Citation Nr: 21025755 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-31 535 DATE: April 28, 2021 ORDER New and material evidence having been received, the claim for service connection for residuals of a head injury, is reopened. REMANDED Entitlement to service connection for residuals of a head injury is remanded. Entitlement to service connection for a headache disability is remanded. FINDINGS OF FACT 1. In October 1977, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for residuals of a head injury; he did not appeal this decision. 2. Additional evidence associated with the claims file since the October 1977 rating decision is not cumulative and redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate the claim for entitlement to service connection for residuals of a head injury, to include headaches, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1977 rating decision in which the RO denied the claim for service connection for head injury residuals is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. As evidence received since the October 1977 rating decision is new and material, the criteria for reopening the claim for service connection for residuals of a head injury, to include headaches, have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from February 1964 to February 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before the Board at a March 2021 virtual hearing. A transcript has been associated with the claims file. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. New and material evidence having been received, the claim for service connection for residuals of a head injury is reopened. A claim for service connection for residuals of an injury to the back of the head was originally denied in an October 1977 decision on the basis that the Veteran’s service treatment records did not reveal complaints, medical findings, diagnosis or treatment for an injury to the back of the head. The RO notified the Veteran of its decision and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 3.156(b), 20.1103. The Veteran’s petition currently before the Board to reopen his claim for service connection for residuals of a head injury, to include headaches, was received by the RO in October 2016. The RO denied the claim in a January 2017 rating decision. The Board must now address the issue of the receipt of new and material evidence in the first instance. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board finds the Veteran has submitted new and material evidence since the October 1977 decision denying service connection for residuals of an injury to the back of the head. The Veteran submitted testimonial evidence in March 2021 that he had suffered from his condition continuously since service, had received private treatment for his condition, and that such records may be outstanding. This evidence was not before adjudicators when the Veteran’s claim was last denied in October 1977, and the evidence is not cumulative or redundant of the evidence of record at the time of that decision. As this evidence potentially addresses the start of the Veteran’s headaches and potentially related head injury sequelae, it also relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of a head injury, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a head injury is remanded. 2. Entitlement to service connection for a headache disability is remanded. During his March 2021 Board hearing, the Veteran testified that he had suffered from his condition continuously since service, had received private treatment for his condition, and that such records may be outstanding. However, the Veteran’s claims file does not show that these records have been associated with his claims file yet. These private records could inform as to whether the Veteran has suffered from his disability continuously since service. As a result, a remand is needed to obtain these potentially relevant outstanding private treatment records. In addition, the Veteran has not been afforded an examination to assess the nature and etiology of his claimed disabilities. The Veteran asserts that a February 17, 1966 in-service treatment record noting care for a laceration above his eye confirms an in-service head injury. His Report of Medical History upon discharge in 1967 also notes a history of frequent and severe headaches. On remand, the Veteran should be scheduled for examinations. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities where he sought treatment for residuals of a head injury, to include headaches, since separation from service. Ask the Veteran to submit, or authorize VA to obtain on his behalf, any outstanding records of private care. Take all appropriate action to secure identified records. 2. Schedule the Veteran for head injury examination. The examiner should review the claims file and take a history from the Veteran of the progression of the claimed disability. Upon review of the record, examination and interview of the Veteran, the examiner should respond to the following: a) Please identify all current head injury residuals, if any. b) Please indicate whether it is at least as likely as not (50 percent or greater probability) that any current head injury residuals had onset in, or are otherwise related to the head injury the Veteran describes during service. If there is a medical reason that either supports, or calls into question, the Veteran’s report of having incurred a head injury in service, this should be explained. All opinions should be supported by a medical explanation or rationale. 3. Schedule the Veteran for headaches examination. The examiner should review the claims file and take a history from the Veteran of the progression of the claimed disability. Upon review of the record, examination and interview of the Veteran, the examiner should respond to the following: Please indicate whether it is at least as likely as not (50 percent or greater probability) that any current headache disability had onset in, or is otherwise related to the Veteran’s period of active duty service, to include an in-service head injury and/or tumor removal. Please consider the Veteran’s report of frequent and severe headaches on his 1967 Report of Medical History. All opinions should be supported by a medical explanation or rationale. 4. When the development requested has been completed, readjudicate the claim. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.