Citation Nr: 1525037 Decision Date: 06/11/15 Archive Date: 06/19/15 DOCKET NO. 13-21 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a seizure disorder to include as due to brain tumor. 2. Entitlement to service connection for dementia to include as due to brain tumor. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service from May1982 to August 1982, from June 1983 to August 1983, and from April 1985 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Acting Veterans Law Judge at a Board hearing in Washington, D.C. in April 2014. A transcript is of record. The appeal of the reopened claim of entitlement to service connection for a seizure disorder due to brain tumor, and the claim for service connection for dementia to include as due to brain tumor, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a June 2005 rating decision, the RO denied service connection for a grand mal seizure disorder. The Veteran did not appeal the rating decision. 2. Evidence received since the June 2005 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a seizure disorder, and raises a reasonable possibility of substantiating the underlying claim. CONCLUSIONS OF LAW 1. The June 2005 rating decision, which denied the Veteran's claim of service connection for a grand mal seizure disorder, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. New and material evidence sufficient to reopen the previously denied claim of service connection for a seizure disorder has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Because the Board is reopening the claim, it is considered a full grant of the benefit sought and no discussion of VA's duties to notify and assist is necessary. II. Petition to Reopen Claim of Entitlement to Service Connection The Veteran originally filed a claim of service connection for a disorder of "seizure (mixed headaches and tumor)" in February 2005. In a June 2005 rating decision, the RO denied the claim on the basis that the service treatment records were negative for any neurological disorders; that cited treatment reports show that the Veteran was diagnosed with a grand mal seizure disorder in January 2005; and that there was no evidence showing any relationship between this condition and the Veteran's active service. The Veteran filed a timely notice of disagreement as to the June 2005 rating decision; however, he did not submit a substantive appeal, VA Form 9, to perfect an appeal. He also did not submit relevant evidence within one year of the rating decision. Therefore, the June 2005 decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The evidence of record at the time of the June 2005 rating decision consisted of service treatment and personnel records, and post-service medical records and reports dated prior to June 2005. In September 2010, the Veteran submitted a claim, essentially requesting to reopen his claim of service connection for a seizure disorder. Since the June 2005 rating decision, evidence has been added to the claims file. The additional evidence of record includes service treatment records and service personnel records; VA and private treatment records dated since June 2005; and lay statements including from the Veteran and his spouse; and the transcript of a hearing in April 2014 when the Veteran testified before the undersigned Acting Veterans Law Judge. The evidence added since June 2005 also includes published material pertaining to brain tumors, including discussion of risk factors, rate of growth, and resulting complications including seizures. Noted risk factors included exposure to radiation at work or to power lines (electromagnetic field). One of the published articles noted that tumors may not cause symptoms until they have grown to be very large, and other tumors have symptoms that develop slowly. The articles indicated that symptoms included changes in mental function, headaches, seizures, and weakness in one part of the body. The Veteran also provided published material pertaining to the EA-6B Prowler, the type of aircraft in which he flew during service for many hours, according to service personnel records. The published material discussed the primary mission of the EA-6B in suppression of enemy air defenses by interrupting enemy electronic activity by using onboard electronic countermeasure systems including for jamming radar. At the April 2014 hearing the Veteran testified that he was exposed to various types of radiation due to his role flying on the EA-6B and being onboard the U.S.S. Enterprise, a nuclear-powered aircraft carrier. He testified that exposures to (electromagnetic/non-ionizing) radiation included from radar, microwave, and radio waves generated by systems onboard the EA-6B involved in the electronic warfare signal jamming; and that he was possibly exposed to radiation from the ship's nuclear power plant. Some of the service treatment records submitted since June 2005 were not on file as of June 2005. Some of these records pertain to treatment the Veteran received at Keesler Air Force Base Medical Center in July 1990 after he was admitted for treatment of an acute onset of right anterior pleuritic chest pain, to rule out a pulmonary embolus. These records contain a discussion of the problem, noting there was bloody pleural effusion of unknown etiology. At the April 2014 hearing the Veteran testified that at the time of his 1990 treatment, had started having symptoms of dizziness and throbbing headaches, which he still has, and which he associated with his seizures and other symptoms of his brain tumor. He also testified that he has had sinus trouble and the headaches since 1982 or 1983. The Veteran testified essentially that his brain tumor was related to service and began in service, and was the cause of his claimed dementia and epilepsy (seizures); and that the symptoms he noticed in service involving memory loss, sinus trouble, and headaches, were early manifestations of the brain tumor that caused his seizure disorder. The additional records received since June 2005 includes evidence which was not previously on file that is not cumulative or redundant of the prior evidence on file, and which raises a reasonable possibility of substantiating the claim. In light of the newly submitted records and contentions, when considered with previous evidence of record, the claim must be reopened. ORDER As new and material evidence has been presented, the claim of entitlement to service connection for a seizure disorder due to brain tumor is reopened, and to this extent only the appeal is granted. REMAND The Veteran is seeking service connection for seizure disorder and for dementia, both to include as due to a brain tumor that began during service or is otherwise related to service. The Veteran's VA treatment records show that the Veteran was seen in January 2005 for an apparent new onset seizure three days before, which occurred while the Veteran was sleeping, and was manifested by foaming at the mouth, urinating on himself, and altered mental status and grogginess. After examination the assessment was apparent new onset of seizure with abnormal CAT scan. The Veteran's VA treatment records in October 2008 include an impression of seizures-grand mal; and tumor, 2.5 cm by 1.5 cm on his left frontal lobe, presumed benign, has not been growing. The Veteran has testified essentially that his brain tumor was related to service. He has indicated that he perform regular duties on the EA-6B, an aircraft that emits radar, microwave, and other radio waves generated by systems onboard involved in electronic warfare signal jamming, and that he was thereby exposed to electromagnetic radiation that was the cause of a brain tumor, which in turn caused his claimed dementia and seizures. He testified that he first noticed symptoms in service involving memory loss, sinus trouble, and headaches, which he believes were early manifestations of the brain tumor that caused his seizure disorder. The Court has taken judicial notice that radar equipment emits micro-wave type, non-ionizing radiation. See Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984). The Veteran's claims of service connection for dementia to include as due to brain tumor, is inextricably intertwined with the claim for service connection for a seizure disorder due to brain tumor. Both are claims for neurological pathologies potentially related to the same etiology and claimed as related to service. To some extent, the Veteran is competent to describe cognitive function changes that he associates with his claimed dementia. An examination with opinion is necessary to clarify the nature of any claimed dementia or other cognitive disorder and any seizure disorder, and with respect to the question of whether the etiology of the Veteran's seizure disorder or any dementia/cognitive disorder is related to service. Accordingly, the case is REMANDED for the following action: 1. Take appropriate measures to obtain copies of any outstanding records of VA or private medical treatment pertinent to the Veteran's neurological seizure or cognitive symptomatology. In this regard the RO should ask the Veteran for names and addresses of any private medical provider and for locations of VA medical facilities where he received treatment. 2. Advise the Veteran that he or others who have first-hand knowledge or were contemporaneously informed, may submit lay statements describing their impressions regarding the onset and chronicity of any seizure or cognitive/dementia disorder. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for VA examination by a neurologist to determine the nature, onset, and likely etiology of any seizure disorder or cognitive disorder claimed as dementia. The claims file and a copy of this decision should be made available to the examiner, who should review both in conjunction with this examination. All indicated examination and diagnostic testing should be conducted, to include if necessary, magnetic resonance imaging (MRI) scans or computed tomography (CT) scans of the Veteran's brain tumor, and testing for assessment of cognition/dementia. After review of the evidence on file, and examining the Veteran, the examiner should identify any seizure disorder or cognitive disorder, to include dementia, present. For any such disorder identified, the examiner should provide an opinion addressing whether it is as likely as not (a probability of 50 percent or greater) that any present seizure disorder or cognitive disorder to include dementia: (a) had its onset in service; or (b) was caused by or aggravated by an injury or disease in service; including by electromagnetic radiation (such as radar, microwave, radio wave) associated with radar equipment onboard the EA-6B aircraft on which the Veteran regularly performed duties; or (c) was caused by or aggravated by any brain tumor, if that tumor had its onset in service or was caused by or aggravated by service, including by any electromagnetic radiation (such as radar, microwave, radio wave) associated with radar equipment onboard the EA-6B aircraft on which the Veteran regularly performed duties; or (d) for an organic disease of the nervous system or associated brain tumor, was manifested within one year of discharge from service. The examiner must comment on whether any symptoms shown in service treatment or other service records were at least as likely as not manifestations of any later diagnosed seizure disorder, dementia or other cognitive disorder, or brain tumor. If the examiner finds that any seizure disorder or dementia or other cognitive disorder diagnosed is related to service, then opine as to the impact of such disorder on the Veteran's ability to work. The examiner should set forth a complete rationale for all findings and conclusions in the examination report. 4. Then readjudicate the appeal as to the service connection claims. If a benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs