Citation Nr: 21002093 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-27 422 DATE: January 12, 2021 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for epilepsy (abdominal type) also claimed as vertigo, dizziness, lightheadedness, balance issues with occasional falls, and vomiting. REMANDED Entitlement to service connection for epilepsy (abdominal type) also claimed as vertigo, dizziness, lightheadedness, balance issues with occasional falls, and vomiting is remanded. FINDINGS OF FACT 1. A July 1961 rating decision denied service connection for epilepsy (abdominal type) and a July 1992 rating decision found no new and material evidence for entitlement to service connection for epilepsy (abdominal type) had been received to reopen the claim; the Veteran did not appeal either decision, and new and material evidence was not received within one year of notice of their issuance. 2. Evidence received more than one year since the July 1992 rating decision is neither cumulative nor redundant of evidence at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for epilepsy (abdominal type) also claimed as vertigo, dizziness, lightheaded, balance issues with occasional falls, and vomiting. CONCLUSIONS OF LAW 1. The July 1961 and July 1992 rating decisions denying the claim of entitlement to service connection for epilepsy (abdominal type) are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for epilepsy (abdominal type) also claimed as vertigo, dizziness, lightheaded, balance issues with occasional falls, and vomiting. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1959 to January 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing, which was scheduled for October 2019. However, he failed to appear for the hearing and did not request that the hearing be rescheduled or provide good cause for failing to appear. Thus, the Veteran’s hearing is considered withdrawn. 38 C.F.R. § 20.704(d). New and Material Evidence 1. New and material evidence has been received to reopen the claim for entitlement to service connection for epilepsy (abdominal type) also claimed as vertigo, dizziness, lightheadedness, balance issues with occasional falls, and vomiting. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as 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). The RO denied the Veteran’s initial claim for entitlement service connection for epilepsy (abdominal type) in a July 1961 rating decision based on no evidence that the condition was incurred during service and that it instead pre-existed service and was not aggravated during service. Subsequently, the RO declined to reopen the claim for no new and material evidence in a July 1992 rating decision. The Veteran was informed of these decisions July 1961 and August 1992, respectively, he did not appeal the decisions, and new and material evidence was not received within one year of notice of issuance of the decisions. Thus, the July 1961 and July 1992 rating decisions became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the most recent final July 1992 rating decision constitutes new and material evidence as to the Veteran’s service connection claim for epilepsy (abdominal type). Specifically, a June 2016 lay statement from the Veteran stating there is no medical evidence indicating his disability pre-existed service, that he completed basic training and AIT before he had any issues with symptomatology, and that as a result his condition was asymptomatic until service. This evidence is new, as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for epilepsy (abdominal type) also claimed as vertigo, dizziness, lightheaded, balance issues with occasional falls, and vomiting and the claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for epilepsy (abdominal type) also claimed as vertigo, dizziness, lightheadedness, balance issues with occasional falls, and vomiting is remanded. The Veteran maintains that his epilepsy, vertigo, dizziness, lightheadedness, and balance issues were incurred during service. Alternatively, he maintains that any pre-existing condition was asymptomatic until service and thus was aggravated by his service. See August 2015 VA Form 21-526EZ and June 2016 VA Form 9. Additionally, given the Veteran’s current diagnosis of vertigo and a history of epilepsy (abdominal type) diagnosis, his service treatment records (STRs) confirming a epilepsy (abdominal type) diagnosis and several complaints of dizziness and fainting spells and the lay statements of record, the Board finds that a VA examination and medical opinion are warranted on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of any current epilepsy or vertigo disability. The claims folder should be made available and reviewed by the examiner. All findings should be reported in detail. The examiner should address the following: (a) Diagnose any epilepsy or vertigo disability present since August 2015, to include epilepsy (abdominal type) and vertigo. If a diagnosis of vertigo is not warranted, please reconcile your findings with diagnosis of the same in an October 2016 VA treatment record. (b) For any disability diagnosed in part (a) did the disability (1) clearly and unmistakably (undebatably) pre-exist service and, (2) if so, was the disability clearly and unmistakably not aggravated by active service beyond the normal progression of the disease? Please explain why or why not, considering (i) the essentially negative April 1959 entrance examination report and a diagnosis of epilepsy (abdominal type) soon after in a December 1959 retirement examination report; (ii) the December 1959 retirement examination report and a June 1961 post-service medical report noting the Veteran’s complaints of dizziness, vertigo, and nausea and vomiting with syncopal attacks since 1955, which predates service, although the frequency of attacks increased over time; and (iii) the Veteran’s recent lay statements that his condition was asymptomatic prior to service and that he was able to successfully complete basic training and AIT and thus his disability was aggravated by service as he did not experienced symptoms until service. See June 2016 VA Form 9. (c) If any diagnosed disability listed in part (a) did not clearly and unmistakably pre-exist service, or clearly and unmistakably pre-existed service but was clearly and unmistakably not aggravated during service, is it at least as likely as not (50 percent probability or more) that such disability had its onset during service or is otherwise the result of a disease or injury in service? In addressing this question please comment on the Veteran’s STRs noting several complaints of dizziness and fainting spells and a diagnosis of epilepsy (abdominal type) and the Veteran’s lay statement that the initial onset of his symptoms began during service. See August 2015 VA Form 21-526EZ and June 2016 VA Form 9. A complete rationale must be provided for all opinions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.