Citation Nr: 0002043 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 97-23 560A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a seizure disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from April 11, 1945, to November 29, 1945. Due to time lost under Army Regulation 107, 180 days of that service was not credited as honorable service. The veteran's total length of honorable service was calculated by the service department as 1 month, 19 days. By rating decision of March 1946, the RO denied service connection for a psychosis with a convulsive disorder. The veteran was notified of that rating decision and did not appeal. Following the receipt of additional contentions from the veteran, the issue was reviewed and the denial was confirmed and continued by an August 1946 rating decision. The veteran was notified of the decision and did not appeal. As such, the rating decision became final. This case now comes before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision in which the RO found that new and material evidence had not been submitted to reopen a claim of service connection for a seizure disorder. By rating decision of April 1997, the RO denied service connection for residuals of a head injury. While the RO considered the veteran's contentions regarding a head injury as a new claim, the Board finds that it was, in fact, a contention pertaining to the request to reopen the previously denied claim for a seizure disorder. As such, the Board has construed the veteran's contentions regarding residuals of a head injury to be an indistinguishable part of his claim to reopen the prior final decision which denied service connection for a seizure disorder. The veteran appeared for an RO hearing in June 1998. In July 1999, the veteran appeared and testified at the RO before the undersigned member of the Board. Complete transcripts of the testimony from both hearings are of record. FINDINGS OF FACT 1. In March 1946 and August 1946, the RO denied service connection for a seizure disorder characterized as a psychosis with convulsive disorder. The veteran did not file a timely appeal and the rating decisions became final. 2. New and material evidence which is relevant and probative has been associated with the claims folder since the last final RO rating decision in August 1946. CONCLUSION OF LAW New and material evidence to reopen a claim of service connection for a seizure disorder has been presented. 38 U.S.C.A. §§ 1110, 5107, 5108, (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence 38 C.F.R. § 3.156(a) provides, in pertinent part, that there must be added to the record new and material evidence which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. The United States Court of Appeals for Veterans Claims (Court) has held that, once a denial of service connection has become final, the claim cannot subsequently be reopened unless new and material evidence has been presented. In a recent decision, the Court held that the decision of the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (which overruled the legal test previously used to determine the "materiality" element of the new and material evidence test) now requires a three-step process for reopening claims. Elkins v. West, 12 Vet. App. 209 (1999). Under the new Elkins test, VA must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the VA must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well-grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well- grounded, the VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. 38 C.F.R. § 3.156(a) (1999) provides that "new and material evidence" is evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. The Board is required to review all of the evidence submitted by an appellant since the last final denial of a claim on any basis, to include decisions by the RO or the Board which had refused, after having considered newly presented evidence, to reopen a previously disallowed claim because of a lack of new and material evidence. Evans v. Brown, 9 Vet. App. 273 (1996). At the time of the last prior final decision in August 1946, the RO denied service connection for a seizure disorder on the basis that such disorder pre-existed service and was not aggravated by service. Using the guidelines articulated above, the Board has reviewed the additional evidence which has been associated with the claims folder since the August 1946 RO decision. A report of a social and industrial survey in March 1948 was received. The veteran's mother denied any record of epilepsy in the family. Since his discharge from service, the veteran had not been able to work for more than a day or two at a time due to frequent seizures. He was noted to be difficult to control, biting anyone who tried to care for him. The veteran was reported to be known by the local probation department, and charity and welfare organizations. The veteran had been encouraged to seek medication care but reported that doctors did not understand his illness. The veteran indicated that he lived in constant fear of having seizures, but did not seek any medication attention. VA outpatient treatment records reflect a history of treatment and medication for a seizure disorder since at least 1959 based on a traumatic head injury in 1945. By letter dated in February 1996, [redacted], the veteran's cousin, indicated that the veteran had never had any recognizable symptoms of a health problem. Mr. [redacted] indicated that he had known the veteran his entire life and his health problems began when he was in the military. On VA examination in October 1996, the veteran reported that he was struck in the head with a rifle butt during service and knocked unconscious. He was hospitalized and remained unconscious or poorly responsive for ten days. After his head injury, the veteran indicated that he suffered a grand mal seizure for the first time; he denied any history of seizures prior to that time. He has taken medication for seizures since then with good control. In 1994, the veteran stopped taking medication for his seizures and had experienced 1-2 seizures per year for the last several years. The diagnostic impression included a history of grand mal seizure disorder with history of recurrent grand mal seizures 1-2 times yearly, the last being in April 1996. At a June 1998 RO hearing, the veteran testified that he sustained head injury in service when he was hit in the head with a rifle butt during a fight in the stockade. He maintains that he woke up in the hospital eleven days later and did not know anything that had happened after he was hit in the head. Prior to his period of service, the veteran indicated that he had been sent to the Preston School of Industry, a reformatory, for stealing a car. The veteran indicated that he did not experience any seizures during his time at the reformatory or at any time prior to service. Reference was made to the letter from the Preston School of Industry which indicated that the veteran did not have exhibit any epileptoid characteristics or symptoms during his time there. (That letter is of record in the claims folder.) The veteran denied the statements in his service records which noted a history of seizures from the age of six. He testified that he did not say any such thing to any medical personnel in service. He denied any history of head injury prior to the incident in service. The veteran indicated that he last had a seizure two months prior to the date of the hearing. He said that he was currently taking seizure medication consisting of five pills each day. At his July 1999 hearing at the RO before the undersigned member of the Board, the veteran indicated that he was hit in the back of the head with a rifle butt by a fellow serviceman in service. The veteran woke up eleven days later in Hammond General Hospital in Modesta. He does not remember what happened but said that he has been told he had been receiving shock treatment and medication for grand mal seizures since being hit by the rifle butt. Thereafter, the veteran said that he was discharged and sent home. He was seen by a Navy doctor who came to his house every month to check on him. He continues to take medication for a seizure disorder to the present time. The veteran testified that he did not know why his service medical records contained such a detailed history of a pre-service seizure disorder because he did not have any problems until the incident in service as described. The veteran specifically indicated that prior to his entry into service, he did not have any seizures; his mother had told him of two episodes in which he passed out. The veteran testified that he had not had a seizure every 2-3 months and has taken medication for seizures since 1960. From the time of his discharge in 1945 until he went on medication in 1960, the veteran was having up to 4 seizures a day. He did not receive any medical care for the first ten years after service unless he was picked up by an ambulance and treated at the hospital for seizures. There are multiple lay statements in the claims folder confirming the veteran's report that he did not experience any type of seizures prior to his period of military service. Based on a longitudinal review of all evidence received since the August 1945 RO decision, including the veteran's hearing testimony in June 1998 and July 1999, the Board finds that new and material evidence has been presented to reopen the veteran's claim for service connection for a seizure disorder. As such, the veteran's claim is reopened. Justus v. Principi, 3 Vet. App. 510 (1992). ORDER New and material evidence to reopen the claim for service connection for a seizure disorder has been submitted. Accordingly, to this extent, the appeal is allowed. REMAND Inasmuch as new and material evidence has been submitted to reopen the claim for entitlement to service connection for a seizure disorder, the Board must now consider whether the veteran has presented a well-grounded claim based on a de novo review of the evidence of record. See Elkins, supra. As noted above, service connection has been denied on the basis that the seizure disorder clearly and unmistakably pre- existed service, thereby rebutting the presumption of soundness at entry, and was not aggravated therein. However, prior to adjudicating this issue, there is another, inextricably intertwined issue which must be addressed; only if it is resolved in the veteran's favor, should the RO proceed to consideration of whether the claim for service connection is well-grounded. As stated above, while the veteran's service spanned a period from April 11, 1945 to November 29, 1945, a period of approximately 7 1/2 months, 180 days, or about 6 months of that period was not credited as honorable service. The veteran's total length of honorable service was only 1 month, 19 days. According to the Certificate of Disability for Discharge, the seizure disorder (then characterized as psychosis, epileptic clouded states, manifested by repeated convulsions) was not incurred in authorized military activity and not in line of duty. While all the veteran's service records are not available, evidence contained in the claims folder reflects the following chronology: Shortly after entering service, the veteran was absent without leave (AWOL) for a period of 14 days. He received a summary court martial, and was restricted to base. He had another 14 day period of AWOL, during which he, and another individual, stole a car. He received a general court martial and was sentenced to 5 years of hard labor at Turlock Rehabilitation Center, described in the records as a prison facility. During the evening of August 19, 1945, he began demonstrating symptoms described as an "acute maniacal outburst." On August 20, 1945 he was transferred to Hammond General Hospital. After treatment there for a few months, a Board of Medical Officers met on November 2, 1945. It was recommended that he be discharged on Certificate of Disability for Discharge, which occurred later that month, on the basis of epileptic psychosis, considered to have existed prior to service and not aggravated therein. It was specifically noted that the disorder was not incurred in "line of duty," and not incurred during authorized military activity. Of record is a copy of a November 16, 1945 document from Army Services Forces, Headquarters Ninth Service Command which states: So much of the sentence published in General Court-Martial Orders No. 835, this Headquarters, dated 3 July 1945, the case of General Prisoner [veteran's name and former rank] now in confinement at Hammond General Hospital, Modesto, California, as remains unexecuted 21 November 1945, is remitted and soldier will be restored to duty. It appears clear that the manifestations appeared during a time (in August 1945) when the veteran was confined as a result of the sentence imposed due his general court martial. The record as currently constituted raises the issue of whether the seizure disorder was incurred