Citation Nr: 21067101 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-46 591 DATE: November 3, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a seizure disorder is granted. New and material evidence having not been received, the claim of entitlement to service connection for a cyst is not reopened. REMANDED Entitlement to service connection for a seizure disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a final rating decision issued in December 2014, a VA Regional Office denied service connection for a seizure disorder and a cyst. 2. Evidence concerning the seizure disorder which was added to the record since the final December 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection. 3. Evidence concerning the cyst which was added to the record since the final December 2014 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection. CONCLUSIONS OF LAW 1. The December 2014 rating decision that denied service connection for a seizure disorder and a cyst is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a seizure disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a cyst. 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 May 24, 2005 to June 21, 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2016 by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the undersigned in June 2021. A transcript of that hearing has been associated with the record. New and Material Evidence The Veteran asserts that service connection is warranted for a seizure disorder and a cyst. He contends that these conditions pre-existed his military service and were aggravated by such. Specifically, the record shows that when the Veteran enlisted in the Army, he stopped taking medication which had been prescribed to treat a seizure disorder that had existed since childhood. Days later, he experienced migraines and had a seizure, and was subsequently separated from service. Since separation, he has experienced an increase in the frequency of his seizures, to the point that he is unable to work. He filed his claims based on his belief that the increase in seizures was due to the stopping of medication while in service. By way of background, the Veteran first filed for service connection for a seizure disorder in March 2006. That claim was denied in October 2006, with a finding that his seizure disorder was not aggravated by his military service. In April 2014, the Veteran filed a claim to reopen his previously-denied claim of entitlement to service connection for a seizure disorder, as well as a claim of entitlement to service connection for a cyst. In a December 2014 rating decision, the Regional Office reopened the seizure claim and denied it, and denied the cyst claim, finding that both conditions pre-existed service and were not aggravated by such. Later in December 2014, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, the December 2014 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Generally, a claim which has been denied in an unappealed Board decision or an unappealed Regional Office decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the December 2014 rating decision, additional evidence consisting of updated VA and private treatment records, Social Security Administration (SSA) records, and the Veteran's lay statements, to include those offered at the June 2021 Board hearing, has been received. In this regard, the submitted treatment records show that the Veteran has continued to experience an increase in the frequency of his seizures. Similarly, SSA records reflect that his seizure disorder is of such a severity that he is unable to work. Finally, at the June 2021 Board hearing, the Veteran testified that he discussed his seizure disorder with his treating physician, who told him the increase in the disorder was due to the fact that he stopped taking his medication. Consequently, as the newly received evidence includes an indication that the Veteran's seizure disorder may have been aggravated by his military service, the Board finds that the evidence added to the record since the final December 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection. Therefore, new and material evidence has been received, and such claim is reopened. Conversely, the Board finds that the evidence submitted regarding the Veteran's claim of entitlement to service connection for a cyst is not new or material. The evidence of record shows that the Veteran had a cyst prior to service. The December 2014 rating decision denied a claim of service connection, finding that there was no aggravation of the cyst by the Veteran's brief military service. As noted above, new treatment records, SSA records, and lay statements have been added to the record since the December 2014 decision. However, the Board finds that this new evidence is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the claim. None of the new evidence shows that the Veteran's pre-existing cyst was aggravated by his military service. Therefore, as new and material evidence has not been received, the application to reopen the claim of entitlement to service connection for a cyst is denied. REASONS FOR REMAND Entitlement to service connection for a seizure disorder is remanded. The Veteran has asserted that his seizure disorder, which has existed since childhood, permanently worsened when he stopped taking his anti-seizure medication upon entry to service. He testified before the Board that his treating physician told him that there was a link between the medication stoppage and the increased seizures. To date, no medical professional has formally addressed such a link. Therefore, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his seizure disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service). Entitlement to TDIU is remanded. A TDIU is based on the functional impact of a veteran's service-connected disabilities. It is assigned where it is found that a disabled veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Currently, the Veteran has a single service-connected disability which is rated at 10 percent disabling. Thus, he does not meet the schedular criteria for TDIU. As the development and adjudication of the Veteran's seizure disorder claim could affect his assigned disability rating, the Board must find that the matter of entitlement to TDIU is inextricably intertwined with the remanded issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116 (1994). Therefore, adjudication of such matter must be deferred pending the outcome of the service connection claim remanded herein. The matters are REMANDED for the following action: Forward the record to a VA clinician to obtain an opinion regarding the etiology of the Veteran's seizure disorder. The examiner is asked to address whether there is clear and unmistakable evidence that the Veteran's seizure disorder pre-existed service. a) If there is clear and unmistakable evidence that the disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated. The examiner is asked to specifically address the Veteran's assertion that his seizure disorder was worsened when he stopped taking his anti-seizure medication upon entrance to the Army. If there was an increase in the severity of the Veteran's disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. b) If there is no clear and unmistakable evidence that the current seizure disorder pre-existed service, then the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's military service. A detailed rationale for any opinion offered should be provided R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.