Citation Nr: 1339931	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  11-27 187	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a seizure disability.  

2.  Entitlement to service connection for a seizure disability.  


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

Kimberly A. Mitchell, Associate Counsel




INTRODUCTION

The Veteran had active military service from June 1964 to June 1967.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  

In response to the Veteran's request for a hearing before the Board, the RO scheduled him for a hearing on May 2, 2013.  However, the Veteran did not appear for the scheduled hearing, nor did he provide any reason for his failure to attend or request that the hearing be rescheduled.  The notice letter regarding the hearing has not been returned as undeliverable.  Accordingly, the request for a hearing is considered withdrawn.  38 C.F.R. § 20.704(d) (2013).  

The issue of entitlement to service connection for a seizure disability is REMANDED to the RO via the Appeals Management Center, in Washington, D.C.  


FINDING OF FACT

Evidence received since the February 2009 rating decision denial of service connection for a seizure disability constitutes new and material evidence.  


CONCLUSION OF LAW

New and material evidence sufficient to reopen a previously denied claim of service connection for a seizure disorder has been received.  38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).  




REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to notify and assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in letters dated January 2009 and August 2010.  

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim).  

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent September 2011 statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).  

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained an examination and medical opinion.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

New and Material Evidence

The Veteran initially submitted a claim of entitlement to service connection for a seizure disability in December 2008.  In a February 2009 rating decision, the RO denied the claim of service connection for a seizure disability on the basis that there was no existing disability.  The Veteran did not timely appeal the February 2009 rating decision, and no new evidence was received within one year, therefore that decision became final.  38 C.F.R. § 20.1103 (2013).  The Veteran submitted a request to reopen his claim of entitlement to service connection for a seizure disability in July 2010.  Service connection for a seizure disorder may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).  

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no new and material evidence has been offered, that is where the analysis must end.  Butler v. Brown, 9 Vet. App. 167 (1996).  

Evidence is considered new if it was not of record at the time of the last final disallowance of the claim.  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.  Finally, 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) (2013).  

In determining whether evidence is new and material, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  New and material evidence is not required as to each previously unproven element of a claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  

The Veteran submitted a claim to reopen his claim for service connection for a seizure disability in July 2010.  Evidence received since the final prior denial consists of additional VA treatment records dated from December 2008 to October 2010, an article on the effects of head injuries and seizures regarding Vietnam Veterans, and a statement from the Veteran.  The VA treatment records are new in that they were not of record at the time of the previous denial.  They are material in that they indicate that the Veteran's medication for treatment of seizures was increased and thereby raise the question of whether the Veteran's head injury in service is connected to his current seizure disability.  They also suggest the presence of a current seizure disability, which was not established at the time of the prior final denial.  In summary, the evidence submitted since the last final denial raises a reasonable possibility of substantiating the claim.  Therefore, the new evidence is material and the claim is reopened.

ORDER

New and material evidence has been submitted to reopen the claim of entitlement to service connection for a seizure disability.  To that extent only, the claim is allowed.


REMAND

In the February 2009 rating decision, the RO denied a claim of service connection for a seizure disability on the basis of no existing disability.  During the appeal period the RO received VA treatment records from Providence VAMC from December 2008 to October 2010.  There is a May 2010 neurology note in which the clinician states the Veteran was being seen for a follow-up regarding spells.  The clinician notes the Veteran was last seen on January 25, 2010, and at that time the assessment was spells that were likely partial seizures, restart of the Veteran's seizure medication, and also noted was "EEG w/L. temporal sharp waves."  Because the evidence shows a current disability and evidence suggesting a relationship to service, the Board concludes that a remand for an examination is necessary to determine whether any current seizure disability is related to service.  38 C.F.R. § 3.159(c)(4) (2013).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any relevant records of VA treatment of the Veteran since October 2010 and associate those records with the claims file.  

2.  Schedule the Veteran for an examination to determine the nature of the seizure disorder and whether it is related to his active service.  The examiner must review the Veteran's claims file and note that review in the report of examination.  The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any seizure disorder present at any time since December 2008 had onset during service, or was caused by any in-service injury of the head.  The examiner should provide a complete rationale for any medical opinion rendered.  

3.  Then, readjudicate the claim.  If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  

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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).  



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs