Citation Nr: 21029918 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 20-30 272 DATE: May 17, 2021 ORDER New and material evidence having been received, the previously denied claim of service connection for a non-epileptic seizure disorder is reopened. REMANDED Entitlement to service connection for non-epileptic seizure disorder (previously denied as conversion reaction) is remanded. Entitlement to service connection for Parkinson's disease is remanded. FINDINGS OF FACT 1. In a February 1962 rating decision, service connection for a conversion reaction was denied. 2. Evidence received since the February 1962 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a non-epileptic seizure disorder and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The unappealed February 1962 rating decision that denied service connection for a conversion disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence having been received, the claim of service connection for a non-epileptic seizure disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1954 to August 1957. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for Parkinson's Disease and reopened and denied the issue of service connection for non-epileptic seizure disorder. The Veteran's notice of disagreement (NOD) was received in August 2017. The RO issued the statement of the case (SOC) in February 2020, and the Veteran's VA Form 9, substantive appeal was received in September 2020. Although not received within the 60-day window following the February 2020 SOC, the Veteran provided good cause for the delay. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (the timeliness of a substantive appeal may be waived for good cause because the 60-day period for filing a substantive appeal is not a jurisdictional bar to the Board's adjudication of a matter). In March 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. New and Material Evidence Although an unappealed rating decision becomes final, a previously denied claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). 1. Whether new and material evidence has been received to reopen the claim of service connection for a non-epileptic seizure disorder. The Veteran seeks service connection for a non-epileptic seizure disorder (claimed as seizures) which he contends began during active service following a motor-vehicle accident (MVA). His claim of service connection for chills and perspiration (characterized by the RO as conversion disorder) was previously denied by the RO in February 1962. The Veteran submitted an NOD and the RO issued an SOC denying service connection for seizures as result of an injury in service. He did not subsequently file a substantive appeal to the Board or submit any new and material evidence during the relevant appeal period. The February 1962 decision, therefore, became final. The Veteran's claim to reopen was received in March 2017. The evidence of record at the time of the February 1962 RO decision included the Veteran's service treatment records, a January 1962 VA examination and a private emergency room note, dated in June 1961, showing that the Veteran was experiencing chills, shaking, and low back pain. The RO determined that service connection for a conversion reaction was not warranted as there was no relationship to active service. Evidence added to the record since the final February 1962 RO decision, includes, inter alia, VA treatment records dated from 2004 to 2021 showing a history of intermittent treatment for symptoms associated with a seizure disorder; a June 2017 VA negative nexus opinion, a September 2020 lay statement from the Veteran wherein he states that has experienced seizures every six weeks since the documented MVA in service and a March 2021 Board hearing transcript wherein the Veteran testified that he has experienced seizures since the MVA in active service and has not had them his entire lifetime, as stated in the June 2017 VA medical opinion. The additional evidence added to the record is new and material evidence as it was not previously of record when the prior decision was made, and it relates to an unestablished fact necessary to substantiate the claim of service connection. The additional evidence triggers VA's duty to assist as additional development must be undertaken to determine whether the diagnosed non-epileptic seizure disorder is related to the documented in-service MVA and/or is the same disorder that the Veteran experienced during service. Thus, it is considered new and material evidence, and the claim is reopened. See Shade, supra. REASONS FOR REMAND 1. Entitlement to service connection for non-epileptic seizure disorder (previously denied as conversion reaction) is remanded. 2. Entitlement to service connection for Parkinson's disease is remanded. The Veteran seeks service connection for a non-epileptic seizure disorder and Parkinson's disease. He contends that he first developed a seizure disorder following a documented MVA during service and that he has experienced seizures approximately every six weeks since. In April 2017, the Veteran underwent VA examinations for his claim. With respect to the Veteran's non-epileptic seizure disorder, the VA examiner stated that "the Veteran has reported and experienced his shaking spells throughout his lifetime, they have not interfered with his work, and evaluations in 1962 and 2017 indicate they are non-epileptic events." With respect to Parkinson's disease, the VA examiner found that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. For rationale, the examiner noted that the Veteran may have experienced transitory loss of consciousness related to a MVA in 1956 but stated that the risk of Parkinson's disease in association with traumatic brain injury increases with multiple concussive events or knock outs. The examiner stated that one isolated traumatic brain injury event would not be causative of Parkinson's disease. The examiner concluded by stating that it is medically unlikely that the Veteran's possible mild traumatic brain injury in 1956 caused the Veteran's recent diagnosis of Parkinson's disease. An addendum VA medical opinion was obtained in June 2017. Regarding a non-epileptic seizure disorder, the VA examiner found that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran's shaking spells associated with panic, as described in the April 2017 VA examination, have been diagnosed as a conversion disorder, a psychiatric diagnosis, and are medically unlikely to have been caused or contributed by the Veteran's MVA with associated head injury while in the military. The examiner again stated that "the Veteran has reported and experienced his shaking spells throughout his lifetime, they have not interfered with his work, and evaluations in 1962 and 2017 indicate they are non-epileptic events." The April 2017 and June 2017 VA medical opinions are inadequate to adjudicate the claim. The opinions are incomplete to the extent that they did not provide a rationale for the finding that the Veteran's current non-epileptic seizure disorder and Parkinson's disease were not incurred in service. The rationale for the opinions appeared to only focus on whether the documented in-service MVA caused the Veteran's currently diagnosed disabilities. Moreover, the opinions failed to adequately address the Veteran's lay reports of experiencing the same symptoms since service or reconcile the finding of the April 2017 VA examiner that the Veteran's current non-epileptic seizure disorder is the same as the diagnosis of conversion disorder that he received in 1962, only five years following separation or the June 1962 VA discharge note indicating a diagnosis of "convulsive disorder, centrocephalic epilepsy and psychomotor seizures, etiology undetermined." Additionally, the opinions are incomplete to the extent that they do not provide a definite timeline for when the Veteran developed his seizure disorder or Parkinson's disease symptoms. The opinions state that "the Veteran has reported and experienced his shaking spells throughout his lifetime," but the Veteran has consistently stated that his seizures began during active service and no such symptoms or disorder were noted on entrance into service. Moreover, the Veteran's STRs document that he first began experiencing "shaking chills" immediately following the MVA in service and denied experiencing any such symptoms prior. See October 1956 hospital discharge note. While a September 1962 neuropsychology examination found that the Veteran's convulsive disorder was a result of neurotic migraines which existed prior to service, the April and June 2017 medical opinions did not explicitly make a finding, supported by rationale, that the Veteran's seizure disorder clearly and unmistakably pre-existed service. Moreover, the Veteran's reports of in-service onset are inconsistent with the September 1962 medical findings and an opinion is necessary to reconcile this conflicting evidence. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a neurologist, if possible, to determine the current nature and likely etiology of any seizure disorder and any Parkinsonism or Parkinson's Disease. The claims file, including a copy of this remand, must be available to the examiner for review, and the examiner should indicate that the claims file was reviewed in connection with providing the opinion. The examiner is requested to offer an opinion as to the following: (a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's non-epileptic seizure disorder was incurred during service, or is otherwise etiologically related to disease or injury in service. (b) Whether it is at least as likely as not that the Veteran's Parkinson's disease and/or Parkinsonism was incurred in or is otherwise etiologically related to disease or injury in service. (c) If the examiner instead determines that the Veteran's seizure disorder or Parkinson's disease clearly and unmistakably existed prior to the Veteran's entrance into active duty, the examiner should opine as to whether either disability clearly and unmistakably did not undergo an increase in severity during service or, if there was an increase, whether it was due to the natural progression of the disease. In formulating the above opinions, the examiner must discuss (1) the symptoms documented in the Veteran's STRs (shaking chills, headaches, a questionable focal seizure, black out spells); (2) the Veteran's statements that he has experienced these symptoms since onset in service; (3) the November 1961 Harbor City Emergency Room note which indicates the Veteran reported experiencing shaking chills and almost passed out; (4) the June 1962 VA discharge note indicating a diagnosis of "convulsive disorder, centrocephalic epilepsy and psychomotor seizures, etiology undetermined;" and (5) VA treatment records indicating that the Veteran had a Grand Mal seizure in January 2017 and had 3 pseudoseizures during hospitalization in 2018. The examiner is also directed to review the March 2021 Board hearing transcript for specific details from the Veteran regarding the history of his symptoms. In this regard, the examiner is asked to reconcile the findings in the STRs with the Veteran's testimony, particularly with regard to in-service onset. The VA examiner is requested to provide a full rationale for all conclusions reached. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.