92 Decision Citation: BVA 92-26982 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-52 673 ) DATE ) ) ) Sitting at New Orleans, Louisiana THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for Gilles de la Tourette's syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. L. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from December 1972 to November 1973. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from rating decisions of the New Orleans, Louisiana, Regional Office (hereinafter RO). In an April 1990 decision, the Board denied the veteran's claim of entitlement to service connection for Tourette's syndrome. In this April 1990 decision, the Board noted that service connection for conversion reaction had been denied in a January 1976 rating decision. The Board also noted that the veteran first specifically claimed benefits for Tourette's syndrome in June 1980 and later clarified that he was seeking service connection by reason of aggravation of the preservice disability. The Board pointed out that in an October 1987 confirmed rating decision, the RO determined that a new factual basis not previously considered to establish service connection for Tourette's syndrome had not been presented. The Board noted that the veteran had most recently reopened his claim to establish service connection for Tourette's syndrome in November 1988. The Board then proceeded to give de novo consideration to the veteran's claim. This appeal arises from the veteran's recent request, received by the RO in 1991, to reopen his claim of entitlement to service connection for Tourette's syndrome on the basis of aggravation. In a January 1991 rating decision, the RO declined to reopen the veteran's claim with respect to this benefit. The notice of disagreement was received in February 1991. The statement of the case was issued in March 1991. The substantive appeal was received in April 1991. A second substantive appeal was received in May 1991. A hearing was held in December 1991 in New Orleans, Louisiana before J.U. Johnson, who is a member of the Board section rendering the final determination in this claim and was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991). Subsequently, the case was transferred to the Board, and received and docketed in January 1992. The veteran has been represented throughout this appeal by Disabled American Veterans. It appears that the veteran is attempting to raise the issue of service connection for chronic fatigue syndrome. This issue has not been developed or certified for current appellate review. It is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the documentary and testimonial evidence presented since the Board last considered the issue of service connection for Tourette's syndrome in 1990 is both new and material. He argues that his Tourette's syndrome was misdiagnosed in service and that he was improperly prescribed medication which permanently worsened his preexisting Tourette's syndrome. He asserts that he was able to pass his written and physical examinations prior to entrance, basic training and technical training and was able to perform the duties of his military occupational specialty until he was placed on medication. He asserts that he only had mild symptomatology prior to service and that the stress associated with active duty also increased the symptomatology associated with this preexisting disease. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been presented with which to reopen the veteran's claim of entitlement to service connection for Gilles de la Tourette's syndrome. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. In April 1990, the Board denied the veteran's claim of entitlement to service connection for Tourette's syndrome. 3. Additional evidence submitted since 1990, is essentially redundant and cummulative, not relevant and probative, and does not present a reasonable possibility that it would change the outcome of the previous decision when considered in the context of all the evidence of record. CONCLUSION OF LAW Evidence received since the April 1990 Board decision which denied entitlement to service connection for Tourette's syndrome is not new and material and, thus, is insufficient to reopen the veteran's claim of entitlement to that benefit. 38 U.S.C.A. §§ 1153, 5107, 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 3.306(a)(b) (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, we have found that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). We are also satisfied that all relevant facts have been properly developed and that the Department of Veterans Affairs (hereinafter VA) has fulfilled its duty to assist the veteran in the development of his claim in accordance with the provisions of § 5107(a). If new and material evidence has been presented or secured with respect to a claim which has been disallowed, the claim may be reopened and the former disposition reviewed. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). Once a determination has been made that the recently submitted evidence is new and material, the claim is reopened, and a determination must be made whether the disability at issue was incurred in or aggravated by active military service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a)(b). The evidence which was of record in the case when the Board considered it in 1990 may be summarized. This evidence reflects that no pertinent medical history or defects were noted on service enlistment examination in December 1972. These records indicate that the veteran was seen in February 1973, a few months after entrance into service, with a complaint of a possible pinched nerve of the neck. At the time, the veteran gave a history of a nervous tic or twitch of the head. The diagnostic impression included an old cervical nerve injury and a nervous tic. In May 1973, the veteran was seen with complaints of neck pain. A history of nervous tic with neck pain was given and noted to have been treated in the past. In June 1973, the veteran received a neurology clinic consultation. At the time, he reported that he had had a jerking or shaking motion of his head since a bicycle accident in 1967. He indicated that the symptomatology had persisted until the present time and that over the past 6 to 7 years it had increased in severity. He indicated that the jerking or shaking motion would become more exaggerated when he was under tension or was anxious. Following examination, a neurologist concluded that the veteran had dyskinesia which was restricted to the neck and facial muscles. There was some suspicion that it was a familial disorder with a history of the difficulty in an uncle and possibly some difficulty with his father. The examiner could not rule out that it was just a habit or a tic. A trial of Haldol was indicated, one 2 milligram tablet per day for one week with the dosage slowly increased up to a total of 6 milligrams if necessary. The veteran was felt to be retrainable and qualified for worldwide duty. Subsequently, the veteran received a psychiatric consultation that same month. The history of marked facial/cervical tic was again related to a bicycle accident at the age of 11. It was noted that the veteran had seen numerous psychiatrists for various habit spasms (leg jerk, grimace, and vocal spasm like a stutter), presumably before service, since service medical records do not indicate any treatment by service psychiatrists for all of these symptoms. At the time, the veteran was noted to be only moderately distressed by symptomatology. He apparently wanted the Air Force to "fix" the disorder. Haldol was continued. On further psychiatric consultation in June 1973, the veteran appeared relaxed and his tic was markedly improved on the morning of the examination. He was following the prescribed regimen and was felt to be reliable for proper compliance with the Haldol regimen. The veteran was returned to duty with an S1 physical profile. The examiner indicated that the disorder did exist prior to service but was aggravated therein. The examiner indicated that if the dosage of Haldol was increased to 4 or 6 milligrams per day, then it was recommended that Artane be prescribed to prevent oculogyria. A note from the outpatient mental health clinic indicated that the veteran was to be referred back to the Air Force base for continuing supportive psychotherapy. It was noted that his tic was well controlled on 2 milligrams of Haldol per day. Subsequently, the veteran was seen in the emergency room in July 1973 with a complaint that his neck had locked as a result of his nervous twitch. The veteran was prescribed Valium. The veteran subsequently presented to the psychiatry clinic in August 1973. He was given Haldol and Artane and was to be seen again in two weeks. In September 1973, the veteran reported having had a "nervous breakdown" the past weekend. An increase in his nervous tic was noted. Haldol and Artane were both continued. Subsequently, the veteran was examined for a service department medical board proceeding in September 1973. It was noted that there had been a further increase in severity of symptomatology related to his condition. The veteran reported that the jerking or shaking motion of his head was particularly prominent when he was anxious or preoccupied, but could occur at any time. Although the veteran had been referred for medical attention in June 1973 to a medical center, it was noted that since his return he had had continuing difficulty with spasms of the neck and face. There was marked anxiety which he related to ongoing family difficulties. The veteran had continued his use of Haldol intermittently, but had noted marked drowsiness on occasion and had discontinued it at that time. His work function as a medical orderly was reportedly impaired both by his symptoms and by his preoccupation with a family situation unrelated to service. The diagnoses included musculoskeletal disorder of presumably psychogenic origin (psychogenic torticollis). Despite a trial of two months of medication, the symptoms were reportedly not under satisfactory control and had progressed to the point where they were seriously interfering with his ability to work. A subsequent Medical Board report of October 1973 indicated that the disability was considered to have existed prior to service and was not permanently aggravated thereby. Additional evidence considered by the Board in 1990, included several statements from private physicians dated from September to December 1978 which finally provided the correct diagnosis of Gilles de la Tourette's syndrome. Significantly, the Board also considered a report of a VA examination in December 1978. The examiner reviewed copies of the veteran's military medical records and all of the evidence of record associated with this case. The examiner concluded that the veteran's Tourette's syndrome existed prior to service, was not aggravated by service, and