Citation Nr: 0727433 Decision Date: 08/31/07 Archive Date: 09/11/07 DOCKET NO. 05-40 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim for residuals of a head injury with post-traumatic headaches. 2. Entitlement to service connection for a seizure disorder secondary to a head injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and R.E. ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from May 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas, which denied the benefits sought on appeal. The issue of service connection for a seizure disorder secondary to a head injury will be addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. An unappealed December 1988 rating decision denied service connection for residuals of a head injury. 2. The evidence received since the December 1988 rating decision relate to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The unappealed December 1988 rating decision that denied service connection for residuals of a head injury is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). 2. The evidence presented since the December 1988 rating decision is new and material, and the claim of entitlement to service connection for residuals of a head injury with post- traumatic headaches is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for residuals of a head injury with post-traumatic headaches on the basis of a claimed head injury incurred during active service. However, the Board must first determine whether new and material evidence has been submitted to reopen his claim since an unappealed rating decision dated in December 1988. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). For the reasons set forth below, the Board finds that the evidence submitted is sufficient to reopen the claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the RO initially denied service connection for residuals of a head injury in a December 1988 rating decision. The only medical evidence at that time was a VA medical examination in May 1988, which included an x-ray of his spine. The RO requested the veteran's service medical records in April 1988 and the service department replied in May 1988 that the records are missing and presumed destroyed in the fire at the National Records Center in 1973. In light of these findings, the RO concluded in a December 1988 rating decision that there was no evidence of a head injury in service. The VA notified the veteran of its decision and his appellate rights in a letter dated in January 1989. Although the veteran filed a timely Notice of Disagreement as to the December 1988 rating decision and a Statement of the Case was issued in April 1989, the veteran did not file a Substantive Appeal. Therefore; the 1988 rating decision is final and not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105(c); see also 38 C.F.R. §§ 20.302, 20.1103. In July 2004, the veteran attempted to reopen his claim for service connection for residuals of a head injury with headaches on the basis of new and material evidence. Under VA law and regulations, if the veteran presents or secures new and material evidence, the Secretary shall reopen and review the former disposition of that claim. See 38 U.S.C.A. § 5108. When reopening an appellant's claim, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" means existing evidence not previously submitted to agency decision makers. "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. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or 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. Second, if VA determines that the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winter v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). The regulations require VA to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The newly presented evidence need not be probative of all the elements required to award the claim, but it must be probative as to each element that was a specified basis for the last disallowance. Id at 284. In addition, in cases involving missing service medical records, the VA has a heightened obligation to assist the claimant in the development of the case. This heightened duty to assist includes searching for alternate methods of proving service connection. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (holding that, where the veteran's service medical records are unavailable through no fault of the veteran, there is a heightened obligation for VA to assist the veteran in the development of his case and to provide reasons or bases for any adverse decision rendered without these records); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). As a result, VA requested morning and sick reports from the service department and VA received four reports in March 2005. The evidence that must be considered in determining whether there is a basis for reopening the veteran's claim is evidence that has been added to the record since the final December 1988 rating decision. Since that decision, the evidence associated with the claims file includes two buddy statements in support of his claim, VA outpatient treatment records from November 2003 to January 2005, four morning reports and sick reports from the service department, and testimony from a video conference hearing in July 2006. The Board finds that these records are "new" in that they were not of record at the time of the December 1988 rating decision. These records also are material as they provide evidence that the veteran went to sick bay twice in June 1954 at the Army Hospital in Fort Sill, Oklahoma and two buddy statements confirm that a head injury occurred in service. Also, since this evidence includes relevant service department records, which are defined as new and material evidence, 38 C.F.R. § 3.156 (c), the Board concludes that new and material evidence has been submitted. Accordingly, since the evidence submitted relates to an unestablished fact necessary to substantiate the claim and which raises a reasonable possibility of substantiating the claim; the veteran's previously denied claim for service connection for head injury residuals with post-traumatic headaches is reopened, and to this extent only, the appeal is granted. 38 C.F.R. § 3.156(a). However, the Board also finds that the medical evidence of record is not sufficient to decide the veteran's claim and that a VA examination is necessary, as will be explained below. ORDER New and material evidence having been received, the veteran's claim of entitlement to service connection for residuals of a head injury with post-traumatic headaches has been reopened and, to this extent only, the appeal is granted. REMAND Having reopened the veteran's claim for service connection for residuals of a head injury, the Board is of the opinion that a VA examination is necessary. The evidence associated with the claims file since the December 1988 rating decision now tends to support the veteran's contention that he sustained a head injury during service. However, whether the veteran has any residuals of that injury is a medical question that the veteran, the RO and the Board are not competent to answer. Thus the need for a VA examination is demonstrated. Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the veteran will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: The veteran should be afforded an examination to ascertain whether he has any residuals of the head injury he sustained during service. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the May 1988 VA examination report and subsequently dated medical records, and following this review and the examination offer comments and an opinion as to whether the veteran has residuals of the head injury he describes as having occurred during service, including post traumatic headaches and a seizure disorder. For purposes of this opinion, the examiner should assume that the veteran did sustain a head injury as he described at the time of the May 1988 examination. The examiner should specifically indicate whether any headache and seizure disorder that may be present are causally or etiologically related to the service head injury, and the examiner should also comment on the presence or absence of the "old scar tissue from the head injury" reported at the time of the May 1988 VA examination. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs