Citation Nr: 21002162 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-27 815A DATE: January 12, 2021 ORDER Entitlement to an effective date prior to January 20, 2011 for grant of service connection for seizure disorder is denied. FINDINGS OF FACT 1. The Veteran’s claim to reopen a previously denied claim of entitlement to service connection for a seizure disorder was received by VA on January 20, 2011, and no informal claim for benefits was received prior to that date. 2. Service department records received in December 2011 were not relevant for purposes of 38 C.F.R. § 3.156(c). CONCLUSION OF LAW The criteria for effective date prior to January 20, 2011 for grant of service connection for seizure disorder have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the U.S. Air Force from August 1982 until February 1984. This matter initially came to the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2019, the Board denied the claim. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court) and in July 2020, pursuant to a joint motion for partial remand (JMPR), the Court vacated the March 2019 denial. The appeal is once again before the Board for consideration. Earlier Effective Date In the July 2020 JMPR, the parties agreed that the Board erred because it failed to address 38 C.F.R. § 3.156(c) and service department records that were not associated with the claims file until December 2011 – many years after the Veteran’s initial claim was denied. The parties to the JMPR did not take issue with the Board’s finding that the Veteran’s claim to reopen a previously denied claim of entitlement to service connection for a seizure disorder was received by VA on January 20, 2011; that the prior final denial was a November 2009 rating decision that denied reopening; and that no informal claim for benefits was received prior to January 20, 2011. Accordingly, here, the Board’s discussion will focus on the potential application of 38 C.F.R. § 3.156(c). In this regard, in the JMPR, the parties identified service records dated in 1983 and 1984 that were received in December 2011, including a letter of reprimand related to an assault, with an attachment from the Veteran’s commander that indicated that the Veteran had been hospitalized for seizures during service. The letter of reprimand showed that the Veteran’s commander was precluded from taking more severe disciplinary against him due to a history of seizures. The parties noted that after these documents were received, VA submitted an examination request specifically citing the information from these documents and that the Veteran’s claim for service connection for a seizure disorder was later granted. The Veteran argues that the subsequent grant of service connection was based all or in part on these records, as well as a service treatment record received in February 2012 showing that the Veteran had been placed on a profile prohibiting him from operating vehicles or machinery due to his history of seizures. He therefore argues that the effective date of the award should have been based on date VA received the 1984 claim. Thus, he contends, since the claim was received within one year of separation from service, the grant of service connection should be effective the day after separation from service. Section 3.156 provides that “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” 38 C.F.R. § 3.156(c)(1). In Kisor v. Wilkie, the Federal Circuit held that under 38 C.F.R. § 3.156(c)(1), in order to be “relevant,” the service record at issue must speak to a matter in issue, in other words, a matter in dispute. 969 F.3d 1333. In that case, a Veteran was initially denied service connection for posttraumatic stress disorder (PTSD) because although service records established that he had suffered an in-service combat stressor, there was no current disability. Many years later, additional service department records were received which again confirmed that he participated in combat. Receipt of these records prompted the RO to obtain a new VA examination where the examiner provided a current diagnosis of PTSD and which led to an award of service connection. The Federal Circuit clarified that the subsequently received service department records were not “relevant” within the meaning of 38 C.F.R. § 3.156(c) because the additional records did not speak to the basis of VA’s prior decision: the lack of a current disability. There was no dispute as to whether the Veteran suffered an in-service combat stressor since this had already been established at the time of the initial denial of service connection. Therefore, reconsideration was not warranted and an earlier effective date pursuant to 38 C.F.R. § 3.156(c) could not be assigned. The facts in this case are analogous to those in Kisor. Here, the Veteran first filed a claim for a seizure disorder in July 1984 which was denied in a March 1985 rating decision; this denial was again confirmed in June and July 1985 rating decisions the latter of which became final. (After the July 1985 rating decision, the Veteran made a number of other attempts to obtain service connection for a seizure disorder, all of which were denied. As noted above, the last final denial before he was granted service connection occurred in November 2009.) The March 1985 rating decision concluded that although the Veteran had a history of seizures in service, he did not have a current seizure disorder. The RO found that the evidence showed that the Veteran was hospitalized at Minot Hospital, North Dakota from August 10, 1983 to August 13, 1983. Two fellow missile security policemen who were with the Veteran when he was working in the missile field reported that the Veteran suddenly became unresponsive, stiffened and shook all over but that following the seizure, he regained consciousness. In the disposition portion of the rating decision, the RO stated: “Veteran has a history of seizure in service not substantiated by laboratory findings. Service connection for seizure disorder will be reconsidered upon receipt of additional medical evidence.” A few weeks later, the Veteran underwent a VA examination, and in June and July 1985 rating decisions, the RO again found that the claim could not be granted. The RO determined that a current diagnosis of a seizure disorder had not been substantiated by laboratory findings and that EEG and CT scans were normal. The service department records identified in the JMPR, which were not received until December 2011, show that during service the Veteran had been followed for a seizure disorder which began in August 1983 and that the Veteran was taking Dilantin, an anticonvulsant medication, to prevent recurrent seizures. Like Kisor, these service department records were not received until many years later and prompted the RO to obtain a VA examination which eventually resulted in an award of service connection. These service department records, however, are not directed to an undisputed fact. Evidence of record at the time of the 1985 denials already established that the Veteran suffered from seizures during service and the RO so concluded in the 1985 rating decisions. The Veteran argues that these service records establish the missing nexus element and therefore they are relevant for purposes of 38 C.F.R. § 3.156(c). See November 2020 correspondence. The Board disagrees. As noted above, these records established only that the Veteran experienced seizures during service – a fact already conceded by the RO in the initial 1985 denial. Although receipt of these records prompted the RO to conduct additional development which ultimately led to an award of service connection, these service department records alone would have been insufficient to establish service connection at the time of the 1985 denials. In this regard, the purpose of 38 C.F.R. § 3.156(c) is “to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim.” Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). Had these service records been associated with the claims file at the time of the 1985 denials, they would not have impacted the laboratory findings, EEG and CT scans revealing normal findings which led the RO to conclude that there was no current disability or nexus to service. In short, because these service department records do not speak to the basis of the prior denial, they are not relevant for purposes of 38 C.F.R. § 3.156(c) and therefore reconsideration was not warranted. Accordingly, there is no basis to assign an effective date earlier than January 20, 2011 for grant of service connection for seizure disorder, to include under 38 C.F.R. § 3.156(c). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Schlickenmaier, Counsel 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.