Citation Nr: 21032772 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-22 578 DATE: May 27, 2021 ORDER New and material evidence having been received, the claim for service connection for a brain injury, to include headaches and dizziness, is reopened. REMANDED Entitlement to service connection for a brain injury, to include headaches and dizziness, is remanded. Entitlement to special monthly compensation (SMC) based on the regular need for aid and attendance of another person is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in October 2013, the Veteran was denied service connection for a brain injury 2. The evidence associated with the claims file subsequent to the October 2013 decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for a brain injury. CONCLUSIONS OF LAW 1. The October 2013 rating decision that denied service connection for a brain injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a brain injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1979 to February 1985. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in July 2018 to afford the Veteran an opportunity to submit missing private treatment records and to obtain updated VA treatment records and an adequate medical opinion as to the nature and etiology of the Veteran's brain injury. In compliance with the July 2018 remand, the AOJ sent the Veteran a letter requesting that he submit authorizations to release information for Wadley Care Center, Westbrook Gardens, and any correctional facility where the Veteran received treatment. The Veteran did not respond to the January 2019 request. New medical opinions for SMC and service connection for a brain injury were associated with the file in March 2021. The Board finds that the March 2021 medical opinions were insufficient. To the extent that the requested development was not substantially complied with regarding the claims for SMC and service connection for a brain injury, those claims are not ready for appellate review and are addressed in the Remand portion of this decision. Id. New and material evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran was denied service connection for a brain injury in an October 2013 rating decision because there was no evidence that the Veteran's brain injury began in or was caused by his service. The Veteran did not timely appeal the October 2013 rating decision, and no new evidence was received within one year. Therefore, that decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.156 (b). Service connection for a brain injury may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the prior final decision, additional VA examinations have been associated with the file. Additionally, the Veteran was recently awarded service connection for posttraumatic stress disorder (PTSD). In March 2019, a VA examiner noted that PTSD and major neurocognitive disorder can be clinically associated indicating that the two conditions may be related. This evidence is new in that it was not associated with the file at the time of the October 2013 rating decision. Nor is the evidence cumulative or redundant of any evidence already of record. This new evidence raises a reasonable possibility that the Veteran has a current disability that was either (a) caused by or (b) aggravated by a service-connected disability thereby substantiating the Veteran's claim. Hence, the low threshold for meeting the criteria for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for a brain injury is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for a TBI, to include headaches and dizziness is remanded. A March 2019 VA examination report suggests the Veteran's TBI could be etiologically linked to his service-connected PTSD. The March 2019 examiner was unable to differentiate which of the Veteran's psychiatric symptoms were attributable to either diagnoses. The examiner reasoned that the conditions are co-occurring, and symptoms overlap. Specifically, the examiner noted the two conditions can be clinically associated. The examiner went on to opine that the Veteran's TBI was not caused by his PTSD. However, the examiner did not opine as to whether the Veteran's TBI was aggravated by his PTSD. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of "aggravation" is pertinent in order for the Board to properly adjudicate the Veteran's claim. Additionally, the Board notes that if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination report). Therefore, an addendum medical opinion addressing aggravation is needed for proper adjudication of the Veteran's claim. 2. Entitlement to SMC based on the regular need for aid and attendance of another person is remanded. In the July 2018 remand directives, the Board requested an opinion as to whether the Veteran, as a result of his TBI, is under an incapacity that requires care and assistance of another person on a regular basis to protect him from the hazards or dangers incident to his daily environment. The directive clarified that the request was made in light of the fact that the Veteran was seeking service connection for the TBI. In March 2019, a VA examiner returned a negative nexus opinion stating that the Veteran was not service connected for the TBI and thus any incapacitation was not related to his service. The examiner did not opine as to whether the Veteran was incapacitated or required regular need for aid and attendance due to his brain injury. Therefore, further remand is necessary to ensure compliance with the March 2019 remand directives. Finally, because a decision on the issue of service connection for a TBI could significantly impact a decision on the issueof SMC, the issues are inextricably intertwined. A remand of the claim for SMC is required. The matters are REMANDED for the following action: 1. Afford the Veteran another opportunity to complete a VA Form 21-4142 for the Wadley Care Center and Westbrook Gardens, as well as the Oklahoma Department of Corrections. If the VA Form 21-4142s are received, request the authorized records from any identified provider. 2. Forward the entire claims file in electronic records to the March 2019 examiner, or if that examiner is unavailable to a suitably qualified VA examiner. The examiner should review the claims folder and acknowledge such review. If additional examination is indicated, it should be scheduled in accordance with applicable procedures and all indicated studies should be performed. Following a review of the claims file, the reviewing examiner is requested to: a. Opine as to whether the Veteran's TBI, to include headaches and dizziness, is at least as likely as not aggravated beyond its natural progression by his service-connected PTSD. b. Opine as to whether it is at least as likely as not that the Veteran, as a result of his TBI is under an incapacity that requires care and assistance of another person on a regular basis to protect him from the hazards or dangers incident to his daily environment. The examiner should answer this question regardless of whether a decision has been reached as to the Veteran's service connection for his TBI. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.