Citation Nr: 1546678 Decision Date: 11/04/15 Archive Date: 11/10/15 DOCKET NO. 14-27 815A ) 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 submitted to reopen a previously denied claim for entitlement to service connection for a bilateral foot disorder. 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for bipolar disorder, to include as secondary to service-connected history of seizure disorder. 3. Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected history of seizure disorder. 4. Entitlement to an initial evaluation for history of seizure disorder in excess of 10 percent before August 26, 2014 and in excess of 20 percent on and after August 26, 2014. 5. Entitlement to an effective date earlier than December 20, 2011 for the grant of service connection for history of seizure disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Air Force from August 1982 to February 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The August 2011 rating decision also declined to reopen the previously denied claim of entitlement to service connection for history of seizure disorder. The Veteran filed a timely notice of disagreement for this issue in August 2011. The RO subsequently issued a rating decision in July 2014 that granted service connection for history of seizure disorder. As discussed below, the Veteran filed a timely September 2014 notice of disagreement for both the initial rating and effective date assigned for the grant of service connection for history of seizure disorder. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to an initial evaluation for history of seizure disorder in excess of 10 percent before August 26, 2014 and in excess of 20 percent on and after August 26, 2014, entitlement to an effective date earlier than December 20, 2011 for the grant of service connection for history seizure disorder, and entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected history of seizure disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a May 1990 rating decision, the RO denied the Veteran's claim of service connection for a bilateral foot disorder. The Veteran was informed of that decision and his appellate rights, but he did not appeal or submit new and material evidence within one year. 2. In a February 2003 rating decision, the RO declined to reopen the Veteran's previously denied claim of entitlement to service connection for a bilateral foot disorder. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. 3. The evidence received since the February 2003 rating decision is cumulative and redundant of the evidence of record at that time, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral foot disorder. 4. In a February 2003 rating decision, the RO denied service connection for a bipolar disorder, to include as secondary to history of seizure disorder. The Veteran did not perfect an appeal within the applicable time period nor was new and material evidence received within one year of the issuance of that decision. 5. Since the February 2003 rating decision, official service department records related to the psychiatric disorder were associated with the claims file. CONCLUSIONS OF LAW 1. The February 2003 rating decision that denied the Veteran's claim of entitlement to service connection for a bilateral foot disorder is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2015). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a bilateral foot disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The issue of entitlement to service connection for a bipolar disorder, to include as secondary to service-connected history of seizure disorder, is reconsidered. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a), (c) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The notice requirements were met in this case by a February 2011 letter. This letter notified the Veteran of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of the evidence he should provide, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Furthermore, the requisite notice was provided prior to the initial adjudication of the claim in August 2011. The letter also described what the evidence must show to constitute new and material evidence. Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). Accordingly, the duty to notify has been satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159(c), (d). In this case, VA fulfilled its duty to assist the Veteran by obtaining the Veteran's service treatment records, and all relevant, identified, and available post-service treatment records. In addition, the Veteran was provided with a VA examination for his claimed psychiatric disorder in June 2013. The Board acknowledges that the Veteran was not provided with a VA examination in conjunction with his claim to reopen his previously denied claim for entitlement to service connection for a bilateral foot disorder; however, an examination is not warranted as the claim is not reopened herein. See 38 C.F.R. § 3.159(c)(4)(iii). Accordingly, VA is not required to provide the Veteran with a VA examination in conjunction with his claim to reopen entitlement to service connection for a bilateral foot disorder. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied, and thus, appellate review may proceed without prejudice to the Veteran. II. Law and Analysis Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade, 24 Vet. App. at 117. 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. Shade, 24 Vet. App. at 117. Notwithstanding the foregoing, 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. 38 C.F.R. § 3.156(c)(1) (2015). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provided sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Every veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that an injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. The law provides that an increase in disability must consist of worsening of the enduring disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). Bipolar Disorder The RO denied the Veteran's claim for service connection for entitlement to bipolar disorder, to include as secondary to seizure disorder, in a February 2003 rating decision, finding that the Veteran was not service-connected for seizure disorder and there was no evidence to show that the Veteran's bipolar disorder was incurred in or aggravated by active service. The Veteran was notified of the decision and his appellate rights in a February 2003 letter. The Veteran did not appeal this decision. