for service connection for headaches is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 2. The criteria to reopen the claim for service connection for headaches are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The August 2011 rating decision regarding the claim for service connection for a left hip disability is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 4. The criteria to reopen the claim for service connection for a left hip disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1981 to January 1995. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in December 2015 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board acknowledges that, in March 2019, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form. However, in April 2019, the Veteran was notified that his RAMP opt-in form could not be processed, and the case was subsequently docketed at the Board in the legacy system. Accordingly, the Board will undertake appellate review of the case in the legacy review system. The Veteran testified at a Board hearing in August 2021. A copy of the transcript has been associated with the record. The Board sincerely apologizes for any additional delay in rendering a decision for these claims on appeal; however, to ensure the Veteran is afforded every opportunity to substantiate his claims, a remand is required. SERVICE CONNECTION 1. Whether new and material evidence was received to warrant reopening the claim for service connection for headaches 2. Whether new and material evidence was received to warrant reopening of the claim for service connection for a left hip disability Board decisions and rating decisions are generally final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Generally, a claim that has been denied in an unappealed rating or Board decision may not thereafter be reopened and allowed. 38 C.F.R. § § 20.1100, 20.1103. The exception to this regulation 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 decisionmakers. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. 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. 38 C.F.R. § 3.156(a). VA must review all the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the action of the AOJ, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. § 5108 and § 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). At the time of the August 2011 denial of service connection for a hip disability and headaches, the relevant evidence of record included the Veteran's service treatment records (STRs), April 2011 VA examination reports, and private outpatient treatment records. The record does not show that the Veteran appealed the rating decision; thus, the August 2011 rating decision is final. Since the rating decision, the Veteran was afforded additional VA examinations in December 2015. The Veteran's post-service treatment records, both from VA and private providers, have also been updated. Finally, the Veteran submitted an article in support of his claim in October 2015 and he testified at a Board hearing in August 2021. The evidence is new, as none of it was of record at the time of the prior denial. Furthermore, the evidence is material because it relates to the reason for the prior denial, in that the evidence purports to link the Veteran's headache and hip disabilities to service. As such, the evidence also raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. The Board also presumes the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Justus, 3 Vet. App. at 513. Accordingly, the claims for entitlement to service connection for headaches is reopened. The claim for entitlement to service connection for a left hip disability is also reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). To this extent only, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. The Veteran's claims stem for a January 1986 hit-and-run accident, which is documented in the STRs. Initially, the Board notes that the Veteran's STR reflect that he was transferred from the Naval hospital emergency department to Baptist Medical Center for treatment. In October 2010, the AOJ received a response from Baptist Medical Center that it had no records for the Veteran. However, a review of the claims file does not show that the Veteran was notified of the negative response. Therefore, the Veteran must be notified on remand. The Veteran was afforded VA examinations for his headaches in April 2011 and December 2015. In both reports, the examiners concluded that the Veteran's headaches were not related to his in-service head injury. However, the rationales provided are inadequate. The April 2011 VA examiner explained that the Veteran did not complain of headaches in service after his head injury, and the onset of headaches was in 2004, 18 years after separation. Therefore, they are less likely than not related to active duty. The December 2015 VA examiner similarly explained that there was no evidence of a headache disorder during service, or headaches following the traumatic brain injury (TBI) in 1986. The Veteran's headaches had happened for the previous 13 or 14 years, so a nexus could not be made. The opinions are inadequate for several reasons. First, they rely on the onset of headaches and lack of documentation, without explaining the medical significance of delayed onset. Second, they do not address other evidence of record. A private physician, Dr. J. referenced the TBI as a possible cause of the Veteran's headaches in October 2010, and a September 2015 VA outpatient record notes that the chronic headaches are "status-post severe TBI." A May 2015 MRI showed that the Veteran had encephalomalacia in the bilateral frontal lobes and left temporal lobe, for which the Veteran is service-connected, but no opinion of record address whether the Veteran's headaches are secondary to encephalomalacia. Third, the opinions of record do not directly address the Veteran's contentions. The Veteran contends that "residuals" or other side effects can occur later, as evidenced by the fact that he was not diagnosed with a TBI until 2015. The Veteran also contends that he did not have documented headaches in service because he was on anticonvulsive medication for 2 years after the TBI, and as a medical corpsman, he was able to obtain pain killers by consulting colleagues without going to sick call. On remand, the AOJ must obtain an adequate opinion that addresses the evidence and contentions identified above. 2. Entitlement to service connection for a left hip disability is remanded. The Veteran reports that he was hit on his left hip by the hit-and-run driver, which caused him to develop arthritis and need a hip replacement. The April 2011 VA examiner provided a negative nexus opinion. The April 2011 VA examination report indicates that the Veteran's left hip X-rays were normal after the accident, so any hip injury resolved before separation. The Veteran reported the onset of hip pain around 2009, and he was noted to have worked as a chef and corrections officer, so there was no nexus to service. The Board finds the opinion of record inadequate to decide the claim. First, the VA examiner diagnosed the Veteran with a hip strain, but did not opine on the Veteran's diagnosed arthritis. Second, the examiner did not address potentially relevant evidence. A March 2015 private record from the Orthopedic Institute indicates that the Veteran had "end stage arthritis with total loss of articular cartilage of the weightbearing surface" of the left hip, with only mild degenerative changes of the right hip with adequate cartilage. The examiner did not address the difference in the Veteran's hips in light of the accident. The Veteran submitted an article in support of his claim in October 2015 regarding posttraumatic arthritis that needs to be addressed. Third, the VA examiner did not address the Veteran's contentions. The Veteran has contended in correspondence and in his August 2021 testimony, that he was told he needed a hip replacement at a young age, but had to put it off because he was too young, and but for the in-service injury, he would not have developed severe arthritis at a young age. He has also contended that he was able to manage hip stiffness and discomfort, but he had an uneven gait, which contributed to his hip disability. The Veteran also indicated that his civilian jobs did not require heavy lifting or running, as he worked in an administrative role. Thus, a remand is required to address the relevant evidence and the Veteran's contentions. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he complete and return an updated VA Form 21-4142, Authorization and Consent to Release Information, for treatment at Baptist Medical Center. If the Veteran completes and returns the VA Form(s) 21-4142, Authorization and Consent to Release Information, request copies for association with the electronic claims file of any and all records of treatment/hospitalization that he received from the hospital, to include treatment reports, hospitalization records, and progress notes for the duration of his medical treatment. Notify the Veteran and the representative if it is determined that the request would be futile or if the private treatment records are unavailable. 2. Obtain a supplemental opinion from a qualified VA examiner regarding the etiology of the Veteran's headaches. If the examiner determines that he or she cannot respond to the Board's inquiries herein without examining the Veteran, then an examination must be afforded. If an in-person examination is not feasible, then the Veteran should be afforded an examination by other means. All necessary tests should be conducted. The entire claims file and a copy of this remand should be made available to the examiner for review. The examiner is asked to address the following: (a.) The examiner should directly address the following evidence and contentions: (1) Dr. J's October 2010 reference to the TBI as a possible cause of the Veteran's headaches; (2) the September 2015 VA outpatient record noting that the chronic headaches are "status-post severe TBI;" (3) the Veteran's contention that "residuals" or other side effects can occur later, as evidenced by the fact that he was not diagnosed with a TBI until 2015; and (4) the Veteran's contentions that he did not have documented headaches in service because he was on anticonvulsive medication for 2 years after the TBI, and as a medical corpsman, he was able to obtain pain killers by consulting colleagues without going to sick call. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's headaches are etiologically related to, incurred in, or caused by the Veteran's military active service, including an in-service TBI. (c.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's headaches are proximately due to, the result of, caused by, or aggravated by the Veteran's service-connected encephalomalacia. 3. Obtain a supplemental opinion from a qualified VA examiner regarding the etiology of the Veteran's left hip disability. If the examiner determines that he or she cannot respond to the Board's inquiries herein without examining the Veteran, then an examination must be afforded. If an in-person examination is not feasible, then the Veteran should be afforded an examination by other means. All necessary tests should be conducted. The entire claims file and a copy of this remand should be made available to the examiner for review. The examiner is asked to address the following: (a,) The examiner should directly address the following: (1) a March 2015 private record from the Orthopedic Institute showing that the Veteran had "end stage arthritis with total loss of articular cartilage of the weightbearing surface" of the left hip, with only mild degenerative changes of the right hip with adequate cartilage; (2) the article submitted in October 2015 regarding posttraumatic arthritis, indicating that arthritis can develop years later, especially in people who are not in their sixties; (3) the Veteran's contention that he needed a hip replacement at a young age, but had to put it off because he was too young, and but for the in-service injury, he would not have developed severe arthritis at a young age; (4) the contention that he was able to manage hip stiffness and discomfort in-service, but he had an uneven gait, which contributed to his hip disability; and (5) the Veteran's report his civilian jobs did not require heavy lifting or running, as he worked in an administrative role. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's left hip disability is the result of, caused by, or related to, an in-service injury. 4. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. 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.