Citation Nr: 21021762 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 04-43 301 DATE: April 13, 2021 ORDER New and material evidence having been received, entitlement to service connection for Guillain-Barre Syndrome is reopened. REMANDED Entitlement to service connection for Guillain-Barre Syndrome is remanded. Entitlement to service connection for an eye disability, to include cataracts, claimed as secondary to Guillain-Barre Syndrome, and under 38 U.S.C. § 1151 is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDING OF FACT Evidence received since the September 2013 Board decision is new and material regarding the issue of service connection for Guillain-Barre Syndrome, as it contains evidence not previously considered that has some tendency to establish a link between the current Guillain-Barre Syndrome and military service. CONCLUSION OF LAW 1. The Board's September 2013 decision that denied service connection for Guillain-Barre Syndrome is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1104. 2. The criteria for reopening the Veteran's previously denied claim of service connection for Guillain-Barre Syndrome have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1973 to June 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2016 (Guillain-Barre Syndrome and an eye disability), and January 2017 (TBI) rating decisions by the Department of Veterans Affairs (VA). The Veteran also has appeals for entitlement to service connection for hypertension, service connection for residuals of an upper respiratory infection/chronic obstructive pulmonary disease and a total disability rating based on individual unemployability that are not addressed in this decision as they require a panel decision. These issues will be the subject of a separate decision. Additionally, the Board notes the AOJ issued a rating decision December 2019 concerning an increased rating for residuals of a fracture of the right mandible with TMJ and service connection for sleep apnea. The Veteran timely filed a Form 10182 in August 2020 and requested the hearing lane. A February 2021 rating decision denied service connection for posttraumatic stress disorder. The Veteran timely filed a Form 10182 in March 2021 and requested the hearing lane As the Veteran’s claims for an increased rating for the residuals of a fracture of the right mandible with TMJ, service connection for sleep apnea and service connection for PTSD are adjudicated under the Appeals Modernization Act (AMA) framework, and are currently pending Board hearings, these claims must be the subject of a separate decision and will not be addressed below. During the Veteran’s December 2020 hearing the Veteran raised a claim that the cataract was due to treatment at VA. Specifically, the Veteran alleges under 38 U.S.C. § 1151, that treatment administered by the VA, including steroids prescribed for Guillain-Barre Syndrome resulted in the current eye disability, to include cataracts Claims for service connection are separate and distinct from claims for compensation under 38 U.S.C. § 1151. See Anderson v. Principi, 18 Vet. App. 371 (2004). As such, this issue is REFERRED to the AOJ for appropriate action. Finally, the Board notes that the Veteran’s representative filed a motion for an extension of time to submit additional evidence in February 1, 2021. This motion requested an additional 60 days, which would be April 1, 2021. Furthermore, the Board in this decision is reopening and remanding the claim for additional development and as such, any additional evidence the Veteran’s representative wishes to file may be submitted upon remand. The Board’s action should thus in no way be prejudicial to the Veteran. 1. New and Material Evidence. The Veteran contends the currently diagnosed Guillain-Barre Syndrome is the result of military service. The claim was denied in a June 2007 rating decision and then confirmed by a September 2013 Board decision which the Veteran did not appeal. If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision. 38 C.F.R. § 20.1104. If the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. VA may reopen and review a claim if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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). In November 2015, the Veteran filed to reopen the claim for entitlement to service connection for Guillain-Barre Syndrome. The claim was subsequently considered and denied in a March 2016 rating decision. The Veteran filed a timely notice of disagreement with the March 2016 rating decision and this appeal followed. Since the September 2013 Board decision, additional evidence has been received in the form of VA treatment records and lay evidence from the Veteran. The VA treatment records and testimony from the Veteran are new because they have not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, a basis to relate the current Guillain-Barre Syndrome to the Veteran's periods of active service and raises a reasonable possibility of substantiating the claims. Specifically, the Veteran has offered alternative theories of entitlement and a description of his current symptoms. Therefore, the Board finds that new and material evidence has been received to reopen service connection for Guillain-Barre Syndrome. When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim for service connection for Guillain-Barre Syndrome are met. REASONS FOR REMAND 1. Guillain-Barre Syndrome. The Veteran, through his representative, advances multiple theories of entitlement to service connection Guillain-Barre Syndrome. First, he asserts that the current Guillain-Barre Syndrome was caused by upper respiratory infections during service, or in the alternative, is the result of a flu shot administered during service. After review of the lay and medical evidence of record, the Board finds that a remand for a medical opinion is necessary. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, remand for VA examinations is necessary. 2. Eye Disability. The Veteran, through his representative, advances multiple theories of entitlement to service connection an eye disability, to include cataracts. First, he contends that the cataracts are secondary to his currently diagnosed Guillain-Barre Syndrome. As noted above, the Veteran also raised an issue under 38 U.S.C. § 1151 which is being referred for appropriate action. To the extent to which the Veteran claims his eye is secondary to the Guillain-Barre Syndrome, it is intertwined with the service connection claim for Guillain-Barre Syndrome which is being remanded. Furthermore, under the VCAA, VA is obliged to provide an examination when the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, an opinion on the etiology of the Veteran's eye disabilities, to include cataracts has not been obtained. As such, remand for VA examination is necessary. 3. Traumatic Brain Injury. The Veteran contends service connection is warranted for a traumatic brain injury. During his December 2020 Board hearing, the Veteran indicated that during service he was struck on the head and knocked unconscious by rations falling from an unstable pallet. In December 2016, the Veteran underwent a VA examination to determine the etiology of any TBI. The VA examiner indicated that the Veteran had no pathology to render a diagnosis of a TBI. However, given the Veteran’s testimony of an in-service injury and current residuals, a remand for a new examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The matters are REMANDED for the following action: 1. Associate all VA treatment records since February 2021 with the electronic claims file. 2. Obtain a medical opinion from a neurologist to determine the nature and etiology of the Veteran’s Guillain Barre Syndrome. If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary to address the question below. If necessary, conduct any appropriate clinical testing: The examiner must opine whether: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current Guillain Barre Syndrome is caused by an in-service injury or disease, to include in-service vaccinations? b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's Guillain Barre Syndrome (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? The examiner must comment on: 1. The Veteran’s in-service vaccinations. The examiner must specifically comment on the Influenza A/New Jersey (Swine Flu) vaccine the Veteran received in December 1976 and any other pertinent vaccinations he received, as well as, their relation, if any, to Guillain Barre Syndrome. 2. The treatise evidence on Guillain Barre Syndrome the Veteran has provided. 3. Any relation between in-service respiratory infections and the current Guillain Barre Syndrome. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain a medical opinion from an optometrist on the etiology of any current eye disabilities, including cataracts. The examiner selected must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary to address the question below. If necessary, conduct any appropriate clinical testing: The resulting medical report should specifically state that a review of the record was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current eye disability, to include cataracts, began during active service? b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current eye disability, to include cataracts, is caused or aggravated by Guillain Barre Syndrome? A complete rationale for all opinions is required. 4. Schedule the Veteran for a VA examination, to assess the etiology of any current Traumatic Brain Injury. The VA examiner should review the evidence associated with the record. All necessary tests and studies should be conducted. The examiner should provide the following opinions: (Continued on the next page)   Does the Veteran have a currently diagnosed Traumatic Brain Injury? If yes, is it as likely as not that this disability was incurred in or otherwise related to active military service? In rendering these opinions, the VA examiner is asked to specifically address the August 2010 TBI Signs and Symptoms Questionnaire. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.