Citation Nr: 21026510 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-63 628 DATE: May 3, 2021 ORDER New and material evidence has not been received to reopen the claim for service connection for residuals of a traumatic brain injury (TBI). The petition to reopen is denied. FINDINGS OF FACT 1. An unappealed September 2013 rating decision denied the claim of entitlement to service connection for TBI residuals, because the evidence did not show a then-current TBI disability that was incurred in or related to the Veteran's military service. 2. Evidence received since the September 2013 rating decision was not previously considered by agency decision makers and is not cumulative and redundant of evidence already of record; but none of the evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection for TBI residuals. CONCLUSIONS OF LAW 1. The September 2013 rating decision denying service connection for TBI residuals is final and binding. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for TBI residuals have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1999 to September 2003. The AOJ's October 2016 rating decision considered the Veteran's claims for service connection for residuals of TBI to be reopened and denied the claim on the merits. By history, the unappealed September 2013 rating decision denied a service-connection claim for residuals of TBI. Notably, the Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen the service-connection claim for residuals of TBI. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). The Veteran testified at a Board virtual hearing in February 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. The VLJ left the record open for an additional 30 days, until March 9, 2021, for the Veteran and his representative to submit any additional evidence. However, it does not appear the Veteran or his representative submitted any additional evidence. The file is again before the Board for further appellate review. New and Material Evidence The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen the claim for service connection for TBI residuals The RO's September 2013 rating decision denied service connection for TBI residuals. Initially, the RO acknowledged that a review of the service treatment records showed that the Veteran hit his head on the inside of a freezer box, with no loss of consciousness. An August 2013 VA TBI examiner found no pathology to render a diagnosis of traumatic brain injury, and specifically found the Veteran does not have and/or has not ever had a TBI or residuals of a TBI. The RO denied service connection for TBI residuals, also claimed as head injury and hard time concentrating, because the medical evidence of record failed to show that this disability had been clinically diagnosed. See generally 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran did not appeal, so the denial became final. 38 U.S.C. § 7105; 38 U.S.C. §§ 20.302, 20.1103. No evidence was constructively or physically of record within one year of the September 2013 determination. 38 C.F.R. § 3.156 (b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The evidence of record at the time of the final and binding September 2013 rating decision consisted of personal statements, service treatment records, post-service VA treatment records, and the August 2013 VA examination report, including a color photograph of the Veteran's service-connected scalp scar. In August 2016, the Veteran's representative requested a review of the TBI claim. Therefore, the Board must consider the new evidence added to the record, consisting of the Veteran's personal statements and Board hearing testimony, additional photos of the Veteran's scalp scar, lay statements from friends and family, and VA treatment records. The Veteran testified to receiving an in-service head injury while on board the U.S.S. Saipan and then needing surgical treatment to clean out an infectious gash, and that he has had headaches, memory loss, and neck pain since that time. However, during testimony, he denied any current VA or private treatment, including any medical findings that might support his claim of a current diagnosis of a TBI disability. The new evidence also includes an August 2016 VA TBI examination that specifically found there was no current TBI or TBI residuals that can be diagnosed, because there is no pathology to render a diagnosis. Initially, the Veteran's testimony and additional lay statements are repetitive of previously made contentions of an in-service head injury on board a naval ship. Even recently submitted photos of a scalp scar are redundant of another photo of a scalp scar that was previously of record. Nonetheless, there is no new evidence showing that his complaints of residuals of an in-service TBI have been attributed to any diagnosed TBI or TBI residuals disability, that is, distinct from his service-connected scalp scar and headaches symptomatology. See, e.g., August 2016 VA TBI examination. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). (Continued on the next page) Thus, the Veteran must still establish the missing element of a current disability to reopen the claim. Thus, any new evidence is not material within the meaning of 38 C.F.R. § 3.156 (a) because it does not raise a reasonable possibility of substantiating the claim and does not trigger VA's duty to assist. As the evidence received since the most recent final denial is not new and material, the Veteran's claim of entitlement to service connection for TBI residuals is not reopened. The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biswajit Chatterjee, 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.