Citation Nr: 21022682 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-60 892 DATE: April 19, 2021 ORDER New and material evidence has been received for service connection for memory loss, now claimed as a traumatic brain injury (TBI), and the request to reopen the claim is granted. REMANDED Service connection for memory loss is remanded. FINDING OF FACT Since the last final rating decision in April 2010, new and material evidence has been submitted to reopen a claim for service connection for memory loss. CONCLUSION OF LAW The criteria for reopening the previously denied claim for service connection for memory loss have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Air Force from September 1951 to August 1955. The issues are on appeal from a February 2015 rating decision. In April 2018, the Veteran testified in a videoconference hearing before the undersigned, per his request on his substantive appeal. A transcript of the hearing has been associated with the claims file. Subsequently, in October 2019, the Veteran’s representative requested another Board hearing. The Board notes that all the relevant regulatory provisions clearly and plainly discuss the Veteran’s right to a hearing. See, e.g., 38 C.F.R. §§ 3.103(c), 20.700, 20.702, 20.703, 20.1304. As noted above, the Veteran had a Board hearing in April 2018. Other than situations in which hearings have already been conducted before more than one Veterans Law Judge (VLJ), there is nothing in the statutory framework, regulatory provisions, or case law related to hearings that requires multiple hearings before the Board in connection with a claim. See 38 C.F.R. §§ 3.103(c), 20.700-20.717; see also 38 U.S.C. § 7107. The Board notes that the Veteran is not entitled to more than one Board hearing as a matter of right, unless specific exceptions apply, which are not shown here. For example, if a Board decision has been appealed to the Court of Appeal for Veterans Claims (Court) and is then returned to VA from the Court, another hearing could be requested at that time. A second hearing could also be requested if the VLJ that conducted the first hearing was no longer available to decide the case. Neither of those scenarios are present here. The Board will treat the request as a motion for an additional hearing. A motion requesting relief from the usual rules regarding hearing requests, such as the request for a second Board hearing, must be accompanied by an explanation of the justification for the request. The Veteran’s attorney did not indicate why a second Board hearing was necessary, merely requesting that a Board hearing be scheduled. Here, the record reflects that the Veteran already provided testimony on the present matter and has had ample opportunity to submit evidence and argument subsequent to the hearing. The desire to provide additional testimony alone does not constitute good cause for another Board hearing. As discussed above, a hearing transcript is of record. This is not a situation where a second hearing is needed before a panel member; rather, the same VLJ who presided over the most recent hearing remains available to decide his appeal. Because neither the Veteran nor his representative have provided good cause supporting his request for a second Board hearing on this matter, an additional hearing will not be afforded. New and Material Evidence The Veteran submitted a claim for entitlement to service connection for memory loss due to a claimed in-service assault, which the RO denied because the evidence did not show a nexus to service in an April 2010 rating decision. He did not appeal this decision, and therefore, the decision became final. Thereafter, in May 2014, the Veteran submitted a service connection claim for a head injury, which he averred resulted from the same assault in service and caused impairment of mental function, to include memory loss. The RO recharacterized the claim as service connection claim for a TBI and denied the claim in a February 2015 rating decision because, again, the evidence did not show a nexus to service. The Veteran filed a timely notice of disagreement. In a September 2019 supplemental statement of the case, the RO found new and material evidence had been received and reopened the Veteran’s service connection claim for memory loss. The RO denied the service connection claim for memory loss because the evidence did not show a nexus to service. Regardless of the RO’s determination as to whether new and material evidence was received to reopen a claim, the Board must address the issue in the first instance because it ultimately affects the Board’s jurisdiction to adjudicate the underlying claim. See Woehlaert v. Nicholson, 21 Vet. App. 456, 46061 (2007). The Board must perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the last final disallowance is “new and material.” Id. If it is, the Board must then reopen the claim and “evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Id. Since the final decision in April 2010, the Veteran has submitted VA and private medical evidence, and sworn testimony before the undersigned providing further evidence that his claimed disabilities were first indicated during active duty service or otherwise etiologically related to active duty service. Therefore, the Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim; that is, whether the Veteran’s disabilities have a nexus to active duty service. The evidence is neither cumulative nor redundant of the evidence of record at the time of the April 2010 rating decision and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Service connection for memory loss is remanded. The Veteran contends that he suffers from memory loss due to an in-service assault. The RO denied the Veteran’s claims because they could not find evidence of any in-service incident or injury. The Board notes that the Veteran’s service treatment records are missing. Despite VA’s best efforts, VA formally found the Veteran’s service treatment records were missing in a December 2009 memorandum. The Board notes that the only service treatment record associated with the Veteran’s record is his August 1956 separation evaluation, on which the Veteran did not report nor was there a diagnosis of any in-service head injury or residuals of a head injury. Given the fact that his service treatment records are missing, VA has a heightened duty to assist the Veteran. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has consistently reported suffering an in-service injury and his medical records demonstrate a current disability of memory loss. Therefore, due to the missing service treatment records and post-separation evidence, a VA examination has been triggered and is necessary to comply with VA’s duty to assist the Veteran. The Board notes the Veteran’s clams file contains two private positive etiology opinions from his treating physicians, Dr.F.G. and Dr. G.S. Unfortunately, neither are probative. Dr. F.G.’s letter is based on an unproven fact – that the Veteran suffered from a head injury during service; and G.S.’s letter contains no rationale for his conclusory findings. A probative medical opinion is factually accurate, fully articulated, and includes sound reasoning for its conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any memory loss disability. The claims folder must be reviewed in conjunction with the examination. For any diagnosis found, the examiner should opine whether it is at least as likely as not (i.e. 50 percent or greater) that the diagnosis is related to an in-service injury or incident. All opinions proffered should include sufficient rationale.   2. Readjudicate the claim. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.