Citation Nr: 1338409 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-20 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a seizure disorder. 2. Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January to February 2004 and from November 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which reopened the Veteran's previously denied claim of service connection for a seizure disorder and denied this claim on the merits. A videoconference Board hearing was held at the RO in June 2013 before the undersigned and a copy of the hearing transcript has been added to the record. The Board observes that, in a February 2008 rating decision, the RO essentially reopened the Veteran's previously denied claim of service connection for a seizure disorder and denied this claim on the merits. The Veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). The Veteran also did not submit any statements relevant to this claim within 1 year of the February 2008 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for a seizure disorder is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. In February 2008, the RO reopened and denied the claim of service connection for a seizure disorder and the Veteran did not appeal. 2. The record evidence received since February 2008 relates to an unestablished fact necessary to substantiate the claim of service connection for a seizure disorder because it suggests that the Veteran experiences current disability which could be related to active service. 3. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current seizure disorder that had its onset in service and continued after service. CONCLUSIONS OF LAW 1. The February 2008 rating decision, which reopened and denied the Veteran's claim of service connection for a seizure disorder, is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. Evidence received since the February 2008 RO decision in support of the claim of service connection for a seizure disorder is new and material; accordingly, this claim is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 3. Seizure disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence Claims The Veteran contends that new and material evidence has been received sufficient to reopen his previously denied claim of service connection for a seizure disorder. He specifically contends that the newly received evidence demonstrates that his current seizure disorder is related to active service, entitling him to reopen this claim. As noted in the Introduction, in February 2008, the RO reopened the Veteran's previously denied claim of service connection for a seizure disorder and denied this claim on the merits. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2013). The Veteran did not initiate an appeal of the February 2008 rating decision and it became final. The Veteran also did not submit any statements relevant to this claim within 1 year of the February 2008 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie, 24 Vet. App. at 251-52. The Veteran instead requested that this claim be reopened in April 2009. The claim of service connection for a seizure disorder may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). As also noted in the Introduction, the Veteran filed an application to reopen his previously denied service connection claim for a seizure disorder on a VA Form 21-4138 dated on April 24, 2009, and date-stamped as received by the RO on April 29, 2009. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a) (2013). As relevant to this appeal, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. Id. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen a claim of service connection for a seizure disorder, the evidence before VA at the time of the prior final RO decision in February 2008 consisted of copies of certain of the Veteran's service treatment records and private treatment records. The RO noted that the Veteran's claim was being reconsidered as it had been previously and finally denied in April 2007 because there was no diagnosis of a seizure disorder or evidence of any clinically significant seizure activity. The RO also noted that the Veteran had submitted duplicate copies of certain of his service treatment records in support of his request to reopen the previously denied claim. The RO noted further that the private treatment records submitted in support of the Veteran's request to reopen the previously denied claim showed no treatment for a seizure disorder, although a June 2007 outpatient treatment record showed a history of a seizure 3 years earlier or in approximately June 2004 when the Veteran was not on active service. The RO finally noted that no additional evidence of treatment for a seizure disorder had been submitted. Thus, the reopened claim was denied on the merits. The newly received evidence includes additional VA outpatient treatment records, duplicate copies of certain of the Veteran's service treatment records, additional private treatment records, the Veteran's Social Security Administration (SSA) records, a report of VA seizure disorders (epilepsy) Disability Benefits Questionnaire (DBQ) in June 2012, a report of VA seizure disorders (epilepsy) DBQ completed by W.S., D.O., in May 2013, and the Veteran's June 2013 Board hearing testimony. The Board notes that, following VA outpatient treatment in March 2009, the Veteran was diagnosed as having a seizure disorder. Following private outpatient treatment at an emergency room (ER) later in March 2009, the discharge diagnoses included an epileptic seizure. A review of the Veteran's SSA records indicates that SSA found the Veteran to be disabled in September 2009 due to a seizure disorder and posttraumatic stress disorder (PTSD). These records also consist largely of duplicate copies of the Veteran's VA outpatient treatment records and examination reports. On VA seizure disorders (epilepsy) DBQ in June 2012, the VA examiner stated that the Veteran did not have and had never been diagnosed as having a seizure disorder (epilepsy). This examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. She stated that the Veteran's service treatment records showed "multiple inconsistencies" in his neurology examination in August 2006 and a diagnosis at that time of conversion disorder "with 'the possibility of pseudoseizure/psychophysiologic embellishment very high.'" This examiner also stated that she could not find "documentation of seizure