Citation Nr: 21077409 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-19 718 DATE: December 29, 2021 ORDER As new and material evidence has been submitted sufficient to reopen a claim of service connection for bronchitis, the petition to reopen is granted. As new and material evidence has been submitted sufficient to reopen a claim of service connection for head trauma, the petition to reopen is granted. As new and material evidence has been submitted sufficient to reopen a claim of service connection for headaches, the petition to reopen is granted. REMANDED Entitlement to service connection for bronchitis is remanded. Entitlement to service connection for head trauma is remanded. Entitlement to service connection for chronic headaches is remanded. Entitlement to service connection for central nervous system sarcoidosis is remanded. Entitlement to service connection for major depressive disorder, secondary to pain is remanded. FINDINGS OF FACT 1. In an April 1985 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's claims for service connection for headaches, head trauma, and chronic bronchitis. Although notified of the denial, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 2. In a May 2011 rating decision, the AOJ denied the Veteran's claims of service connection for headaches and head trauma. Although notified of the denial, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 3. The evidence submitted since the final rating decisions is not cumulative or redundant of evidence of record at the time of the prior denials, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The April 1985 denial of the claim for service connection for chronic bronchitis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 2. The May 2011 denial of the claim for service connection for head trauma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 3. The May 2011 denial of the claim for service connection for headaches is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 4. The evidence submitted since the April 1985 rating decision is new and material and the criteria for reopening the claim for service connection for a chronic bronchitis are met. 38 U.S.C. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 5. The evidence submitted since the May 2011 rating decision is new and material and the criteria for reopening the claim for service connection for head trauma are met. 38 U.S.C. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 6. The evidence submitted since the May 2011 rating decision is new and material and the criteria for reopening the claim for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1983 to May 1984. New and Material Evidence 1. Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for bronchitis 2. Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for head trauma 3. Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for headaches Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule 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 decision makers. 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. See 38 C.F.R. § 3.156. Regardless of the determination reached by the AOJ, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran filed claims of service connection for head trauma, headaches, and acute bronchitis in July 1984. The claims were denied in an April 1985 rating decision. The Veteran was notified of the outcome in letter and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of that decision. Thus, the April 1985 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The Veteran filed a petition to reopen the claims of service connection for head trauma and headaches in December 2010. A rating decision in May 2011 denied the petition, finding that no new and material evidence had been submitted to reopen the claims. The Veteran was notified of the outcome in letter and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of that decision. Thus, the May 2011 rating decision is final. In September 2012, the Veteran filed a petition to reopen the claims of service connection for migraine headaches, brain trauma, and bronchitis, along with new claims of service connection for central nervous system sarcoidosis and depression secondary to pain. A September 2013 rating decision denied these claims. The Veteran filed a notice of disagreement with this rating decision in July 2014. A statement of the case was issued in March 2017 and the Veteran filed a substantive appeal in April 2017. At the time of the April 1985 and May 2011 rating decisions, the evidence of record consisted of the Veteran's service treatment records and a November 1984 VA examination. The claims were denied because the AOJ found that the head trauma in service was apparently acute and transitory with no residuals noted in service, the headaches preexisted service and were not aggravated beyond their normal progression, and acute bronchitis was secondary viral syndrome, not noted in service. The evidence received since the April 1985 and May 2011 rating decisions includes additional VA and private treatment records, additional lay statements from the Veteran, and Social Security Administration records. The records show current diagnoses of migraines and neurological disorders, as well as treatment for respiratory symptoms. The Board finds that the newly submitted evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claims. The claims are therefore reopened. REASONS FOR REMAND 1. Entitlement to service connection for bronchitis is remanded. 2. Entitlement to service connection for head trauma is remanded. 3. Entitlement to service connection for chronic headaches is remanded. 4. Entitlement to service connection for central nervous system sarcoidosis is remanded. 5. Entitlement to service connection for major depressive disorder, secondary to pain is remanded. Remand is necessary prior to adjudication to afford the Veteran VA examinations. Service treatment records show the Veteran experienced an injury to her head and headaches in service. The records also show that she had an upper respiratory infection in service. Post-service treatment records show migraines, a neurological disorder including sarcoidosis, and treatment for a respiratory infection. The Board finds that a VA examination is warranted to obtain an opinion to assess the nature and etiology of her disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate all outstand, relevant treatment records with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disorder, head trauma, migraines, and sarcoidosis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must provide diagnoses for all relevant disorders. Regarding each diagnosed disorder, the examiner is asked to answer the following: (a.) Is there was clear and unmistakable evidence of a preexisting disorder? If so, identify such evidence. (b.) If the Veteran's disorder clearly and unmistakably preexisted service, is there clear and unmistakable evidence that the disorder was not aggravated by service? With respect to each diagnosed disability that did not preexist service, render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to, service. A complete rationale is required for all opinions rendered based on a review of the record and applicable medica principles. 3. If the examiner finds that any of the Veteran's currently diagnosed disorders were incurred during or as a result of service or were aggravated by service, a VA examination must be afforded to the Veteran regarding the nature and etiology of any acquired psychiatric disorder, to include depression. The VA examiner must review the claims file and provide all relevant diagnoses and opine whether any diagnosed disorder is secondary to a service connected disorder. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.