in or aggravated in "line of duty" or manifested (to encompass both incurrence and aggravation of preexisting condition) during a period of "active service." See 38 U.S.C.A. § 105 (West 1991); 38 C.F.R. §§ 3.1, 3.15, 3.301(a), 3.303(1999). Since this matter has not been addressed by the RO, it must first be decided whether the veteran would be prejudiced in any way by its consideration by the Board. The factors to be considered include whether the claimant has been given adequate notice of the need to submit evidence or argument on the underlying claim, an opportunity to submit such evidence or argument and an opportunity to address the issue at a hearing. Bernard v. Brown, 4 Vet. App. 384(1993). In the case at hand, the veteran would be prejudiced by consideration of the underlying claim. In the event it were to be determined that the seizure disorder was not manifested in the line of duty, during a period of active service, the law would be dispositive of the case, mandating a denial of the claim. Sabonis v. Brown, 6 Vet. App. 426 (1994). Thus there would be no need to reach the issue of whether the veteran's claim was well-grounded. Accordingly a REMAND is necessary to allow consideration of this matter, assemble any existing administrative service records, and permit the veteran to offer argument and/or evidence. In the event favorable resolution of this issue results, the RO should then proceed to consideration of whether the claim for service connection is well-grounded. To this end, any additional VA treatment records should be procured prior to such determination. (The veteran has been followed for a seizure disorder at the VA Medical Center (VAMC) in Sacramento, California since at least 1996.) If, and only if, the veteran is found to have submitted a well-grounded claim, then additional development of the evidence should be undertaken. In this regard, in conjunction with his claim to reopen in July 1996, and in a subsequent statement received in October 1997, the veteran identified fifteen separate medical facilities where he has received treatment for his claimed seizure disorder since service. In order of treatment and dating from his discharge from service in 1945, the veteran identified the following facilities and dates of treatment: Stockton County Hospital in French Camp, California (1946); Fresno County Hospital in Fresno, California; Bakersfield County Hospital in Bakersfield, California; Salem State Prison Hospital in Salem, Oregon (1957-1959); Folsom State Prison Hospital in Folsom, California (1966-1969); Los Angeles Prison Hospital in Los Angeles, California (1964-1965); Woodside Hospital in Sacramento, California; Rogers County Hospital in Claremore, Oklahoma; American Riv. Hospital in Sacramento, California; Sacramento County Hospital in Sacramento, California; Sacramento Community Hospital in Sacramento, California; Sutter Memorial Hospital in Sacramento, California; Mercy Hospital in Sacramento, California; Mercy General Hospital in Sacramento, California; and Hood River Hospital in Hood River, Oregon. None of the veteran's medical records pertaining to treatment of his seizure disorder have been obtained from any of these facilities for placement in the claims folder. The Board notes, however, that the veteran has identified these facilities for the purpose of establishing treatment for a seizure disorder subsequent to his discharge from service in 1945; there is no contention that any physician at any of these facilities has linked the veteran's seizure disorder which was treated at a particular facility to the seizures experienced by the veteran in service. The case is REMANDED to the RO for the following actions: 1. The RO should attempt to obtain, through official sources, the veteran's service personnel records, to include all documents pertaining to his general court martial in July 1945. All dates of creditable service should be identified, if possible. In the event there are any documents pertaining to the finding on the Certificate of Disability for Discharge that the veteran's seizure disorder was not in "line of duty," those documents should be secured as well. 2. After these records, and any other deemed pertinent to this matter by the RO, are assembled, the RO should adjudicate whether the claimed disability occurred in line of duty, during a period of active service. In the event this determination is unfavorable to the veteran, he and his representative should be fully apprised, and be given the opportunity to submit evidence and argument, both written and oral, if desired. All necessary due process is to be afforded the veteran. 3. In the event the determination requested above is favorable to the veteran, consideration should be given to whether he has presented a well-grounded claim. If it is determined that he has not, he and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for appellate action. 4. In the event the claim for service connection for a seizure disorder is found to be well-grounded, the RO should take the appropriate steps to contact the veteran and determine whether he has received any additional treatment for a seizure disorder since April 1998, the date of the most recent VA treatment records currently in the claims folder. The RO should also ask the veteran to identify which of the health care providers (including those facilities identified in the July 1996 and October 1997 statements of the veteran as having treated the veteran for seizures and are listed in the body of the remand above), if any, may have linked his current seizure disorder to service. Based on his responses and with proper authorizations, the RO should obtain all medical records from the identified source(s) and associate them with the claims folder. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that the requested development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 6. The RO should then review the record and the claim of entitlement to service connection for a seizure disorder should be readjudicated on the merits. See Elkins, supra. If the determination remains adverse to the veteran, both the appellant and his representative should be provided with a supplemental statement of the case. The veteran and his representative should be given the opportunity to respond within the applicable time. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for further development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. N.R. ROBIN Member, Board of Veterans' Appeals