Citation Nr: 1805578 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-43 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for epilepsy. 2. Entitlement to service connection for epilepsy. REPRESENTATION Appellant represented by: Lewis C. Fischera, Esq. ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran had active military service from November 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2). The reopened claim of service connection for epilepsy, on the merits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A February 2010 rating decision denied reopening a claim of service connection for epilepsy. 2. Evidence added to the record since the February 2010 decision provides a reasonable possibility of substantiating the claim for service connection for epilepsy. CONCLUSIONS OF LAW 1. The February 2010 rating decision that denied reopening a claim of service connection for epilepsy is final. 38 U.S.C § 7105 (West 2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received since the February 2010 rating decision is new and material, and the claim for service connection for epilepsy is reopened. 38 U.S.C. §§ 5107, 5108 (West 2012); 38 C.F.R § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C. § 7105; 38 C.F.R. §§ 29.302, 20.1103. Board decisions are final on the date stamped on the face of the decision. 38 C.F.R § 20.1100. If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 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). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). An October 2007 Board decision denied service connection for a seizure disorder. The Board decision explained that while the Veteran testified and provided lay statements from family members that he had seizures during service; there was no competent evidence to establish that his seizure disorder manifested during service or in the first post-service year. The Board decision became final on October 24, 2007, the date it was stamped. 38 C.F.R § 20.1100. A February 2010 rating decision denied the Veteran's claim to reopen service connection based on finding that new and material evidence had not been submitted. The rating decision noted that updated medical treatment records had been submitted, but such records did not provide evidence of a nexus between his epilepsy and his military service or that his epilepsy manifested within one year of discharge from service. The Veteran submitted a notice of disagreement in May 2010 and the RO issued a Statement of the Case in October 2011. However, the Veteran did not file a substantive appeal. Therefore, the February 2010 rating decision became final. Evidence of record at the time of the February 2010 rating decision included the Veteran's service treatment records (STRs), his military personnel records, post-service private and VA treatments, lay statements, and testimony at a prior hearing. Evidence received since the February 2010 rating decision includes updated VA and private treatment records, and August 2011 testimony by the Veteran and his wife before the RO. The updated VA treatment record includes a November 2012 VA epilepsy disability benefits questionnaire, where a VA neurologist opined that based on his reports of "passing out" during service it is at least as likely as not that his epilepsy "goes back to his military years," because his passing out is at least as likely as not the first indication of his seizure disorder. The claim was previously denied because there was no competent evidence that established that the Veteran's epilepsy manifested during service. The new evidence, therefore, includes medical evidence that suggests that his epilepsy began during service. That evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In light of the foregoing, the Board finds that the Veteran's claim for service connection for epilepsy is reopened; however, further development is required prior to adjudication. ORDER New and material evidence has been received to reopen the claim of service connection for epilepsy and to that extent only, the appeal is allowed. REMAND Further development of the record is needed prior to a de novo consideration of the Veteran's claim. While the November 2012 medical opinion is enough to reopen the claim, it is inadequate to decide the merits. The opinion provider did not review the Veteran's claims file, to include his service treatment records. The examiner referred to a 1969 diagnosis of epilepsy, which would be during service; however, there is no such diagnosis. The examiner also referenced the Veteran's reports of "passing out" during service in what appears to be the basis for concluding that the epilepsy began in service. The opinion provider did not address the fact that epilepsy was first diagnosed in 1971, and records at that time noted reports it may have been related to recent binge drinking. Accordingly, a new opinion is necessary to consider all pertinent evidence. It appears that private treatment records exist that have not been associated with the record before the Board. The Veteran's updated VA treatment records received since the October 2007 final Board decision reflect that the Veteran received private treatment from Dr. G at the Cooper Neurological Institute and from Dr. Sp. and from Dr. Sh at the Jefferson University Hospital. There is no indication whether any attempt has been made to obtain the remaining records. Thus, on remand, the treatment providers should be identified and efforts made to obtain any available records. 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. Obtain the names and addresses of all providers who treated the Veteran for epilepsy since 2010. After securing the necessary releases, take all appropriate action to obtain these records, including any VA treatment records, Dr. G at Cooper Neurological Institute, and Dr. Sp. and Sh. at Jefferson University Hospital. 2. After the completion of the above, schedule the Veteran for an appropriate examination to determine the current nature and likely etiology of his epilepsy. The entire record, including this remand, must be provided to the examiner for review. Based on the record, the examiner should provide an opinion to the following: Is it at least as likely as not that the Veteran's epilepsy is related to his service? In answering this question, the examiner should consider, and discuss as necessary the following: (i) the Veteran's lay statements that he first had a seizure he was on a flight to Germany during service; (ii) the Veteran's reports of "passing out" during service, and; (iii) the first documented diagnosis of epilepsy in 1971. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. The AOJ should then review the record and re-adjudicate the claim. If the benefit remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 (West 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs