Citation Nr: 21071292 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-31 548 DATE: November 30, 2021 ORDER Reconsideration of the prior denial of the claim for service connection for seizure disorder, also claimed as blackouts, is granted. Reconsideration of the prior denial of the claim for service connection for psychoneurotic disorder, also claimed as nervous disorder, is granted. REMANDED Entitlement to service connection for seizure disorder, also claimed as blackouts, is remanded. Entitlement to service connection for psychoneurotic disorder, also claimed as nervous disorder, is remanded. INTRODUCTION The Veteran served in the United States Army from May 1963 to August 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. On September 16, 2021, the Veteran informed the Board that he desired to withdraw his prior request for a Board hearing. He has not requested a new hearing, and as such, his prior request is deemed withdrawn. As will be explained below, the Board finds the claims for entitlement to service connection for a seizure disorder and psychoneurotic disorder, considered by the RO as requests to reopen, are more appropriately characterized as requests for reconsideration pursuant to 38 C.F.R. § 3.156(c). Given the Board's decision to grant reconsideration of the Veteran's claims for entitlement to service connection for seizure disorder and psychoneurotic disorder, the Veteran is not prejudiced by the Board's recharacterization of this issue. FINDINGS OF FACT 1. Since the May 1978 rating decision, the RO has received relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim for entitlement to service connection for blackouts, also claimed as a seizure disorder. 2. Since the May 1978 rating decision, the RO has received relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim for entitlement to service connection for nervous condition, also claimed as a psychoneurotic disorder. CONCLUSIONS OF LAW 1. The criteria for reconsidering the prior denial of the claim for service connection for a seizure disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(c). 2. The criteria for reconsideration of the claim for service connection for a psychoneurotic disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria - Reconsideration Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). However, if at any time after VA issues a decision on a claim, 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. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. See 38 C.F.R. § 3.156(c)(1). Paragraph (c)(1) does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, or from any other official source. 38 C.F.R. § 3.156(c)(2). Factual Background and Analysis The Veteran's claims for entitlement to service connection for blackouts and a nervous condition were denied in a May 1978 rating decision. The rating decision indicated the Veteran did not have service treatment records related to blackouts or a nervous condition. In March 1979, the Veteran submitted a VA Form 21-4138 requesting service connection for headaches and dizziness, noting he was treated for these symptoms while stationed at Ft. Hood, Texas and while stationed in Korea. He also claimed he was discharged because of his headaches and dizziness. The RO treated the Veteran's March 1979 statement as a claim to reopen and declined to reopen the claim because the evidence submitted was not new and material evidence. The Veteran did not further appeal the May 1978 decision and as such it became a final decision. In September 2013, the Veteran submitted a claim for service connection for a seizure disorder and a psychoneurotic disorder. The RO treated the September 2013 claim as a claim to reopen the previously denied claims for service connection for blackouts and a nervous disorder. Subsequently, in November 2013, the Veteran's service treatment records (STRs) were uploaded into the Veteran's electronic claims file. The evidence uploaded included a medical note from May 15, 1964 stating the Veteran was given a psychological evaluation because he was having difficulty adjusting to Army life. Additionally, a medical note dated May 21, 1964 indicated the Veteran was seen for a complaint of frontal headaches. These records existed at the time of the prior denial and could have been obtained had they been requested. Additionally, these records provide relevant evidence for the Veteran's claims. Therefore, the criteria for reconsidering the prior denial have been met. REASONS FOR REMAND While the Board regrets the delay, additional development is required before the Veteran's claims are decided. The Veteran submitted a single VA Form 21-4142 Authorization Form with an attachment listing the following medical facilities: Rush Hospital, Wiess Memorial Hospital, Ingalls Hospital, Impact Alcohol and Substance Abuse Center, Gateway Alcohol Abuse Center, University of Illinois at Chicago, Dr. K.M.K, Hines VA Hospital, and Jesse Brown VA Hospital. A review of the record shows the RO did not take any effort to obtain these outstanding VA and private medical records. Under 38 C.F.R. § 3.159, the VA must provide assistance in developing a veteran's claim. Such assistance includes obtaining private records, as well as records in the custody of a Federal Department or Agency. See 38 C.F.R. § 3.159 (c)(1-2). In this case, the Board finds additional development is necessary to obtain potentially missing probative evidence from the medical facilities listed above. Additionally, the Veteran's STRs show that he was treated for headaches and underwent a psychological evaluation while in service. To date, the Veteran has not been afforded a VA examination to address the nature and etiology of his claimed conditions. Because medical questions remain, a remand for VA examinations is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain the Veteran's VA and private medical records, specifically records from the facilities identified by the Veteran, to include, but not limited to: Rush Hospital, Wiess Memorial Hospital, Ingalls Hospital, Impact Alcohol and Substance Abuse Center, Gateway Alcohol Abuse Center, University of Illinois at Chicago, Dr. K.M.K, Hines VA Hospital, and Jesse Brown VA Hospital. If any requested records are deemed unavailable, the record should be annotated to reflect such, and the Veteran notified. 2. After completion of the above development, a medical opinion should be obtained from an examiner with sufficient experience and expertise to provide an opinion regarding the nature and etiology of the Veteran's claimed seizure disorder, also claimed as blackouts, and psychoneurotic disorder, also claim as a nervous condition. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner is asked to address the following: a) What, if any, diagnosis does the Veteran have related to his claim of a seizure disorder, also claimed as blackouts? In answering this question, the examiner should specifically discuss the Veteran's lay statements, medical records, and relevant service treatment records. b) The examiner should also state whether the Veteran's claimed seizure disorder (also claimed as blackouts) at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. c) What, if any, diagnosis does the Veteran have related to his claim of a psychoneurotic disorder, also claimed as a nervous condition? In answering this question, the examiner should specifically discuss the Veteran's lay statements, medical records, and relevant service treatment records. d) The examiner should also state whether the Veteran's claimed psychoneurotic disorder (also claimed as a nervous condition) at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. In addressing the above, the examiner is reminded that the Veteran is considered to be competent and credible in reporting symptoms that he experienced first-hand. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.