Citation Nr: 1803830 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-26 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a seizure disorder, characterized as epilepsy. 2. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, previously claimed as a nervous condition. 3. Entitlement to service connection for a seizure disorder, characterized as epilepsy. 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to a seizure disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran had active duty service while on active duty for training (ACDUTRA) from August to September 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO, and a transcript of the hearing is of record. The Veteran is claiming service connection for an acquired psychiatric disorder, claimed as depression. During the course of this appeal, his psychiatric symptoms have been diagnosed as depression and a mood disorder. However, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected in the title page, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a January 2004 rating decision, the claim of entitlement to service connection for a seizure disorder was denied because it was not related to service. 2. The evidence added to the record since the January 2004 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a seizure disorder. 3. In a January 1981 rating decision, the claim of entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition, was denied on the basis that the Veteran did not have a current diagnosis. 4. The evidence added to the record since the January 1981 decision became final relates to an unestablished fact that is necessary to substantiate the claim of service connection for an acquired psychiatric disorder. 5. It is at least as likely as not that the Veteran's seizure disorder was related to active duty service. CONCLUSIONS OF LAW 1. The January 2004 rating decision that denied the Veteran's claim for entitlement to service connection for a seizure disorder, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. As the evidence received subsequent to the January 2004 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for a seizure disorder have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.102, 3.156 (2017). 3. The January 1981 rating decision that denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. As the evidence received subsequent to the January 1981 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.102, 3.156 (2017). 5. The criteria for entitlement to service connection for a seizure disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case the Veteran is claiming entitlement to service connection for an acquired psychiatric disorder and a seizure disorder. The Veteran's acquired psychiatric disorder (originally characterized as a nervous condition) claim has been previously denied by the RO in January 1981 on the basis that he did not have a nervous disorder. With respect to a seizure disorder, this claim was denied in a January 2004 decision on the basis that it was not related to service. He did not appeal either decision, nor did he submit any new and material evidence within a year of receiving them. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claims. After a review of the evidence submitted since the January 1981 and January 2004 rating decisions became final, respectively, the Board determines that the claims should be reopened. The evidence now includes new medical evidence, such as medical treatment records, and statements from the Veteran's family which raises the possibility that he has a current psychiatric disorder that may be related to service, and that his seizure disorder is related to his service. Not only is this evidence "new" in that it was not of record prior to the last final denial of the claim, it is also "material," as it relates to an unestablished fact necessary to support the claims. Namely, it shows that his psychiatric and seizure disorders were incurred in service and may be related thereto. Therefore, the claims should be reopened on this basis. Service Connection The Veteran is claiming entitlement to service connection for a seizure disorder, characterized as epilepsy. Specifically, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In this case, the Board determines that service connection should be granted for the Veteran's seizure disorder. As an initial matter, the Board notes that the Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disabilities noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111, 1132 (2012); 38 C.F.R. § 3.304(b) (2017). Here, the Veteran's July 1978 entrance examination does not report any signs, symptoms, or a diagnosis related to a seizure disorder. Similarly, the available pre-service medical records do not report symptoms of, or a diagnosis related to a seizure disorder. Further, while there is evidence in the record to suggest that the Veteran had a family history of a seizure disorder, there is no actual evidence prior to service that would constitute clear and unmistakable evidence that the Veteran actually had a seizure disorder prior to service. Indeed, even the June 1980 VA examiner reports that the Veteran's seizure disorder first manifested during service. Therefore, the Board will accept that his seizure disorder did not occur prior to service. Next, in conjunction with the credible statements from the Veteran and his family, the VA treatment records, including from August 1979 and November 2009, reflect that the Veteran's seizure disorder was caused by a head trauma after falling down a flight of stairs during active service. The medical evidence of record also includes a 1980 VA opinion which indicates the Veteran's seizure disorder was first diagnosed during service. Therefore, the weight of the evidence supports service connection, or at the very least, the evidence is in equipoise. As such, service connection for a seizure disorder should be granted. VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, to the extent it is being adjudicated, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a seizure disorder and an acquired psychiatric disorder is granted, and the claims are reopened. Service connection for a seizure disorder, characterized as epilepsy, is granted. REMAND After a careful review of the record, the Board finds that the Veteran's service connection claim for an acquired psychiatric disorder requires a remand for a VA examination. Specifically, the Veteran's VA treatment records, including from December 2004 and November 2009, indicate that the Veteran's psychiatric disorder may be related to service, to include as secondary to his service-connected seizure disorder. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in Portland, Oregon since April 2014, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to identify all current psychiatric disorders (including depression, anxiety, and mood disorder) found on examination. For each diagnosed psychiatric disorder, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed disorder is etiologically related to the Veteran's period of service, to include as secondary to his service-connected seizure disorder. If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based. The claims file must be reviewed and such review should be noted in the opinion. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Following any additional indicated development, the RO should review the claims file and re-adjudicate the Veteran's claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs