BVA9501749 DOCKET NO. 93-07 671 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for residuals of a head injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Associate Counsel INTRODUCTION The veteran had active service from December 1945 to June 1946, and from August 1948 to January 1950. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 1991 by the Department of Veterans Affairs (VA) North Little Rock, Arkansas, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by failing to reopen and grant his claim for service connection for residuals of a head injury. He asserts that a head injury which occurred during service caused or contributed to post service cerebrovascular accidents. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not presented new and material evidence to reopen a claim for service connection for residuals of a head injury. FINDINGS OF FACT 1. The veteran's claim for service connection for residuals of a head injury was denied by the RO in December 1955, and the veteran did not file an appeal. 2. There is no reasonable possibility that the additional evidence presented since December 1955, when viewed in the context of all of the evidence, both old and new, would change the outcome of the prior decision. CONCLUSIONS OF LAW 1. The additional evidence presented since December 1955 is not new and material, and the veteran's claim for service connection for residuals of a head injury has not been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1993). 2. The decision by the RO in December 1955 which denied service connection for residuals of a head injury is final. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). The RO previously denied the veteran's claim for service connection for residuals of a head injury in a rating decision of December 1955. The evidence which was of record at that time included the veteran's service medical records which showed that he was treated for a head injury during service. A hospital discharge summary dated in December 1948 shows that the final diagnoses were (1) Contusion of the skin, vertex of head, mild, incurred when he was struck by shipping crate while unloading boxcar in railroad yards of Hot Springs, Arkansas, on 22 November 1948, cured; and (2) observation for head injury, incurred as in diagnosis 1, not found. Service medical records also showed that the veteran was again hospitalized in May 1949 with complaints of headaches, nausea, emesis, and diarrhea. The veteran stated that the symptoms had been recurring since his prior head injury. Following a period of medical observation, the diagnosis was "no disease found, intracranial injury suspect". A report of a medical examination conducted in January 1950 for the purpose of the veteran's separation from service shows that examination of the veteran's head, face and neck revealed no significant abnormalities. It was noted that he had no operations, serious injuries or illnesses. The evidence of record at the time of the December 1955 rating decision also included a report of a disability evaluation examination conducted by the VA in November 1955. The reports showed that the veteran reported a complaint of having headaches which he attributed to a head injury during service. Following neurological examination, the only diagnosis was endocrine dysfunction with some anxiety features. Based on the evidence which was of record in December 1955, the RO found that service connection for residuals of a head injury was not warranted as residuals of a head injury were not found on last examination. The veteran was promptly notified of the decision and his appeal right, but he did not appeal the decision. In order to reopen a claim which was denied previously, a veteran must present new and material evidence. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). Otherwise, the prior denial is final. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1993). The term "new and material evidence" means evidence not previously submitted to the agency decision makers which bears directly and substantially upon the matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156 (1993). There must be a reasonable possibility that the additional evidence, when viewed in the context of all of the evidence, both old and new, would change the outcome of the prior decision. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence presented since December 1955, however, is not sufficient to reopen the veteran's claim. The additional evidence includes testimony given by the veteran during a hearing held in September 1992. The veteran gave his opinion that his head injury during service caused or contributed to his recent cerebrovascular accidents. The Board notes, however, that the veteran's testimony is not competent evidence on that point as he does not have the qualifications necessary to offer a medical opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992). See also Moray v. Brown, 5 Vet.App. 211, 214 (1993), in which the United States Court of Veterans Appeals held that lay assertions of medical causation cannot serve as a predicate to reopen a previously disallowed claim. The additional evidence also includes numerous post service medical records dating from many years after the veteran's service medical records. For example, a VA hospital discharge summary dated in October 1982 shows that the veteran was treated for disorders including temporary ischemic attacks. The diagnoses included probable cerebral vascular insufficiency. Similarly, a VA hospital discharge summary dated in May 1988 shows that the veteran was hospitalized for treatment of a right hemisphere cerebrovascular accident. However, none of the records contains a medical opinion relating the veteran's recent cerebral vascular insufficiency or the cerebrovascular accident to the head injury which occurred during service. In short, the post service medical records do not provide any support for the veteran's claim for service connection for residuals of a head injury. For the foregoing reasons, the Board finds that there is no reasonable possibility that the additional evidence presented since December 1955, when viewed in the context of all of the evidence, both old and new, would change the outcome of the prior decision. The additional evidence presented since December 1955 is not new and material, and the veteran's claim for service connection for residuals of a head injury has not been reopened. Accordingly, the December 1955 RO decision denying service connection for residuals of a head injury is final. ORDER New and material evidence not having been presented to reopen a claim for service connection for residuals of a head injury, the benefit sought on appeal is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.