Citation Nr: 1547310 Decision Date: 11/09/15 Archive Date: 11/13/15 DOCKET NO. 14-14 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a cervical spine disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a seizure disorder. 3. Entitlement to service connection for depression, to include as secondary to a seizure disorder. REPRESENTATION Appellant represented by: John Worman, Attorney ATTORNEY FOR THE BOARD S. Stanley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1978 to August 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2012 and April 2013 rating decisions by the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, additional evidence was received with a waiver of RO consideration. The issues of service connection for memory loss and headaches have been raised by the record in a December 1993 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 CFR 19.9(b)(2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20 (2015)) FINDINGS OF FACT 1. A January 2009 rating decision denied the Veteran's petition to reopen a claim of service connection for a cervical spine disability which had been previously denied on the basis that such disability was not shown to be related to service. 2. Evidence received since the January 2009 rating decision does not tend to show that the Veteran has a cervical spine disability which may be related to service; does not relate to the unestablished fact necessary to substantiate the claim of service connection for a cervical spine disability; and does not raise a reasonable possibility of substantiating such claim. 3. An October 1995 Board decision denied the Veteran's petition to reopen a claim of service connection for a seizure disorder which had been previously denied on the basis that such disability pre-existed, and was not aggravated by, his service. 4. Evidence received since the October 1995 Board decision tends to show that the Veteran's seizure disorder did not pre-exist service; relates to an unestablished fact necessary to substantiate the claim of service connection for a seizure disorder; and raises a reasonable possibility of substantiating such claim. 5. The Veteran's seizure disorder is reasonably shown to have begun in service and to have persisted since. 6. The Veteran's depression was caused or aggravated by his service-connected seizure disorder. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for a cervical spine disability may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 2. New and material evidence has been received, and the claim of service connection for a seizure disability may be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156 (2015). 3. Service connection for a seizure disability is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 4. Service connection for depression as secondary to a seizure disability is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. Regarding a the issues of a seizure disorder and depression, inasmuch as this decision grants the benefits sought, there is no reason to belabor the impact of the VCAA on these matters, since any notice or duty to assist omission is harmless. In a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Kent v. Nicholson, 20 Vet. App. 1 (2006). June 2012 and July 2012 letters provided the Veteran notice in accordance with Kent, and explained the evidence VA was responsible for providing and the evidence he was responsible for providing. He has had ample opportunity to respond/supplement the record and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs), pertinent post-service treatment records, and records from the Social Security Administration (SSA) are associated with the claims file. Notably, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach unless/until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). The Veteran has not identified any evidence pertinent to the decisions being made that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis New and Material Evidence Generally, an unappealed rating decision on a claim is final based on the evidence of record when it was made, and the claim may not thereafter be reopened or allowed except as otherwise provided by law. 38 U.S.C.A. § 7105. Decisions by the Board are final. 38 U.S.C.A. § 7104. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "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. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that whether new and material evidence raises a reasonable possibility of substantiating the claim is a low threshold requirement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Cervical Spine A January 2009 rating decision declined to reopen the claim of service connection for a cervical spine disability which was previously denied on the basis that there was no evidence that the Veteran's cervical spine disability was incurred in or otherwise related to service. The Veteran was notified of the decision and of his right to appeal it, but did not do so, or submit new and material evidence in the year following. Therefore, that decision is final based on the evidence then of record. 38 U.S.C.A. § 7105. . The evidence of record at the time of the January 2009 rating decision included the Veteran's STRs which show that he sought treatment after "falling to his knees," VA treatment records showing a diagnosis of diffuse cervical spondylosis, an August 2003 VA physician's statement in favor of the claim, an October 2006 VA cervical spine examination, the Veteran's March 2008 Board hearing testimony, and the May 2008 Board decision denying the Veteran's petition to reopen the claim. Evidence receive since the January 2009 rating decision includes updated VA treatment records showing ongoing treatment for a cervical spine disability and records received from the SSA consisting of private treatment records showing treatment for a cervical spine disability as well as a January 1997 statement from a private provider stating that the provider was unable to make any comments as to whether the Veteran's cervical spine disability is related to service and/or date the disability back 15 to 20 years earlier. While the VA treatment and SSA records added to the record since the January 2009 rating decision are new evidence in the sense that they were not considered in that decision, they are not material evidence. They do not show or suggest that any current chronic cervical spine disability was incurred in or caused by service; records showing that the Veteran has received diagnoses of, and treatment for, his cervical spine disability does not tend to show that such may be related to service. In addition, the January 1997 statement indicates that a private provider was able to date the disability back to service or find that such was otherwise related to service. Therefore, they do not relate to the unestablished fact necessary to substantiate the claim; do not raise a reasonable possibility of substantiating the claim; and are not material. In summary, no additional evidence received since the January 2009 rating decision is new evidence that tends to prove that the Veteran's cervical spine disability is related to the Veteran's service. Therefore, the additional evidence received since January 2009 does not address the unestablished fact necessary to substantiate the claim of service connection for a cervical spine disability; does not raise a reasonable possibility of substantiating such claim; and is not new and material. Accordingly, the claim may not be reopened. Seizure Disorder A final October 1978 rating decision had denied service connection for a seizure disorder based essentially on a finding such disability pre-existed, and was not aggravated in, service. An October 1995 Board decision declined to reopen a claim of service connection for a seizure disability. The October 1995 Board decision is final. See 38 U.S.C.A. § 7104. The evidence of record at the time of the October 1995 Board decision included the Veteran's STRs showing he was treated in service for a seizure disability, VA and private treatment records showing ongoing treatment for a seizure disorder, and Decision Review Officer hearing testimony. Evidence received since the October 1995 Board decision includes VA and SSA records showing ongoing treatment a seizure disorder and a June 2013 statement by Dr. H. S., M.D., which states that the Veteran's seizure disorder should either be considered to not have pre-existed service or considered to have been aggravated in service. Because the Veteran's claim was denied in the October 1978 rating decision (and confirmed in the October 1995 Board decision) based on a finding that his seizure disability pre-existed, and was not aggravated by, his service, for evidence to be new and material in the matter it must either: (1) Show/tend to show that a seizure disorder did not pre-exist service or, (2) show/tend to show that such disability was indeed aggravated by service. The June 2013 statement by Dr. H.S. is essentially to the effect that a seizure disorder either did not pre-exist service (as it should have been considered to be in full remission) or that it was aggravated by service (as it was asymptomatic when he entered service, but became symptomatic upon entry). This evidence is new (as it was not previously in the record) and material (as it addresses an unestablished fact necessary to substantiate the claim of service connection for a seizure disability), particularly in light of the low threshold standard for reopening endorsed by the Court in Shade. See Shade, 24 Vet. App. at 117-18. As new and material has been received, the claim of service connection for a seizure disability must be reopened. De novo review of the claim is discussed below. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; 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, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). Seizure Disorder VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137. The Court has indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. See Crowe v. Brown, 7 Vet. App. 238 (1994). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2014). If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id.; 38 C.F.R. § 3.322 (2015). A seizure or neurologic disorder was not noted on the Veteran's March 1978 entrance examination. The Veteran reported no history of having or having had dizziness or fainting spells or epilepsy or fits, and clinical evaluation was normal. Consequently, the presumption of soundness attached, and the analysis proceeds to the question of whether that presumption was rebutted. The government must show by clear and unmistakable evidence that the Veteran's seizure disorder was both pre-existing and not aggravated by service. The record contains somewhat conflicting evidence regarding whether a seizure disorder pre-existed service. The evidence of pre-existence consists of the Veteran's statements that he had a history of seizures until age 12, but, as noted in the June 2013 statement by Dr. H.S. there is no clinical evidence of a pre-existing seizure disability and the only evidence of pre-existence is the Veteran's lay accounts from when he was a child. Dr. H.S. notes that he "question[s] the validity of this" and the Veteran did not report a history of seizures at the time of entry. Additionally, Dr. H.S. opined that any earlier seizure disorder should be considered to have been in full remission and thus, considered not to have pre-existed service. Consequently, after review of the record, the Board finds that there is no undebatable evidence of a pre-existing disability and the record does not contain clear and unmistakable evidence that a seizure disorder preexisted service. Therefore, as an initial matter, the presumption of soundness is not rebutted, and service connection on the basis that any seizure disability was aggravated by service is not warranted. What remains for consideration is whether such disabilities were instead incurred in or otherwise related to service directly. The competent medical evidence of record clearly documents that the Veteran was diagnosed with a seizure disability in service and that he has continued to be treated for seizures after his service discharge. Dr. H.S., after describing the Veteran's medical history; noting the service treatment records had been reviewed and referring to them in his report; and describing specific medical research with respect to the recurrence, remission, and relapse of seizures, stated "it is my opinion that [the Veteran's] seizure disorder began in the Army and did not preexist military service." He opined that "the [seizure] episode that occurred in the Army" was "essentially a new occurrence." Dr. H.S. also noted that the Veteran had consistently taken medication for seizures since his time in service. Given the medical and lay evidence outlined above, the Board concludes that the evidence is at least in equipoise that the Veteran's seizure disorder began in service and has persisted since, and service connection for a seizure disorder is warranted. Depression The Veteran contends that depression is either caused or aggravated by his now service-connected seizure disorder. Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To substantiate a secondary service connection claim, the Veteran must show: (1) a present disability (for which service connection is sought); (2) a service-connected disability; and (3) competent evidence that the service connected disability caused or aggravated the disability for which service connection is sought. First, the Board notes that the postservice medical evidence clearly shows that the Veteran has current psychiatric diagnosis of major depressive disorder. Furthermore, as noted above, the Board has granted service connection for his seizure disability. Thus, what remains for consideration is whether the Veteran's depression is caused or aggravated by his seizure disability. Whether such a relationship exists is a medical question beyond the scope of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). A July 2013 VA Disability Benefits Questionnaire completed by Dr. A. F., PhD, notes that he reviewed the Veteran's VA treatment records and claims file and conducted a mental status evaluation in July 2013. The examination report notes that the Veteran has a history of mental health treatment following service and that he continues to take psychiatric medication through the VA. Dr. A. F. noted the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, impaired judgment, and disturbances in motivation and mood. Dr. A. F. notes that the Veteran "is suffering from a seizure disorder. This condition has resulted in ongoing pain and depressive symptoms. This comorbidity is well-established in the literature . . ." and that the Veteran's psychiatric disability is more likely than not caused by and permanently aggravated by his seizure disability. As this opinion is based on an examination and review of the Veteran's medical history, and supported by a rationale, it is highly probative. The evidence is at least in equipoise that the Veteran's depression is secondary to his service-connected seizure disability. ORDER The appeal seeking to reopen a claim of service connection for a cervical spine disability is denied. The claim of service connection for a seizure disorder is reopened; service connection for a seizure disorder is granted on de novo review. Service connection for a psychiatric disability, to include as secondary to a seizure disorder, is granted. ____________________________________________ M. C. Graham Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs