Citation Nr: 21075929 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 10-40 165 DATE: December 21, 2021 ORDER Whether new and material evidence has been received to reopen a claim of service connection for a seizure disorder is granted. Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a seizure disorder (on the merits) is remanded. Entitlement to service connection for a psychiatric disability claimed as PTSD (on the merits) is remanded. FINDINGS OF FACT 1. A July 2002 rating decision denied the Veteran service connection for a seizure disorder, finding that the evidence failed to show that current diagnoses of spine disabilities were incurred in or caused by service; evidence received since that decision, including a private medical opinion relating the diagnoses of cervical and lumbar spine disabilities to an event in service, relates to an unestablished fact necessary to substantiate the claim and raises a possibility of substantiating the claim. 2. A July 2002 rating decision denied the Veteran service connection for PTSD, finding that the evidence failed to show that current diagnoses of spine disabilities were incurred in or caused by service; evidence received since that decision, including a private medical opinion relating the diagnoses of cervical and lumbar spine disabilities to an event in service, relates to an unestablished fact necessary to substantiate the claim and raises a possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a seizure disorder may be reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ § 3.104, 3.156. 2. New and material evidence has been received, and the claim of service connection for PTSD may be reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had two distinct periods of active service: from November 14, 1969 to April 13, 1971 (honorable service) and April 14, 1971 to December 18, 1973 (other than honorable). This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 Department of Veterans Affairs (VA) rating decision, which denied the Veteran's application to reopen claims of service connection for seizure disorder and PTSD. In March 2016, the Board remanded the case to the Regional Office (RO), or agency of original jurisdiction (AOJ), to afford the Veteran a Board hearing. In June 2016, a videoconference hearing was held before the undersigned. In December 2016, the Board remanded the case to the AOJ for additional development of the claims, to include making an administrative determination as to the character of the Veteran's military discharge (there was a question as to whether his military service consisted of one or two distinct periods). A December 2020 administrative decision determined there were two distinct periods (with a different character of discharge for each period of service). While the AOJ in an August 2021 supplemental statement of the case reopened both claims based on receipt of new and material evidence (and denied both claims on the merits), the Board has jurisdictional responsibility to determine whether a previously denied claim here, a prior, unappealed July 2002 rating decision denied service connection for seizure disorder and PTSD is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the initial matter for appellate consideration as to both claims is whether to reopen them. Service Connection 1., 2. Whether new and material evidence has been received to reopen claims of service connection for a seizure disorder, and for PTSD A July 2002 rating decision denied service connection for a seizure disorder and PTSD. Regarding the seizure disorder, it was found that while there was evidence of a current diagnosis, there was no medical evidence to show that it began in service. Regarding PTSD, it was determined that the Veteran did not have a confirmed diagnosis of PTSD and that the evidence was inadequate to show that a stressful experience had occurred. As the Veteran did not file an appeal of the July 2002 rating decision to the Board or submit new and material evidence within the following year, that decision became final. The claims may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The record at the time of the July 2002 rating decision included service treatment records (STRs) and VA outpatient treatment records for 2001 and 2002. The STRs do not show any complaints, treatment, or diagnosis of a seizure disorder or a psychiatric disability. Post-service treatment records show a diagnosis of a seizure disorder many years after service and a positive PTSD screen with the Veteran's report of having been a victim of a sexual assault in the military when he was stationed in Germany. He did not furnish a stressor statement with particular details, as requested in May 2002. "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). For the purpose of reopening a claim, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the July 2002 rating decision includes VA treatment records, reports of a VA examination, records from the Social Security Administration (SSA), and statements and hearing testimony. Various statements by the Veteran assert that he had seizures during service (at some point, before he went AWOL in June 1971) for which he was treated on several occasions and was admitted to a hospital for observation and given medication (dilantin). He also alleged in numerous statements that he experienced an incident of military sexual trauma on November 3, 1970. At a February 2010 RO hearing and a June 2016 Board hearing, the Veteran asserted that he received treatment in service (and medication) for seizures (but no mental health treatment) in the early part of 1970 and that a military sexual assault led to his PTSD. He indicated that he tried to commit suicide in 1971 and ended up at the VA hospital (East Orange, NJ). VA records show ongoing treatment for seizures, as well as PTSD related to a military sexual assault. Records from the SSA show that he was given a diagnosis of PTSD related to a rape in service on an April 1993 private examination and that private records in May 1993 note a history of a seizure disorder. VA records, such as a September 2009 VA discharge summary and a February 2010 treatment record, relate the Veteran's report that he has been having blackouts and syncope-type episodes since the 1970s and dilantin was prescribed. A February 2010 VA health summary indicates an assessment of PTSD from military sexual trauma. On a September 2010 psychiatric inpatient consult, the Veteran reported he did not have any seizures in childhood and first began experiencing them as an adult shortly after he was sexually assaulted in the military. A July 2021 VA examination report notes a diagnosis of PTSD and that the claimed military sexual assault was the stressor upon which the diagnosis was made. This evidence is new evidence because it was not considered in the July 2002 rating decision. Moreover, it is also material evidence, as it appears to relate the current seizure disorder and PTSD to the period of the Veteran's military service that is deemed honorable for VA disability compensation purposes. Further, it reflects a diagnosis of PTSD that has been related to the alleged military sexual assault. (The Veteran's stressor statements are presumed credible for the purpose of reopening this claim.) Therefore, such evidence relates to an element necessary to substantiate the service connection claims (e.g., a connection between the current diagnosis and service relative to the seizure claim, and a current diagnosis associated with military sexual trauma relative to the PTSD claim) and raises a possibility of substantiating the claims. In short, considered with the evidence of record in July 2002, this evidence constitutes new and material evidence sufficient to reopen the claims of service connection for a seizure disorder and PTSD. REASONS FOR REMAND 1. 2. Entitlement to service connection for a seizure disorder and a psychiatric disability claimed as PTSD (both on the merits) The December 2016 Board remand directed the AOJ to obtain all inpatient and outpatient records from the East Orange VA Medical Center (VAMC) beginning in January 1971. After several requests, the only available records were those dated from February 1993; however, it does not appear that the requests to the East Orange VAMC specifically included inpatient/hospital records, as denoted by the Board remand (in fact, some requests only appear to indicate outpatient records were being sought). Therefore, given that numerous statements of the Veteran indicate he was hospitalized at the East Orange VAMC during his active duty (as well as in 1974), the Board finds that another request should be made to ensure all available records are obtained. (It is also noted that the VA notified the Veteran in July 2017 that it was unable to secure VA records prior to 2005, which is an obvious error.) Based on the Veteran's statements of hospitalization (and prescription for dilantin for seizures) at the Army base where he was stationed in Augsburg, Germany, the VA sought to obtain any inpatient records of treatment for seizures from the hospital for the period from February 1970 through June 1971. The April 6, 2017 response indicates that on "04/07/2017" all available requested files, for records dated in 1970, were sent for upload into the claims file, and that the results for the records dated in 1971 were negative [the search request was divided into two distinct time periods]. No Army hospital records were subsequently added to the claims file, and it is not clear if there were ever any that had been located. Another request should be made to ensure an exhaustive search for all service inpatient clinical records has been made. Regarding treatment for PTSD, a March 12, 2010 VA social work note (from Phoenix VAMC) indicates that the Veteran had his first appointment with the Vet Center scheduled for March 19, 2010. There is no indication that the VA has sought these records, which would be pertinent to the claim. After receipt of any additional treatment records pertaining to seizures, the VA should determine whether to arrange an examination of the Veteran to ascertain the nature and etiology of his seizure disorder. As the record now stands, there is conflicting evidence as to the onset of his current disability. For example, there are private records, such as those from Saint Barnabas Medical Center dated in May 1993, which indicate a past medical history of seizure disorder since childhood (some records refer to a head injury at age 5 or 6 as the incipient cause). Service treatment records currently on file do not show any seizure history or problems during service, yet the Veteran has testified to his treatment of seizures/blackouts in service. Post-service medical records do not show seizures or symptoms thereof until 1993, with some reports of seizures possibly associated with a serious head injury in 1991 or 1992. The Board finds the July 2021 VA psychiatric examination to be inadequate and that further medical inquiry is warranted. To establish service connection for PTSD, there must be corroborating evidence of a (non-combat) stressor event in service. Where the stressor involves a personal assault in service, evidence from sources other than the Veteran's service records may corroborate his account of the incident; such evidence, for example, may demonstrate behavioral changes following the claimed assault, deterioration in work performance, substance abuse, and unexplained social behavior changes. See 38 C.F.R. § 3.304(f)(5). On July 2021 examination, the examiner concluded that the Veteran's diagnosed PTSD and generalized anxiety disorder were likely related to his claimed military sexual trauma on November 3, 1970. She found that the alleged stressor event was, as likely as not, supported by and consistent with in-service "marker" evidence, and she opined that the evidence, evaluation, and presentation of the Veteran were consistent with him having experienced military sexual trauma. The Board observes, however, that much of the "marker" evidence relied upon by the examiner appears to be based solely on the Veteran's own unsubstantiated reports and are not shown by the service personnel and treatment records. For example, there is no evidence that the Veteran was treated for injuries sustained in the military sexual trauma, that he began to drink alcohol heavily following the alleged incident, that he and his girlfriend broke up following the incident, that he became socially isolative following the incident, or that he reported the incident to his leadership (as the examiner noted). Further, while the Veteran did go AWOL from June 9, 1971 to October 10, 1973 (another "marker" cited by the examiner), a comprehensive reading of the evidence in the file to include the Veteran's own statements appears to indicate he had behavioral problems prior to entering service. Further, except for the date and place of the alleged sexual assault, the Veteran has provided conflicting details of the assault itself over the years, and his account of the reason he went AWOL has differed in his statements in support of the claim, in testimony, and in the explanation he gave prior to his (other than honorable) discharge. The opinion provided appears based on inaccurate factual premises. Therefore, after receipt of any additional treatment records, particularly those contemporaneous to service, the VA should obtain an addendum medical opinion to ascertain whether his current psychiatric diagnoses are related to service. The matters are REMANDED for the following: 1. Obtain all available records of inpatient treatment of the Veteran for seizures at the U.S. Army base in Augsburg, Germany from February 1970 through June 1971. All efforts must be documented in the claims file, to include any negative responses. 2. Obtain all available records of inpatient treatment of the Veteran for a psychiatric disability and seizures from the East Orange VAMC from January 1971 to February 11, 1993. The search should include archived records, and all efforts must be documented in the claims file, to include any negative responses. 3. Secure any records of treatment of the Veteran for PTSD at a Vet Center beginning on March 19, 2010 (see Phoenix VAMC social work note dated March 12, 2010, referencing a Vet Center appointment). 4. After receipt of any additional medical records, undertake all further necessary development of the claim for service connection for a seizure disorder, to include ascertaining whether to arrange a VA neurology examination of the Veteran to address the etiology of his current seizure disorder. (Any VA examiner should address the conflicting evidence in the file as to the onset of his current disability. For example, records from Saint Barnabas Medical Center dated in May 1993 indicate a past medical history of seizure disorder since childhood, with some other records referring to a head injury at age 5 or 6 as the incipient cause, whereas the Veteran has also reported initial treatment of seizures/blackouts in service.) 5. After receipt of any additional medical records, obtain an addendum advisory opinion from the July 2021 provider (or another appropriate clinician, if that provider is unavailable), to determine the nature and etiology of the Veteran's current (since the July 2007 filing of his claim) psychiatric disability, including PTSD and generalized anxiety disorder. If another in-person examination of the Veteran is necessary to address the inquiry, it should be arranged. The examiner should: (a). Identify by diagnosis each psychiatric disability found or shown by the record during the pendency of the appeal (from the filing of the claim in July 2007 to the present); (b). Regarding each psychiatric disability entity diagnosed, opine whether it is at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran's honorable period of service from November 14, 1969 to April 13, 1971; and In providing an opinion, the examiner is also asked to comment, as appropriate, on (a) any relevant service personnel records including those pertaining to his military discharge and period of AWOL (including the Veteran's contemporaneous explanation for his AWOL, notably that familial problems required his immediate attention); and (b) service treatment records showing no health complaints or psychiatric problems on an October 1973 separation examination and report of medical history. (Notably, the "marker" evidence cited in the July 2021 report was not, at that time, substantiated by the evidence in the file. That is, there is no evidence that the Veteran was treated for injuries sustained in military sexual trauma, that he began to drink alcohol heavily following the alleged incident, that he and his girlfriend broke up following the incident, that he became socially isolative following the incident, or that he reported the incident to his leadership.) The examiner must explain the rationale for all opinions, citing to relevant evidence, supporting factual data and medical principle and texts ot treatises, as deemed appropriate. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.