witnessed by a medical provider" in the Veteran's claims file. She stated further that treatment records from Dr. W.S. "state that [the Veteran] has seizures based on history provided by this Veteran. I did not locate neurologic medical evidence of seizures" in these private treatment records. She concluded that there was "insufficient medical evidence to confirm a current diagnosis of seizure disorder." Following this examination, the VA examiner opined that it was less likely than not that the Veteran's claimed seizure disorder was caused or aggravated by active service. The rationale for this opinion was that there was no diagnosis of epilepsy in the Veteran's service treatment records. She also stated: [The Veteran's] symptoms during active military service were more likely than not psychogenic. There is no objective medical evidence in the [claims] file to diagnose current epilepsy. Medical records in the [claims] file contain a diagnosis of seizures based on [the Veteran's] statements with no documentation of witnessed seizure activity. He has had sub-therapeutic treatment with no adverse consequences." This VA examiner concluded that the Veteran's claimed seizure disorder "do[es] not have a physiologic basis." On VA seizure disorders (epilepsy) DBQ in May 2013, Dr. W.S. stated that the Veteran's first seizures had occurred while he was on active service. He also stated that continuous medication was required for control of the Veteran's seizures. He stated further that a diagnosis of a seizure disorder had been confirmed and the Veteran had experienced a witnessed seizure, writing, "See Veteran's medical records." Dr. W.S. stated that he had reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran's seizures included generalized tonic-clonic convulsions, episodes of unconsciousness, brief interruption in consciousness or conscious control, episodes of sudden loss of postural control (akinetic type), episodes of complete or partial loss of use of one or more extremities, episodes of random motor movements, and loss of urine and feces during seizures. Dr. W.S. noted that the approximate date of the Veteran's first seizure activity was in November 2005 and he experienced 2 or more minor seizures in the previous 6 months (5-8 per week), a major seizure in February 2013 and at least 1 major seizure over the previous year, no minor psychomotor seizures, at least 1 major psychomotor seizure per month over the previous year, and no epilepsy associated with a non-psychotic organic brain syndrome or a psychotic disorder. Dr. W.S. also noted, "All of the Veteran's [history] of seizures are documented in his army records. He has copies of this." The diagnoses included tonic-clonic seizures or grand mal (generalized convulsive seizures). The Veteran testified at his June 2013 Board hearing that he first experienced seizures after suffering a fall during basic training. See Board hearing transcript dated June 21, 2013, at pp. 4-5. He also testified that he began treatment for repeated seizures soon after while on active service. Id., at pp. 5-6. He testified further that he currently experienced seizures "about twice a month. Id., at pp. 8-9. He finally testified that Dr. W.S. had told him that his seizures were related to his in-service fall during basic training. Id., at pp. 11. With respect to the Veteran's service connection claim for a seizure disorder, the Board notes that the evidence which was of record in February 2008 did not indicate that the Veteran experienced any current disability due to a seizure disorder which could be attributed to active service. The newly received evidence suggests the presence of a seizure disorder which could be attributable to active service. The Board observes in this regard that, in Shade v. Shinseki, 24 Vet. App 110 (2010), the Court held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. All of the newly received evidence is presumed credible for the limited purpose of reopening the previously denied claims. See Justus, 3 Vet. App. at 513. Thus, the Board finds that the evidence submitted since February 2008 is new, in that it has not been submitted previously to agency adjudicators, and is material, in that it relates to an unestablished fact necessary to substantiate the claim of service connection for a seizure disorder and raises a reasonable possibility of substantiating it. Because new and material evidence has been received, the Board finds that the previously denied claim of service connection for a seizure disorder is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2013). Regulations also provide that 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) (2013). There is favorable and unfavorable medical opinion evidence on the issue of whether the Veteran in fact has a seizure disorder that had its onset during service. As noted above, following VA seizure disorders (epilepsy) DBQ in June 2012, the VA examiner stated that the Veteran did not have and had never been diagnosed as having a seizure disorder (epilepsy). The June 2012 VA examiner concluded that there was "insufficient medical evidence to confirm a current diagnosis of seizure disorder" and it was less likely than not that the Veteran's claimed seizure disorder was related to active service because his service treatment records contained no diagnosis of epilepsy. The Board notes that a review of the Veteran's service treatment records show that they contain a diagnosis of "grand mal seizures" following outpatient treatment in March 2006 when he complained of panic attacks twice a week. He was prescribed Dilantin and post-service private treatment records continue to show that the Veteran takes Dilantin to control his seizures. In contrast to the VA examiner, following VA seizure disorders (epilepsy) DBQ in May 2013, Dr. W.S. diagnosed the Veteran as having tonic-clonic seizures or grand mal generalized convulsive seizures. Dr. W.S. concluded that there was evidence of a seizure disorder in the Veteran's service treatment records. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current seizure disorder that had its onset in service and continued after service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence has been received, the previously denied claim of service connection for a seizure disorder is reopened. Service connection for a seizure disorder is granted. ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs