Citation Nr: 22018940 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-16 479 DATE: March 30, 2022 ORDER The previously denied claim of entitlement to service connection for a seizure disorder is reopened; to this limited extent, the appeal of that issue is granted. REMANDED Entitlement to service connection for a seizure disorder is remanded. FINDINGS OF FACT 1. In a final May 2011 decision, the Board of Veterans' Appeals (Board) denied the Veteran's claim for service connection for a seizure disorder. 2. The evidence received since the time of the May 2011 Board decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim for service connection for a seizure disorder and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2011 Board decision that denied the Veteran's claim of entitlement to service connection for a seizure disorder is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim for service connection for a seizure disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1972 to January 1974. This matter comes to the Board on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of the appeal, the RO found that new and material evidence had been received to reopen the Veteran's claim. See statement of the case (SOC) dated in March 2015. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a seizure disorder. The Veteran seeks to reopen his previously denied claim for service connection for a seizure disorder. He contends that he has a seizure disorder that can be attributed to an episode of in-service head trauma. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board previously denied the Veteran's claim in May 2011, finding that the greater weight of the evidence was against a finding that he had a seizure disorder that was incurred in or aggravated during military service. The Veteran did not appeal that decision to the United States Court of Appeals for Veteran Claims (Court) and has not requested reconsideration. As such, the May 2011 Board decision remains final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Generally, a claim that has been denied in a final Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The presentation of new arguments based on evidence previously of record does not constitute the submission of new evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). Here, the evidence received since the May 2011 Board decision includes a May 2011 private medical opinion finding a nexus between the Veteran's seizure disorder and service; additional post-service treatment records; and the Veteran's testimony as to the etiology of his seizures at an October 2021 Board hearing. Additionally, the Veteran was afforded a VA examination in February 2015 for traumatic brain injury, which resulted in a medical opinion pertaining to the etiology of his seizures. The evidence above, particularly the May 2011 private medical opinion, relates to a previously unestablished fact necessary to substantiate the claim (i.e., a nexus to service) and, presuming its credibility for new and material evidence purposes, raises a reasonable possibility of substantiating the claim. Thus, the evidence is both new and material. The claim for service connection for a seizure disorder is reopened. REASONS FOR REMAND Entitlement to service connection for a seizure disorder is remanded. The Veteran seeks to establish service connection for a seizure disorder. Having reopened the claim, the Board finds that further development is warranted. The record reflects that there are outstanding VA and private medical records potentially relevant to the claim on appeal. First, during the October 2021 Board hearing, the Veteran testified that he had received relevant treatment from a Dr. Y. At present, the claims file contains a letter, but no clinical records, from that provider. As the clinical records could have a bearing on the outcome of the Veteran's claim, a remand to obtain them is warranted. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Furthermore, the Veteran testified to receiving continuing treatment at the VA Community-Based Outpatient Clinic in Sebring, Florida. The Board observes that the most recent VA treatment records that have been associated with the Veteran's claims file are dated in September 2013. As there appear to be outstanding VA treatment records in VA's constructive possession, the claim must be remanded in order to obtain and associate the records with the Veteran's claims file. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board also finds that a remand is necessary to obtain a VA examination and medical opinion as to the etiology of the Veteran's seizure disorder. As noted, a private physician provided a favorable nexus opinion in May 2011. The physician opined that there was a likely relationship between the Veteran's in-service injury and his seizure disorder. The physician stated there was a history of blackout spells following the injury which may represent partial seizures. The physician further indicated that two motorcycle accidents after service were of such trivial nature that he doubted any relationship to seizures. Conversely, a February 2015 VA examiner offer an unfavorable opinion. The examiner noted the 1972 in-service head trauma, evidence of rapid improvement, and that the remaining service treatment records were silent for any traumatic brain injury residuals (i.e., seizures and headaches) until 1999. The examiner further noted that the Veteran was involved in a number of automobile/motorcycle accidents and bar fights after service. Radiological studies were consistent with trauma to the nasal area, likely from fighting. The examiner concluded that a post-service motor vehicle accident or bar fight was more likely than the in-service head trauma to be the cause of the seizures. Given the stark contrast between the two competing medical opinions, and the fact that additional evidence has since been added to the record, and that further evidence is being sought, the Board finds that another medical opinion, based on all procured and procurable data, would be of significance assistance in resolving the Veteran's appeal. This matter is REMANDED for the following action: 1. Ask the Veteran to provide a release for relevant records of treatment from Dr. Y., and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination with respect to his seizure disorder. Due to the complexity of the case, the examination should be performed by a neurologist. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's seizure disorder had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider the Veteran's October 2021 hearing testimony as to the nature and etiology of his seizure disorder. The examiner should also consider and discuss Dr. E.D.'s May 2011 etiological opinion and the February 2015 VA medical opinion. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental SOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.