Citation Nr: 1804031 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-15 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for epilepsy; and if so, whether the reopened claim should be granted. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depression. ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active naval service from April 1969 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota and an April 2014 rating decision by the VA RO in Phoenix, Arizona. The Board notes that the Veteran originally claimed entitlement to service connection for PTSD, depression, and anxiety as separate claims. However, the Board has recharacterized the issue on appeal in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for epilepsy and entitlement to service connection for an acquired psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed November 1996 rating decision denied entitlement to service connection for epilepsy. 2. The evidence associated with the claims file subsequent to the November 1996 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for epilepsy. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION A November 1996 rating decision denied entitlement to service connection for epilepsy based on an absence of any connection between the Veteran's diagnosed epilepsy and his reported in-service incident. The Veteran did not appeal that decision. The pertinent evidence that has been received since the rating decision includes additional VA Medical Center treatment records, and additional lay statements indicating that the Veteran has been diagnosed with epilepsy and consistently stating that he was electrocuted while on active duty, and that he has experienced both grand mal and petit mal seizures following discharge. The Board finds that the Veteran's VA Medical Center treatment records and additional lay statements are new and material. The Board notes they are not cumulative or redundant of the evidence previously of record. Moreover, they raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for epilepsy is warranted. ORDER New and material evidence has been received and reopening of the claim of entitlement to service connection for epilepsy is granted. REMAND The Board finds that additional development is required before the remaining issues on appeal are decided. With regard to the Veteran's claim of entitlement to service connection for epilepsy, the Veteran has asserted that he developed a seizure disorder as a result of being electrocuted by electronics equipment while serving aboard the U.S.S. Wainwright during active service. He reported that the electrocution caused him to lose consciousness and he was treated in medical. A review of the record shows that some of the Veteran's service treatment records (STRs) and service personnel records (SPRs) have been deemed unavailable for review. As a result, there are no STRs or SPRs of record corroborating the Veteran's claim of being electrocuted and receiving treatment for such during active service. However, when service department records are missing, the Veteran is competent to report about factual matters which he had firsthand knowledge, including experiencing pain during service, reporting to sick call, and undergoing treatment. Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, in the absence of evidence to the contrary, the Board concedes that the in-service incident occurred as described by the Veteran. A review of the post-service treatment notes of record shows that the Veteran began having seizures in 1984 and was subsequently diagnosed with epilepsy. He has continued to receive treatment for such since that time. In light of the in-service incident of electrocution and the post-service evidence showing the Veteran to have epilepsy, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present seizure disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to his claim of entitlement to service connection for a psychiatric disability, the Veteran asserts that he has an acquired psychiatric disability that was caused by his active service; or, in the alternative, by his epilepsy. Additionally, the Veteran has reported that he has PTSD as a result of his father committing suicide when he was a child and a subsequent abusive childhood. In cases where the disease or injury at issue is not "noted" on the entrance examination, a very specific standard is for application. There is a two-pronged test for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). On the Veteran's January 1969 entrance report of medical history, the Veteran denied depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort. On his January 1969 entrance report of medical examination, he was noted to be psychiatrically normal upon clinical examination. A review of the claims file shows that the Veteran has been in receipt of mental health treatment While the Veteran was afforded a VA psychiatric examination in March 2014, an opinion regarding the etiology of any currently present psychiatric disability has not been obtained. In light of the Veteran's reports and the post-service medical evidence of record showing treatment for a current psychiatric disability, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present psychiatric disability. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present seizure disorder. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present psychiatric disability is etiologically related to the Veteran's active service, to specifically include his reported in-service electrocution event. The examiner should presume that the Veteran is a reliable historian with regard to his report of being electrocuted during service, and receiving treatment for such. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present psychiatric disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide the following: a) Identify all psychiatric disability currently present, and/or present during the pendency of the claim. b) For each identified psychiatric disability, the examiner should provide an opinion as to whether that disability clearly and unmistakably existed prior to the Veteran's active service. In forming the opinion, the examiner must take note that the Veteran's lay statements alone are not a sufficient basis for a finding that a disability clearly and unmistakably existed prior to service. c) For all psychiatric disabilities found to have clearly and unmistakably existed prior to the Veteran's active service, the examiner should provide an opinion as to whether that disability was clearly and unmistakably NOT aggravated by active service. d) For any disability found to not exist prior to active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that such disability is etiologically related to the Veteran's active service. e) With regard to ALL currently present psychiatric disabilities, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability was caused or chronically worsened by the Veteran's seizure disorder. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow for appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs