Citation Nr: 21005312 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-24 170 DATE: February 1, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for the residuals of head injury, to include a traumatic brain injury (TBI), with vertigo, memory loss, migraines, and light sensitivity (also referred to herein as TBI residuals, is reopened. REMANDED Entitlement to service connection for TBI residuals is remanded. FINDING OF FACT Evidence received since an April 2009 rating decision relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since an April 2009 rating decision is new and material; therefore, the Veteran's claim of entitlement to service connection for TBI residuals is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1100, 20.1104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to April 1975. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Additionally, the Veteran’s claim was previously remanded by the Board in May 2020 for further development. The Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). New and Material Evidence The Veteran seeks to reopen his claim of service connection for a head injury which was previously denied in an April 2009 final rating decision. The VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Here, the Veteran's claim was denied in an April 2009 rating decision based on a finding of a lack of a current disability and a lack of a medical nexus. This decision was not appealed to the Board and the April 2009 rating decision is final. 38 U.S.C. § 7105(c). The evidence of record at the time of the April 2009 final rating decision consisted of the following: service treatment records and service personnel records. Since the April 2009 final rating decision, the evidence of record consists of the following: Multiple Veteran's lay statements, VA treatment records from the New Orleans VA Medical Center, January 2020 Board hearing transcripts, and private medical records from Ochsner Medical Center. After a review of the evidence the Board finds reopening is warranted. Without weighing the merits of this evidence, the Board finds VA medical records acquired since the April 2009 final rating decision reveal the Veteran has been diagnosed with a current mild cognitive disorder and thus has a current disability. See Shade, 24 Vet. App. at 110. This evidence relates to an unestablished fact and is not cumulative or redundant of the evidence previously submitted. Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises a reasonable possibility of substantiating the Veteran's service connection claim; and the claim is reopened. However, the Board finds that additional evidence is required before a decision on the merits may be issued. REASONS FOR REMAND Consistent with VA's duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Here, the Veteran stated that while engaging with combat with the enemy that he fell “10 feet down the gangplank” and lost consciousness. See January 2020 Board Hearing. To that extent, the Board acknowledges the Veteran was awarded the Combat Action Badge (CAB); and is therefore entitled to the combat presumption under which the Board accepts as credible his reports of an in-service head injury resulting in his loss of consciousness (assuming there is not clear and convincing evidence to the contrary). See 38 U.S.C. § 1154(b). As such, the first element of service connection, i.e. an in-service incident or injury, is fulfilled. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); As to the second required element, i.e. a current disability, the evidence of record indicates that during a March 2009 VA PTSD examination report, he was diagnosed with mildly impaired remote memory. A July 2013 VA mental health treatment record reveals that a memory test indicated he had a mild neurocognitive disorder. An October 2018 VA treatment record reveals he was diagnosed with Alzheimer’s Disease. As such, the second element of service connection has been fulfilled as the Veteran has been diagnosed with a current cognitive disorder. Id. Although the Veteran has undergone neurological care, he has not been afforded a VA examination to determine the nature and etiology of his current cognitive disorder. Moreover, the symptoms of memory loss that he alleges are the result of his in-service head injury are the same symptoms that are currently attributed to his cognitive disorder. As such, the Board finds the evidence of record is insufficient for the VA to render a decision and a remand for a VA medical examination to determine the nature and etiology of the Veteran’s cognitive disorder is required. See McClendon, 20 Vet. App. at 84. This matter is remanded for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine nature and etiology of any claimed TBI residuals as a result of active duty service. The examiner is requested to respond to the following: Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran manifests the residuals of an in-service traumatic brain injury (TBI)? Describe the nature of any such diagnosis(es), including whether any current cognitive disease or deficit may be attributable to the claimed in-service TBI? Notes: The examiner is to presume the Veteran stuck his head in-service as he described in the analysis of the Veteran’s service connection claim. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. After the above is completed in addition to any other development deemed necessary, readjudicate the Veteran’s claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.