in fact, had been appropriately treated by military physicians with Haldol, the treatment recommended by the veteran's own specialist at the time, a private physician. It was noted that the veteran had again been prescribed Haldol by his private physician. Reports of subsequent inpatient and outpatient examinations by the VA and private examiners indicated that the veteran continued to receive treatment for Tourette's syndrome, including treatment with Haldol. The Board also considered a copy of a December 1976 newspaper article, a copy of a May 1983 Board of Veterans' Appeals decision allowing service connection for Tourette's syndrome for another veteran, various medical articles concerning Tourette's syndrome and treatment with Haldol, and a copy of a May 1984 decision of a Social Security Administration administrative law judge. The Board noted that the report of the administrative law judge indicated that a board certified psychiatrist and neurologist had testified that Tourette's syndrome was a paroxysmal disorder which never completely disappeared and which age did not slow. Additional articles considered at the time were consistent with that conclusion and the fact that Haldol was the medication of choice for this disability. The veteran also appeared at a regional office hearing in January 1989 and presented testimony indicating that his condition had gotten worse since 1978. He indicated that physicians were currently experimenting and changing his medications. He again reiterated his contention that his Tourette's syndrome, which he conceded had preexisted service, had been aggravated in service and therefore service connection was warranted. He indicated that Haldol had aggravated his condition. He attributed his medical discharge to increased symptomatology due to Haldol. Based on this extensive documentary and testimonial evidence of record, the Board concluded that the veteran's Tourette's syndrome was clearly of preservice origin and that the presumption of soundness at enlistment was clearly rebutted. Additionally, the Board indicated that the record showed no particular hardship or unusual stress relating to the veteran's military duties. His active service was noted to be of less than one year's duration. Although, by the very nature of Tourette's syndrome, progression over time could be anticipated, it was the judgment of the Board at the time that the advancement of the disorder beyond the normal progression during service was not demonstrated, and therefore, aggravation was not conceded. Additionally, the Board found that treatment of the disorder in service with Haldol not only did not aggravate the disorder, but was the proper method of treatment for what was later diagnosed as Tourette's syndrome. In connection with the current claim, the veteran has submitted a National Institute of Health article on Tourette's syndrome, a Center for Disease Control article on chronic fatigue immune deficiency syndrome, copies of the 1989 Physicians' Desk Reference on Haldol, and has provided testimony before a member of the Board in December 1991. While we have given careful consideration to this recently received documentary and testimonial evidence, we find that the evidence is essentially redundant and cumulative. We find that the testimony presented by the veteran at the Board hearing in New Orleans, Louisiana, consists of the assertions and contentions previously considered by the Board in its previous decision. Additionally, the article on Tourette's syndrome and the information regarding the side effects of Haldol were all factors and information which were considered in the April 1990 Board decision. The articles on chronic fatigue syndrome were presumably submitted in connection with another pending claim. Essentially, the veteran testified that the Haldol made the movements associated with his Tourette's syndrome which had existed prior to service more severe. He indicated that he began to experience parkinsonism and several other side effects of Haldol in service. He indicated that his Tourette's syndrome had been relatively mild prior to treatment with Haldol and testified that evidence of this could be found in the fact that he was able to hold down a full-time job, go to school, pass his physical for the Air Force, pass basic training, pass his examinations and receive his first stripe. Additionally, he indicated that his Tourette's syndrome worsened with the stress experienced in the military service. He stated that he did not know he had Tourette's syndrome until 4 or 5 years after service and concluded that even without Haldol, the symptomatology was much worse than that experienced by him when he went into service. In determining whether the evidence is new and material, several medical principles must be considered. Pertinent medical literature indicates that Tourette's syndrome is a condition which normally has it onset in childhood. Current Medical Diagnosis and Treatment 1992 751 (1992) [hereinafter referred to as Current Medical Diagnosis]; 2 Harrison's Principles of Internal Medicine 2069 (12th ed 1991) [hereinafter referred to as Harrison]. Additionally, it is noted that it is a condition which may be aggravated by stress. The course of the illness is often noted to be unpredictable. The condition abates or progresses in various cases, often leading to serious disability. The repertoire of tics and severity change over time. The disorder is chronic and may be punctuated by relapses and remissions. Current Diagnosis 973 (R. Conn 1991) [hereinafter referred to as Conn]; Harrison, supra, at 2069; American Medical Association's Drug Evaluations Annual 1991 351 (1991) [hereinafter referred to as Drug Evaluations]; Current Medical Diagnosis, supra, at 751. The disorder is characterized by multiple motor and phonic tics and a variety of behavioral manifestations. 2 Cecil, Textbook of Medicine 2137 (19th ed. 1992) [hereinafter referred to as Cecil]; Current Medical Diagnosis, supra, at 751. Essentially, Tourette's syndrome is often misdiagnosed, as in the veteran's case. Cecil, supra, at 2137; Current Medical Diagnosis, supra, at 751. He clearly had what was later diagnosed as Tourette's syndrome prior to service. The question presented is whether the evidence recently considered is new and material, and provides a reasonable possibility of changing the previous outcome when considered with all the evidence of record, old and new. The questions that must be asked include whether this evidence tends to show that the underlying pathology of the veteran's preexisting Tourette's syndrome underwent a permanent increase in service; and whether this evidence goes to the question of what effect the medication prescribed in service and the claimed service-related stress had on this disorder. We do not find that the recently submitted evidence meets the criteria necessary to reopen the veteran's claim. As noted above, his testimony concerning his assertions in this case is essentially cumulative and was considered by the Board in 1990. Additionally, it is clear that pertinent medical literature indicates that treatment with Haldol, or the chemical haloperidol, is a common and usual treatment for symptomatology associated with Tourette's syndrome. Current Medical Diagnosis, supra, at 751; Harrison, supra, at 2069; Cecil, supra, at 2137; Drug Evaluations, supra, at 239, 351; Physicians' Desk Reference 1374 (46th ed. 1992); J. DiPalma & G. Digregorio, Basic Pharmacology in Medicine 262 (3d ed. 1990). While stress can increase the frequency and severity of tics, there is no indication that the veteran was under such stress, other than outside family difficulties, which would have produced a permanent aggravation of the veteran's preexisting disease. It is readily apparent that Tourette's syndrome is a disorder characterized by relapses and remissions. Additionally, the recently submitted evidence does not indicate that the side effects of Haldol experienced by the veteran were permanent in nature or affected the basic pathology of the underlying disease. Clearly, medical literature indicates that Haldol has serious side effects, including some which are irreversible. Physicians' Desk Reference, supra, at 1374. However, the recent evidence considered does not indicate that the veteran's disorder increased in severity while on the Haldol, but the medical record of evidence at the time indicates that the 2 milligrams per day Haldol used over two months did not alleviate the symptomatology of Tourette's syndrome. Moreover, permanent side effects from the use of this drug, including tardive dyskinesia, a disabling movement disorder which is usually irreversible, is unusual. The low incidence is usually due to low doses used to treat patients with Tourette's syndrome, and is commonly seen only after long-term therapy, none of which the veteran had while on active duty. Conn, supra, at 974; Cecil, supra, at 2137. Although a shorter frame and lower dosage may produce serious side effects, the record indicates that the major difficulty the veteran had with the Haldol in service was that of drowsiness. See Physicians' Desk Reference, supra, at 1374. While the recently submitted evidence when considered with all the evidence of record does indicate that the veteran experienced an exacerbation of symptomatology associated with his preexisting Tourette's syndrome, we are unable to conclude that, based on this evidence, with consideration of sound medical principles, an increase in the basic and underlying pathology of the disorder occurred in service. The most common side effects of Haldol include dysphoria, parkinsonism and akathisia, none of which are documented in the veteran's service medical records. We are of the opinion that the totality of the evidence indicates that the veteran's Tourette's syndrome began in childhood after a bicycle accident at the age of 11, as he reported in service, or perhaps at the age of 4 or 6, as is reported in medical records subsequent to service. The evidence indicates that it began with simple tics and progressed to multiple complex movements as a natural progression of the disease. See The Merck Manual of Diagnosis and Therapy 1419 (15th ed. 1987). Essentially, we find that the recently submitted evidence basically presents facts and contentions that were previously considered by the Board in 1990, none of which were found to be so probative as to grant the benefits sought on appeal. We find the recently submitted evidence essentially to be cumulative and redundant and, accordingly, we are unable to reopen the veteran's claim on the basis of new and material evidence. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for Gilles de la Tourette's syndrome, the benefit sought on appeal is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 M. SABULSKY HARRY M. McALLISTER, M.D. J. U. JOHNSON NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.