Citation Nr: 21026796 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-38 804 DATE: May 4, 2021 ORDER New and material evidence has been received to reopen a previously denied claim for service connection for a traumatic brain injury (TBI); to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a TBI is remanded. FINDING OF FACT Evidence received since the July 2015 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, and triggers a duty to assist. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for a TBI. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2002 to August 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has separately appealed claims for entitlement to service connection for a low back disability and entitlement to a total disability rating based on individual unemployability based on service-connected disabilities (TDIU). In March 2021, the Veteran requested a hearing specifically for these claims. He has not requested a hearing for his claim for service connection for a TBI. As such, the Veteran is not prejudiced by the Board's decision herein and will be scheduled for a hearing regarding his claims for a low back disability and TDIU. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a TBI. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). 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. 38 C.F.R. § 3.156 (a). 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly-submitted 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's duty to assist or through consideration of an alternative theory of entitlement. 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). Service connection for a TBI was denied in a July 2015 rating decision on the basis that there were no complaints, treatment, or diagnosis of the condition in service, no evidence of an event in service, and no evidence of a current diagnosis. The Veteran was notified of this decision in a July 2015 letter. The Veteran did not initiate appeal of this decision regarding his claim for a TBI. As new and material evidence was not received within a year of notice of the July 2015 rating determination, it became final based on the evidence then of record. 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, 1367 (Fed. Cir. 2011). The Board acknowledges that the Veteran's representative argued in a November 2020 filing that an April 2016 notation in the Veteran's VA medical records that the Veteran has "significant history of concussion, head injury" amounts to new and material evidence submitted within one year of the July 2015 rating decision, such that the July 2015 decision was not final. However, review of this notation reveals that it is one of the Veteran's self-reported chief complaints at an audiology evaluation, not a diagnosis or evidence of evaluation or treatment for a TBI by a medical provider. Thus, it amounts to no more than the Veteran alleging he has a TBI, which was an assertion before the RO at the time of the July 2015 rating decision. Moreover, the competency of evidence is not presumed when evaluating whether a claim should be reopened, and the record does not demonstrate the Veteran has the medical knowledge necessary to diagnose himself with a TBI. Such a determination requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the April 2016 notation was not new or material and did not prevent the July 2015 rating decision from becoming final. The Veteran sought to reopen his claim in September 2017. Evidence associated with the claims file includes notations in the Veteran's VA treatment records suggesting he has been diagnosed with a TBI by an outside, non-VA provider. Specifically, in March 2018, the Veteran reported that he was seen by a non-VA provider and evaluated/diagnosed with TBI. In April 2018, the Veteran reported that he was "getting [an] outside evaluation for TBI from Allegheny." As noted above, the credibility of this lay evidence is presumed for purposes of reopening, and this evidence addresses a possible diagnosis, a previously unestablished fact necessary to substantiate the claim. The Veteran's statements also raise a reasonable possibility of substantiating the claim by triggering the VA's duty to assist; thus, it is material. For these reasons, after resolving any reasonable doubt in favor of the Veteran, and given the low threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim, the Board finds that reopening of the previously denied claim of service connection for a TBI is warranted. REASONS FOR REMAND Entitlement to service connection for a TBI is remanded. As noted above, the Board has found that the Veteran's claim of entitlement to service connection for TBI is reopened based upon the receipt of new and material evidence. In March 2018, the Veteran reported at a psychiatric pharmacy consultation that he had been diagnosed with a TBI by an outside, non-VA medical provider. In April 2018, the Veteran reported that he was "getting [an] outside evaluation for TBI from Allegheny." However, no attempts to obtain these records have been made. As the possible existence of medical records confirming a diagnosis of a TBI has triggered the Board's duty to assist, a remand is warranted to obtain these records. Notably, these assertions are distinguishable from the April 2016 notation of significant head injury because the March and April 2018 assertions indicate a medical professional has diagnosed or evaluated the Veteran for a TBI. Contrary to the April 2016 notation, evidence noted by the Veteran in March and April 2018 would be competent evidence of a diagnosis. As such, a remand is warranted to obtain these potentially outstanding private treatment records and to conduct any additional development warranted thereafter. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all private medical providers who have treated him for traumatic brain injury (TBI), including his April 2018 reference to an "outside evaluation for TBI from Allegheny." Associated any records obtained with the claims file. 2. If and only if a diagnosis of a TBI is identified, schedule the Veteran for VA examination to determine the etiology of his TBI. In this case, the examiner is asked to conduct a review of the record, then opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's TBI was incurred in or is otherwise etiologically related to the Veteran's military service. A complete rationale for any opinion must be provided. A complete rationale is one that contains clear conclusions and supporting data and a reasoned medical explanation connecting the two. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.