BVA9506015 DOCKET NO. 93-25 187 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for headaches, claimed as residual of a cerebral contusion. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from March 1951 to February 1955. This appeal arises from an April 1993 rating decision of the St. Petersburg, Florida, regional office (RO). That rating decision denied service connection for headaches, claimed as secondary to head injury in service. REMAND The veteran contends that he has suffered from frequent severe headaches since being struck in the back of the head by a pool cue in service. He also contends that the RO erred in not providing him with a VA examination in order to assess his current condition. The Board of Veterans' Appeals (Board) notes that a prior Board decision dated in October 1984 denied service connection for residuals of cerebral contusion. These claimed residuals included headaches and dizziness. To reopen a previously denied claim, the veteran must submit new and material evidence. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). New evidence means more than evidence which was not previously of record. To be "new" additional evidence must be more than merely cumulative. The additional evidence must also be "material." That is, it must be relevant and probative and there must be a reasonable possibility that, when viewed in the context of all the evidence, both new and old, the additional evidence would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); 38 C.F.R. § 3.156(a) (1994). It does not appear upon initial review of the claims folder that new and material evidence has been submitted since the Board's previous decision. However, the RO's rating decision of April 1993 did not address the issue of new and material evidence. The RO instead adjudicated the claim on the merits without expressly reopening the claim. The veteran was not provided a statement of the case containing the laws and regulations pertaining to reopening a final Board decision. The United States Court of Veterans Appeals (Court) has made it clear that neither the RO nor the Board may properly consider a claim on the merits when new and material evidence has not been submitted. Such consideration and adjudication is in excess of statutory jurisdiction, authority and limitations. "[J]urisdiction does indeed matter and it is not 'harmless' when the VA during the claims adjudication process fails to address threshold jurisdictional issues." McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). Based on the foregoing, the Board is of the opinion that the RO must formally determine whether new and material evidence has been received to reopen the veteran's claim. If the RO determines that the claim has been reopened, it should then address the issue of whether or not the duty to assist warrants the scheduling of a VA examination as requested by the veteran. If the RO determines that the claim has not been reopened, the veteran and his representative must be provided with an appropriate supplemental statement of the case containing the laws and regulations with respect to new and material evidence. It is further noted that the veteran has reported suffering from headaches since the head trauma in service. However, it is not clear whether the headaches were treated by physicians. The RO must ask the veteran to provide a list of treatment for headaches since service. VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In view of the foregoing, the case is REMANDED to the RO for the following: 1. The veteran should be asked to submit the names of any health care providers who have treated him for headaches since his discharge from active service in 1955. If he has not received medical treatment, he should indicate so. After having obtained the names provided by the veteran, the RO must obtain copies of all the treatment records which are not already on file. If any records are not available, that fact should be noted. 2. Subsequently, the RO must formally determine whether new and material evidence has been received since the Board's October 1984 decision to reopen the veteran's claim for entitlement to service connection for headaches, claimed as residual of a cerebral contusion. 3. If the RO determines that new and material evidence has been submitted and the claim is reopened, it should then determine whether a VA neurologic examination is necessary to properly adjudicate the claim for service connection for headaches, claimed as residual of a cerebral contusion. If such an examination is determined to be warranted, it should be scheduled. 4. If the RO determines that new and material evidence has not been submitted and the claim is not reopened, it must provide the veteran and his representative with an appropriate supplemental statement of the case containing the laws and regulations with respect to new and material evidence. The veteran and his representative should be provided an appropriate period of time in which to respond. Following completion of these actions, and if otherwise appropriate, the case should be returned to the Board for further appellate consideration. No action is required by the veteran until he receives further notice. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).