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2015). In this case, however, it appears that additional service personnel records were received after the February 2003 rating decision. A December 2011 statement from the Veteran indicates he was submitting two personnel records. As scanned in to VBMS, the service personnel records in question do not contain a date stamp indicating date of receipt. Furthermore, none of the rating decisions in the file indicated a review of service personnel records. The personnel records in question include a January 1984 letter of reprimand, a September 1987 record that summarized this letter, and a January 1984 letter from Dr. L. The Board notes that the January 1984 letter from Dr. L is included within a group of documents that was date stamped as received by the RO in July 1984. However, the January 1984 letter of reprimand is not found within this group of documents or any other group of documents that was marked as received by the RO before VA first decided the Veteran's claim. Thus the Board is unable to discern at what point the January 1984 letter of reprimand was associated with the claims file. Accordingly, and as required by law, the Board must give all reasonable doubt to the Veteran and find that this record was submitted after the 2003 rating decision. The January 1984 letter of reprimand stated that the Veteran had engaged in misconduct by verbally threatening and assaulting another service member in November and December of 1983. The Board notes that in the January 1984 letter from Dr. L. that was previously of record, Dr. L. noted that the Veteran was experiencing behavioral problems on the job and opined that his behavioral changes could have resulted from the toxicity of his seizure medication. Thus, this official service department record relates to the in-service behavioral problems that were noted in the previous evidence of record. As this letter is relevant to the Veteran's claim, the Board will reconsider the issue of entitlement to service connection for a bipolar disorder, to include as secondary to service-connected history of seizure disorder, without the requirement of submission of new and material evidence to reopen the claims. See 38 C.F.R. § 3.156(c). The Board has also recharacterized the issue on appeal to encompass all diagnosed psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Bilateral Foot Disorder The RO denied the Veteran's claim for service connection for entitlement to a bilateral foot disorder in a May 1990 rating decision, finding that the Veteran's pes planus preexisted service and there was no evidence that the bilateral foot disorder had been aggravated during service. The Veteran was notified of the decision and his appellate rights in a June 1990 letter. The Veteran did not appeal this decision. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2015). In February 2002, the Veteran sought to reopen the previously denied claim for service connection. The RO declined to reopen the claim in a February 2003 rating decision. The Veteran was notified of this decision and his appellate rights in a February 2003 letter. However, the rating decision is final as the Veteran did appeal the decision and new and material evidence was not received during the one year period following the decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2015). The Board notes that in January 2011, the Veteran submitted a service connection claim for plantar fasciitis. However, the record does not reflect a current diagnosis for plantar fasciitis and the Veteran has not provided any information to indicate that the symptoms or factual basis for this disorder are distinguishable from the ones that were attributed to the previously claimed pes planus. Thus, the Veteran's current claim for entitlement to service connection for a plantar fasciitis is apparently based upon the same factual basis as his original claim of entitlement to service connection for pes planus. As such, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). At the time of the February 2003 rating decision, the relevant evidence under consideration consisted of the Veteran's statements, service treatment records (STRs), VA treatment records dated from October 1984 to December 1988, and treatment records from the Social Security Administration dated from December 1996 to October 2001. A review of the Veteran's STRs reveals an October 1981 bilateral foot x-ray report that documented the presence of grade I pes planus bilaterally. The October 1981 enlistment examination also marked the Veteran's feet as abnormal upon clinical evaluation and noted his pes planus. His pes planus was again noted in his September 1983 service examination, but his feet were marked as normal during his December 1983 separation examination. The Veteran denied having any foot trouble in his Reports of Medical History dated in October 1981, September 1983, and December 1983. However, following his discharge from service, the Veteran was diagnosed with flat and pronated feet during his October 1984 VA examination. In addition, a December 2001 record from Main Evaluations, Inc. noted that the Veteran's report that he had experienced pain related to his flat feet since 1983. As discussed above, additional personnel records were received after the February 2003 rating decision. However, these personnel records deal with disciplinary action for behavioral problems and reference a doctor's assessment regarding the Veteran's seizure disorder. Thus, these records do not relate to the Veteran's bilateral foot disorder claim. As a result, the Board finds that the provisions of 38 C.F.R. § 3.156(c) do not apply to the facts of the Veteran's claim and this issue should not be reconsidered on this basis. The relevant evidence submitted after the December 1983 rating decision includes the Veteran's statements and a March 2011 statement from the Veteran's sister. In his July 2014 VA substantive appeal, the Veteran stated that his bilateral foot disorder began during active duty. In her March 2011 statement, the Veteran's sister asserted that the Veteran suffered from feet problems upon his return. However, the Board notes that the Veteran previously reported that he had experienced pain related to his flat feet during service and since 1983. As such, the statements from the Veteran and his sister are cumulative and redundant of the evidence that was already of record. Thus, while this record is new, it is not material. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim of entitlement to service connection for a bilateral foot disorder. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER The claim for entitlement to a psychiatric disorder, to include as secondary to service-connected seizure disorder, is reconsidered. New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for a bilateral foot disorder is denied. REMAND The Board finds that a remand is necessary for the issuance of a statement of the case that addresses the issues of entitlement to an initial evaluation for history of seizure disorder in excess of 10 percent before August 26, 2014 and in excess of 20 percent on or after August 26, 2014; and entitlement to an effective date earlier than December 20, 2011 for the grant of service connection for history seizure disorder. Where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded to the originating agency to issue a statement of the case and to provide the claimant an opportunity to perfect the appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). The RO granted service connection for the Veteran's seizure disorder in a July 2014 rating decision and assigned a 10 percent disability rating effective from December 20, 2011. The Veteran filed a timely September 2014 notice of disagreement with both the initial rating and the effective date. In a subsequent November 2014 rating decision, the RO increased the disability rating to 20 percent effective from August 26, 2014. However, the Veteran has not expressed satisfaction with the new rating. Thus, the November 2014 rating decision resulted in a staged rating and both periods remain on appeal as an increased rating claim. AB v. Brown, 6 Vet. App. 35 (1993). As the RO has not provided a statement of the case in response to the Veteran's September 2014 notice of disagreement, a remand is required. A remand is also required to obtain an adequate opinion that addresses the aggravation prong of the Veteran's secondary service connection claim for a psychiatric disorder. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The Board must consider all theories of entitlement if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). The Veteran was provided with a VA examination to evaluate his claimed psychiatric disorder in June 2013. The VA examiner diagnosed bipolar disorder, cocaine dependence, and alcohol dependence. He then opined that it was less likely than not that the Veteran's bipolar disorder was caused by or the result on an in-service illness. However, the examiner's opinion did not discuss whether the Veteran's bipolar disorder was aggravated by his service-connected history of seizure disorder. In addition, the Veteran also reported in his July 2014 VA Form 9 that his psychiatric disorder began during active service. Thus, the opinion must also address the theory of direct service connection. Consequently, the Board finds that a remand is necessary to obtain an addendum opinion. Finally, any outstanding VA treatment records should be obtained in light of the remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all relevant records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Issue a statement of the case addressing the issues of entitlement to an initial evaluation for history of seizure disorder in excess of 10 percent before August 26, 2014 and in excess of 20 percent on or after August 26, 2014; and entitlement to an effective date earlier than December 20, 2011 for the grant of service connection for history of seizure disorder. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. 4. After the preceding development is completed, return the claims file to the examiner that provided the June 2013 VA medical opinion. If that examiner is unavailable, send the claims file to a similarly qualified examiner. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide an opinion as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bipolar disorder had its onset in, or was caused by active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bipolar disorder was caused by his service-connected history of seizure disorder. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected history of seizure disorder aggravated the Veteran's bipolar disorder. In rendering all opinions, the examiner must address the following: 1) the January 1984 service treatment record in which Dr. L. reported that the Veteran experienced behavioral changes after taking Dilantin and that these changes could be due to the toxicity of the seizure medication; 2) the December 1983 Report of Medical History in which the Veteran claimed to have depression or excessive worry in addition to frequent trouble sleeping; 3) the physician's statement from the December 1983 Report of Medical History that the Veteran had experienced frequent trouble sleeping since he began taking Dilantin and suffered from depression and excessive worry due to family problems; 4) the Veteran's report from the November 1984 VA examination that he felt irritable and edgy after taking seizure medication, and that someone told him these feelings were due to the medication; 5) the Veteran's statement from his July 2014 substantive appeal that his psychiatric disorder started during active service; 6) the statements from the Veteran's family members dated in March 2011 reporting that the Veteran engaged in drug use during service and experienced psychiatric problems after returning from service; and 7) the December 2001 treatment record from Main Evaluations, Inc. that noted the Veteran's report that he had suffered from a seizure disorder since 1983 and a bipolar disorder since 2000. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs