Citation Nr: 1007665 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 06-12 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Whether new and material evidence has been received to reopen a claim of service connection for a seizure disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1967 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2004 decisional letter by the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). Although the RO subsequently (in a March 2006 statement of the case (SOC)) reopened the claim of service connection for seizures and decided the matter on the merits, the question of whether new and material evidence to reopen the claim has been received must be addressed in the first instance by the Board because such issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The matter of service connection for a seizure disorder on de novo review is being remanded to the RO. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. An unappealed October 1971 rating decision denied service connection for a seizure disorder based on findings that such disability was not manifested in service or until 18 months following separation (and was unrelated to service). 2. Evidence received since the October 1971 rating decision suggests that the Veteran's seizure disability might be related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for a seizure disability; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW Evidence received since the October 1971 rating decision is new and material, and the claim of service connection for a seizure disorder may be reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants the portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on this matter (as any deficiency would be nonprejudicial). Legal Criteria, Factual Background, and Analysis An October 1971 rating decision denied the Veteran's initial claim of service connection for a seizure disorder. He was properly notified of the decision and of his appellate rights, and he did not appeal that determination. Accordingly; the October 1971 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105. The instant claim to reopen was received in March 2004. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 5108. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. Id. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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. New and material evidence can be neither cumulative nor 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. 38 C.F.R. § 3.156(a) When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (to include epilepsies and organic disease of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree within specified period of time postservice (1 year for epilepsies and organic disease of the nervous system). See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, there must be: (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. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance in the evidence regarding service origin, reasonable doubt is to be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The October 1971 rating decision denied service connection for a seizure disorder based on findings that such disability was not manifested in service, and was first shown approximately 18 months postservice (and therefore was unrelated to service). Evidence of record in October 1971 included the Veteran's service treatment records (STRs) which show that in July 1969 he sustained a head injury, as he was kicked in the right eye, sustaining lacerations of right infraorbital area. It was noted that there was no evidence of fracture. On service separation examination there were no pertinent complaints or findings. The evidence also included an April 1971 VA hospitalization summary which notes that the Veteran was seen and treated for a seizure disorder. It was noted that the onset was about three weeks prior to the hospitalization, and that there was no history of recent trauma (the head trauma in service was not noted). Evidence added to the record since October 1971 includes December 2004 and January 2005 statements from the Veteran's private physician, M. R. N., M.D., which note the Veteran's history of head trauma in service. The January 2005 statement includes the opinion that the head trauma is "more likely than not" the cause of the Veteran's seizures. The Veteran also submitted a statement from his sister essentially to the effect that she was aware that upon his return from Vietnam he suffered a seizure, and that he related to her that he was kicked in the head while serving in Vietnam. Inasmuch as the Veteran's claim was previously denied essentially based on a finding that there was no nexus between the Veteran's seizure disorder and his service, for evidence to be considered "new and material", it would have to be competent evidence not of record in October 1971 that relates the Veteran's seizures to his service. The January 2005 opinion by Dr. M.R.N. is precisely such evidence. It was obviously not of record in October 1971, and it relates the Veteran's seizure disorder to documented head trauma in service. Taken at face value (as required for the purpose of determining whether the claim should be reopened), it relates to the unestablished fact necessary to substantiate the Veteran's claim of service connection for a seizure disorder, and raises a reasonable possibility of substantiating the claim. Therefore, it is both new and material, and the claim must be reopened. ORDER The appeal to reopen a claim of service connection for a seizure disorder is granted. REMAND Although the Veteran received adequate notice of what is needed to substantiate the underlying claim of service connection for a seizure disorder on de novo review, the Board finds that the duty to assist provisions of the VCAA are not met in this matter. The Veteran's service treatment records (STRs) show that he sustained head trauma in July 1969 (when he was kicked in the right eye). A postservice VA hospitalization summary reveals that apparently in late March 1971 (approximately 18 months postservice, and less than two years following the head trauma in service), the Veteran had the initial documented manifestation of what was ultimately diagnosed as seizure disorder, major motor, possible temporal lobe. His private physician has opined that his seizure disorder is related to the documented trauma in service. He has not been examined by VA to obtain a medical advisory opinion in the matter. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that a VA medical examination to secure a nexus opinion is necessary when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) [there is] insufficient competent medical evidence on file for the Secretary to make a decision on the claim. The Court has held that the requirement that a disability "may be associated" with service is a "low threshold" standard. Inasmuch as there is evidence the Veteran sustained head trauma in service, evidence that he subsequently developed a seizure disability, and evidence suggesting the two may be related, the low threshold standard of McClendon is met. A VA examination to secure a nexus opinion is clearly necessary. The Veteran submitted statements from his private physician, M. R. N, M.D., and a VA Form 21-4142, Authorization and Consent to Release Information to VA, for records from Dr. M.R.N. VA treatment records also reflect that the Veteran has received treatment from S. F., a private neurologist. The record does not reflect any attempt on VA's part to secure records of such treatment. Any unassociated records of treatment the Veteran received for a seizure disorder since his discharge from service may contain information pertinent to his claim, and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify the providers of any and all treatment and evaluations he has received for seizures since his discharge from service, to provide any releases necessary for VA to secure records of any such private treatment. The RO should secure copies of complete clinical records of all such evaluations and treatment the Veteran received from the identified sources (and specifically records from Drs. M.R. N. and S. F.). If any private provider does not respond to the RO's request, the Veteran should be so notified, and advised that ultimately it is his responsibility to ensure that such records are received. 2. Thereafter, the RO should arrange for the Veteran to be examined by a neurologist to determine whether his seizure disability is related to service, and specifically to the head trauma documented therein. The Veteran's claims folder (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on review of the Veteran's pertinent medical history and with consideration of sound medical principles, the examiner should provide an opinion responding to the following: Is it at least as likely as not (50 percent or better probability) that the Veteran's seizure disability is related to his head injury in service? The examiner must explain the rationale for all opinions given. If the opinion disagrees with that offered by Dr, M.R.N. in January 2005, the examining physician must explain the basis for the disagreement (with citation to supporting factual evidence). 3. The RO should then re-adjudicate the claim of service connection for a seizure disorder (de novo). If it remains denied, the RO should issue an appropriate supplemental SOC, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs