Citation Nr: 21031773 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-12 462 DATE: May 24, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for grand mal epilepsy is granted. The application to reopen the previously denied claim of entitlement to service connection for migraine headaches is denied. REMANDED Entitlement to service connection for grand mal epilepsy is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for left shoulder impingement is remanded. Entitlement to service connection for right shoulder impingement is remanded. Entitlement to Chapter 35 Dependents' Educational Assistance (DEA) benefits is remanded. FINDINGS OF FACT 1. Newly obtained private medical records attribute the Veteran's grand mal epilepsy to an in-service head injury rather than to a preservice head injury. 2. Since the final June 1995 rating decision that denied service connection for migraine headaches no new evidence pertinent to the claim has been received. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for grand mal epilepsy. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for migraine headaches. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1993 to March 1995. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen a claim for service connection for grand mal epilepsy. The Veteran seeks service connection for grand mal epilepsy. The RO denied this claim in June 1995 and August 2013 rating decisions. The Veteran did not appeal the decisions. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (2018). Therefore, the prior denials of service connection for grand mal epilepsy are now final, and the Veteran's claim for service connection may only be reopened if new and material evidence is received. "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. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). When evaluating the materiality of newly-submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should consider whether such evidence, in its entirety, could at least trigger the duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 117. Moreover, when determining whether a claim should be reopened, the credibility of any newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The June 1995 final rating decision denied service connection on the basis that the Veteran's seizure disorder began prior to service and was not aggravated by service. On VA examination in July 2013 the VA examiner opined that the Veteran's epilepsy existed prior to service and showed no aggravation beyond its natural progression by military service. The August 2013 final rating decision confirmed the June 1995 denial. The evidence obtained since the final August 2013 rating decision includes a January 2017 private physician examination of the Veteran. The physician indicated that she thought that the Veteran's seizure disorder was due to an in-service head injury rather than due to a preservice head injury. Accordingly, new and material evidence has been received and the Veteran's request to reopen the claim for service connection for grand mal epilepsy is granted. 2. Whether new and material evidence has been received to reopen a claim for service connection for migraine headaches. The Veteran seeks service connection for migraine headaches. The RO denied this claim in a June 1995 rating decision. The Veteran did not appeal the decision. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (2018). Therefore, the prior denial of service connection for migraine headaches is now final, and the Veteran's claim may only be reopened if new and material evidence is received. The June 1995 final rating decision denied service connection on the basis that the Veteran's migraine headache disorder began prior to service and was not aggravated by service. The June 1995 decision was based on the Veteran's service treatment records (STRs) and a May 1995 VA examination report. The evidence obtained since the final June 1995 rating decision includes VA treatment records, private treatment records, and the Veteran's Social Security Administration (SSA) medical records. Although new to the Veteran's file, none of this evidence is material to the Veteran's claim. The newly obtained records are duplicative in that they confirm that the Veteran is treated for headaches. None of this evidence provides any indication that the Veteran did not experience headaches prior to service or any indication that the Veteran's pre-existing seizure disorder was aggravated by service. None of the new evidence provides any evidence that the Veteran's headache disorder is otherwise related to service. Accordingly, new and material evidence has not been received and the Veteran's request to reopen the claim for service connection for migraine headaches is denied. REASONS FOR REMAND 1. Entitlement to service connection for grand mal epilepsy is remanded. Since the evidence is unclear as to whether the Veteran's current seizure disorder is due to a head injury that preexisted service or due to an inservice head injury a specialist opinion should be obtained that reviews the conflicting medical opinions and opines whether the seizure disorder is due to an inservice injury or to a preservice injury. If the specialist opines that the Veteran's seizure disorder clearly and unmistakably preexisted service he/she should also express an opinion as to whether there was clear and unmistakable evidence that this disability did not undergo a permanent increase beyond natural progress of the disorder during service. 38 C.F.R. §§ 3.304, 3.306. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (in cases where the presumption of soundness applies, the burden is on VA to show clear and unmistakable evidence that the Veteran's disease or injury was both preexisting and not aggravated by service). 2. Entitlement to service connection for traumatic brain injury is remanded. The Veteran has raised the issue of entitlement to service connection for TBI. He has not indicated what symptoms he attributes to a TBI. As noted above, he is also seeking service connection for grand mal epilepsy which evidence indicates to be a residual of a TBI. Consequently, as the claim for service connection for grand mal epilepsy is being remanded, the claim for service connection for TBI must also be remanded. The Veteran should be asked to identify what residuals of a TBI he is seeking service connection for and a medical opinion should be obtained. 3. Entitlement to service connection for left shoulder impingement is remanded. 4. Entitlement to service connection for right shoulder impingement is remanded. The Veteran claims that his left and right shoulder impingement disability are secondary to his epilepsy disorder. In a November 2019 statement the Veteran reported that in 2011 he was working as a sales manager for a Rent-A-Center and that he had three seizures that led to hard falls. He said that he hurt both his shoulders. He asserted that he now has bilateral shoulder impingement and arthritis that are secondary to his epilepsy disorder because he injured his shoulders when his seizures caused him to fall on his shoulders. Due to the Veteran's claim for service connection for epilepsy being remanded by this decision, the left and right shoulder claims must also be remanded as they are inextricably intertwined with the claim for service connection for epilepsy. 5. Entitlement to Chapter 35 Dependents' Educational Assistance benefits is remanded. Eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating. Consequently, the claim for DEA benefits is inextricably intertwined with the other issues on appeal. Therefore, the claim for DEA benefits must be remanded pending the development and readjudication of the other claims on appeal. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Contact the Veteran and request that he specify what symptoms/disabilities he is claiming are residual of a TBI. 3. Request that a neurologist or other appropriate specialist review the claims file and provide the following opinions: a) whether the Veteran's grand mal epilepsy is at least as likely as not related to an inservice injury, event, or disease; b) whether grand mal epilepsy clearly and unmistakably (undebatable) preexisted the Veteran's service. If the specialist finds that it did clearly and unmistakably preexist service, the specialist must opine whether it was clearly and unmistakably aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service. In providing these opinions the specialist should discuss the pertinent evidence, including the January 2017 private physician opinion that the Veteran's seizure disorder is due to an in-service head injury rather than due to a preservice head injury. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The VA specialist above should also provide the following opinions: a) whether the Veteran has residuals of a traumatic brain injury that are at least as likely as not related to an inservice injury, event, or disease; b) whether the Veteran has residuals of a traumatic brain injury that clearly and unmistakably (undebatable) preexisted the Veteran's service. If the specialist finds that residuals of a TBI did clearly and unmistakably preexist service, the specialist must opine whether residuals of a TBI were clearly and unmistakably aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.