Citation Nr: 0123002 Decision Date: 09/21/01 Archive Date: 09/24/01 DOCKET NO. 98-07 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for epilepsy. REPRESENTATION Appellant represented by: Calvin B. Bennett, III, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from October 1979 through November 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision by the Department of Veterans Affairs (VA) Winston-Salem, North Carolina Regional Office (RO), which found that the veteran had not submitted new and material evidence to reopen his previously denied claim of entitlement to service connection for epilepsy. In a decision dated in May 2000, the Board concluded that the additional evidence received subsequent to a July 1988 rating decision was not both new and material such as to reopen the previously denied claim of entitlement to service connection for epilepsy. The veteran appealed. In March 2001 the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand, vacating the Board's May 2000 decision. REMAND The Board initially notes that subsequent to the March 2001 order of the Court, additional evidence pertaining to the appellant's claim has been submitted by his representative directly to the Board. This evidence has not been previously considered by the RO; however, the appellant's representative in a letter accompanying this evidence waived such initial consideration. See 38 C.F.R. § 20.1304(c) (2000). Nevertheless, in view of the action taken herein, initial consideration of this evidence should be undertaken by the RO. As noted in a joint motion for remand filed at the Court, the appellant's certificate of release or discharge from active duty (DD Form 214) reflects that his separation from service was due to unsuitability, namely apathy and defective attitude. The appellant's service administrative records however are not associated with his claims folder. As these records may disclose observations of behavior that may be pertinent to the adjudication of this appeal they should be obtained for review and consideration. The joint motion also noted that the Board did not provide sufficient discussion in regards to the materiality of a June 1997 report from the Director of the VA Neurodiagnostic Center in Durham, North Carolina, who stated that "[o]ne possible etiology of his seizure disorder was felt to be trauma that occurred in 1979 while in service". As pointed out in the joint remand there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the Department of Veterans Affairs with respect to the duty to assist and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), which held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. VCAA, section 7(a); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the VCAA, a remand in this case is also required for compliance with the notice and duty to assist provisions contained in the new law. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001). In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should contact the veteran and afford him the opportunity to identify and submit any additional pertinent evidence in support of his claim. 2. The RO should request the veteran's complete service personnel and administrative records to include all records pertaining to his performance and fitness as well as his administrative separation from service. 3. The veteran should be afforded a VA neurological examination to determine the etiology of his epilepsy. All indicated testing in this regard should be accomplished. The claims folder must be made available to the examiner for review. It is requested that the examiner elicit a detailed history from the veteran as to the neurological symptoms he has experienced and their date of onset, as well as any head trauma sustained in service or at any time before or after, symptoms following same and any treatment received therefore. Detailed findings should be reported in connection with this examination. Following the examination it is requested that the examiner after reviewing the history obtained from the veteran and the medical records on file to include the recent March 2001 independent medical evaluation provided by Dr. Craig N. Bash, express an opinion as to whether it is as least as likely as not that epilepsy began in service, or if it existed prior to service, increased in severity during service, or was caused by head trauma allegedly sustained in service. The medical opinion should be supported by a complete explanation for the conclusions reached. 4. The RO should then review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475 are complete. In particular, the RO should ensure the new notification requirements and development procedures contained in section 3 and 4 of the Act (to be codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103(A) and 5107) are fully complied with and satisfied. 5. After completion of the requested development of the record, and after assurance of full compliance with the VCAA, the RO should again consider the veteran's claim. If action taken remains adverse to the veteran he and his representative should be furnished a supplemental statement of the case, and they should then be given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. E. Day Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2000).