Citation Nr: 1320115 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-38 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date earlier than June 10, 2003, for the grant of service connection for a seizure disorder. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant, Ms. J. M., and Ms. L. H. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from October 1979 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which effectuated the Board's January 2009 reopening of the claim of entitlement to service connection for a seizure disorder and granting the benefit. The RO assigned an effective date of June 10, 2003, for the award of service connection for seizure disorder. The Veteran has appealed the effective date assigned. In connection with her appeal, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in March 2011. A transcript of the hearing is associated with the claims file. In a September 2011 decision, the Board denied an effective date earlier than June 10, 2003, for the grant of service connection for a seizure disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court vacated the September 2011 Board decision, and remanded the case to the Board for further proceedings consistent with a June 2012 Joint Motion for Remand (Joint Motion). FINDINGS OF FACT 1. A January 2009 Board decision determined that new and material evidence, which included a September 1986 emergency room note, had been received and reopened and granted the previously denied claim of entitlement to service connection for a seizure disorder. 2. The Veteran first filed a claim for service connection for a seizure disorder on April 7, 1989. 3. There was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for a seizure disorder prior to April 7, 1989. CONCLUSION OF LAW The criteria for the award of an effective date from April 7, 1989, but no earlier, for the award of service connection for a seizure disorder have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the Board's favorable determination, no further discussion of VCAA compliance is needed at this time. Analysis The Veteran argues that she warrants an earlier effective date for the award of service connection for a seizure disorder. Specifically, the Veteran and her attorney assert that an effective date is warranted from April 7, 1989, the date her original claim for service connection for a seizure disorder was received. By way of background, the Veteran's original April 1989 claim for service connection for a seizure disorder was denied in a September 1989 rating decision. The Veteran appealed the denial, and in a May 1993 decision, the Board denied the claim for entitlement to service connection for a seizure disorder. In that decision, the Board found that the Veteran did not sustain a head injury, including a loss of consciousness, or develop seizures in service. It noted that the 1987 medical records described the Veteran's seizure as "new onset seizures." The Veteran did not appeal the Board's denial to the Court. Thus, it is final. In March 2001, the Veteran submitted an application to reopen the claim. The RO denied reopening the claim in August 2001, determining the Veteran had not submitted new and material evidence to reopen the claim. She was provided with her appeal rights at that time, and did not appeal the decision. Thus, the August 2001 decision is final. The next time the Veteran submitted an application to reopen the claim for entitlement to service connection for a seizure disorder was on June 10, 2003. In January 2004, the RO denied reopening the claim, and the Veteran appealed the decision. She had a hearing before the Board in November 2008. In a January 2009 decision, the Board reopened the claim and granted entitlement to service connection for a seizure disorder. In determining that the claim should be reopened, the Board cited to a service hospital record, which it found had been submitted during the then-current appeal and found that the hospital record established that the Veteran sustained a head injury in service and that the evidence was in equipoise as to whether a seizure disorder had its onset in service and granted the benefit. In the March 2009 rating decision on appeal, the RO effectuated the Board's grant and assigned an effective date for the award of service connection for a seizure disorder as of June 10, 2003. This appeal ensued. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on a reopened claim will be, "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. Under the provisions of 38 C.F.R. § 3.156(c)(1), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Included are service records that are related to a claimed in-service event, injury, or disease, regardless of whether such record mentions the veteran by name, "as long as the other requirements of paragraph (c) of this section are met." Such records do not apply when VA could not have obtained the records because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Id. at (c)(2). An award made based all or in part on the records identified by paragraph (c)(1) is effective on the date entitlement arose or the date VA received the previously-denied claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously-denied claim. Id. at (c)(3). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the September 2011 decision, the Board found that the 2009 Board was in error in finding that the Veteran had submitted the September 1986 emergency room note during that appeal. Accordingly, the September 2011 Board decision concluded that the provisions of 38 C.F.R. § 3.156(c) were not implicated in the current appeal. The parties to the June 2012 Joint Motion, however, agreed that the Board was not free to ignore the finality of the fact finding rendered in the January 2009 Board decision. Accordingly, the parties concluded that the Board erred in finding that the provisions of 38 C.F.R. § 3.156(c) do not apply to the Veteran's claim, and on remand the Board is directed to apply those provisions. The Board acknowledges the January 2009 Board finding that a September 1986 service hospital record was submitted during that appeal. That record, which documented complaints of a tender scalp among other injuries after a motor vehicle accident in service, formed the basis of the January 2009 Board decision to reopen the previously denied claim and, in part, the decision to resolve reasonable doubt in the Veteran's favor and grant the claim. Reconsidering the claim pursuant to the provisions of 38 C.F.R. § 3.156(c), the Board finds that service connection for a seizure disorder is warranted, effective from April 7, 1989, the date the Veteran's original claim for service connection for a seizure disorder was received by VA. Existing post-service medical evidence from Walter Reed Army Medical Center reflects that the Veteran was admitted in August 1987 with a history of two episodes of sudden onset of severe headache followed by a generalized tonic clonic seizure within the previous six months. The first seizure reportedly occurred in March 1987 during sleep and was observed by the Veteran's roommate. An MRI scan revealed a left parietal lesion, which was thought to be consistent with an arterial venous malformation. The diagnosis included generalized seizure disorder, secondary to the malformation noted on MRI. The Veteran underwent a left parietal occipital craniotomy with resection of the arterial venous malformation. Subsequent private and VA treatment records document ongoing evaluation and treatment for a seizure disorder. The Board finds that entitlement to service connection for a seizure disorder arose within one year of separation from military service. The Board notes that where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and epilepsies become manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Epilepsy is a disorder characterized by seizures. See Dorland's Illustrated Medical Dictionary 640 (31st ed. 2007). However, an effective date earlier than April 7, 1989 is not warranted because the date VA received the previously-denied claim, April 7, 1989, is later than the date entitlement arose. See 38 C.F.R. § 3.156(c)(3). Moreover, an effective date following the date of separation from military service is not warranted because the evidence does not reflect, nor does the Veteran or her attorney contend, that the claim was received within one year after separation from service. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). ORDER Entitlement to an effective date earlier than June 10, 2003, for the award of service connection for a seizure disorder is allowed effective April 7, 1989, subject to the law and regulations governing the criteria for award of monetary benefits. ________________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs