Citation Nr: 1139986 Decision Date: 10/27/11 Archive Date: 11/07/11 DOCKET NO. 03-00 167A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for service-connected seizure disorder, currently rated 10 percent disabling. 2. Entitlement to an effective date earlier than January 31, 2001, for the grant of service connection for seizure disorder. 3. Entitlement to an increased rating for service-connected major depressive disorder, secondary to service-connected seizure disorder, currently rated 10 percent disabling. 4. Entitlement to an effective date earlier than January 31, 2001, for the grant of service connection for major depressive disorder. 5. Entitlement to service connection for migraine headaches. 6. Entitlement to service connection for Meniere's disease. 7. Entitlement to service connection for hearing loss. 8. Entitlement to service connection for lymphedema. 9. Entitlement to service connection for a right wrist disability. 10. Entitlement to a rating of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John F. Cameron, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of a Regional Office of the Department of Veterans Affairs, which denied service connection for migraine headaches, Meniere's disease, hearing loss, lymphedema, a right wrist disability, and depression. The RO also denied entitlement to TDIU, and found no new and material evidence had been presented to reopen the Veteran's claim for service connection for a seizure disorder. The Board remanded the claim to the RO in May 2003 and August 2004 for further development. A hearing at the RO before the undersigned was conducted in September 2006. In a May 2007 decision, the Board granted the Veteran's petition to reopen the claim of service connection for seizure disorder, granted service connection for seizure disorder, and remanded the issues of entitlement to service connection for depression, skin disorder, migraine headaches, Meniere's disease, hearing loss, lymphedema, a right wrist disability, depression and TDIU. An August 2009 rating decision granted service connection for a seizure disorder, petit and grand mal, and major depressive disorder, and assigned 10 percent ratings for each, effective January 31, 2001. The Veteran timely appealed both for increased ratings and earlier effective dates of the two disabilities. The issues of entitlement to service connection for morbid obesity and osteoporosis have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of service connection for migraine headaches, Meniere's disease, hearing loss, lymphedema, a right wrist disability, TDIU, and increased ratings for service-connected seizure disorder and major depressive disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. Service connection for seizure disorder was denied in an October 1956 rating decision, a notice of disagreement was received, and no substantive appeal was received within the subsequent one-year period. That decision became final. 2. A September 1998 Board decision found that new and material evidence was not submitted to reopen the epilepsy claim. The Veteran appealed to the U. S. Court of Appeals for Veterans Claims (CAVC) which denied the Veteran's appeal in September 23, 1999. 3. The Veteran filed a request to reopen the claim for service connection for seizure disorder on January 31, 2001. In an August 2009 rating decision, service connection for seizure disorder, and major depressive disorder, as secondary to service-connected seizure disorder, was granted, effective January 31, 2001. 4. There is no communication from the Veteran from September 24, 1999, to January 30, 2001, that constitutes a formal or an informal claim to reopen the seizure disorder issue. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 31, 2001, for the grant of service connection for seizure disorder have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2011). 2. The criteria for an effective date prior to January 31, 2001, for the grant of service connection for major depressive disorder, as secondary to service-connected seizure disorder, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), No notice is necessary because, as is explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the Veteran's VA claims folder. An appellant claiming entitlement to an earlier effective date is not prejudiced by failure to provide notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. As will be discussed below, as a matter of law, the Veteran is not entitled to an effective date earlier than January 31, 2001. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (notice not required where there is no reasonable possibility that additional development will aid the claimant). Furthermore, general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103. The Veteran was provided with ample opportunity to submit evidence and argument in support of the claim; and was given the opportunity to present testimony regarding his claim. The Board finds there is no prejudice in adjudicating the appeal at this time. II. Analysis The St. Petersburg RO denied the claim for service connection for epilepsy in October 1956 on the basis that the Veteran's epilepsy existed prior to service and was not aggravated by service. The following evidence was considered in arriving at that decision. Service treatment records indicate that the Veteran had no physical disorders upon her entrance into active duty, according to a June 1953 entrance report of medical examination; her neurologic status was "normal." However, in February 1954, the veteran was treated for a neurological convulsion. A February 1954 clinical record cover sheet states that she was under observation for epilepsy, and it also indicates "yes" to the issue of whether the condition was a "line of duty" disorder. Subsequent outpatient records show that the Veteran had an episode of syncope, dizziness, headaches, and unconsciousness. The Veteran only remembered waking up in the hospital. A witness to the incident indicated that the veteran screamed, fell to the floor, appeared stiff all over, had her eyeballs rolled back, had tonic and clonic convulsions of both arms and legs, and had a chewing movement of the jaw; there was blood and some frothing of the mouth. Service hospitalization records noted no family history of epilepsy, but indicate that, according to a letter received from the veteran's mother, the Veteran was diagnosed with "petit mal" attacks in the 3rd grade, although an electroencephalogram (EEG) was negative at that time. Patient also gave history of petit mal epilepsy at age 10, according to the hospital records, but had had none since that time. A February 1954 EEG report indicates that there was evidence of epilepsy. It was noted that the Veteran had 3 other seizures during her 6 1/2-week hospitalization in service. It was also noted that she felt unwanted as a child, was very immature and emotionally unstable, and that, during hospitalization, she threatened to have seizures to try to get what she wanted. A March 1954 EEG again indicated evidence of epilepsy. She subsequently underwent Medical Board examination. The report of that examination, dated April 1954, reflects that the Veteran had a two-hour period of unconsciousness in February 1954, followed three days later by a witnessed grand mal seizure after being hospitalized. The report also indicates that the Veteran gave a history of petit mal epilepsy at around age 10, but with none since that time. The Veteran indicated that her seizures were psychogenic, caused by her separation from her spouse, also indicating that the seizures would resume if she was sent back to active duty. The diagnosis was "epilepsy, [not elsewhere classified], mixed type, petit mal, grand mal, and psychomotor seizures." It was reported that her disability existed prior to service and was not aggravated by service; the Veteran was discharged from service in April 1954. The VA social service report is dated May 1956. It reflects that, according to the veteran's mother, the veteran began having petit mal attacks, or "the stares," around the 2nd grade due to a "family crisis," which the mother preferred not to discuss. The mother worked as a registered nurse. The attacks consisted of the veteran being motionless, silent, and staring into space for 1 to 2 minutes. The attacks were daily or even several times per day. Although an EEG taken at that time was negative, the mother's own diagnosis was petit mal epilepsy. The attacks worsened in 3rd and 4th grade, during which time the mother discovered that the Veteran's teacher had isolated the Veteran for alleged misbehavior. The mother removed the Veteran from that school and placed her in a private school; within 6 weeks, the spells had disappeared and never recurred. As to the Veteran's current seizures, she had them in May through August 1954, December 1954, January 1955, and November 1955. The seizures were described as the Veteran screaming and then falling down, followed by a period of convulsive state with teeth clenched and thrashing on the floor. Upon regaining consciousness, the Veteran was confused and drowsy, with a loss of memory. The assessment was, among other things, that the Veteran was intelligent, but emotionally immature and that she had been raised by dominating, egotistical, and unloving parents. The VA examination report is dated September 1956. It indicates that the Veteran had not had a seizure for a year, and that she was still on medicine for her seizures and that she still had headaches, fainting spells, and "trouble with [her] nerves." Medical history provided in the report is essentially a summary of the findings included in the service medical records, discussed above. Mental status examination revealed no evidence of psychosis. Diagnosis was convulsive state, grand mal and petit mal. Although a notice of disagreement was received, no substantive appeal was received within the subsequent one-year period. The unappealed determination by the RO is final. Veterans Regulation No. 2(a), pt. II, par. III; Veterans Administration Regulations 1008 and 1009; (effective January 25, 1936, to December 31, 1957). A September 1998 Board decision found that new and material evidence was not submitted to reopen the epilepsy claim. The following evidence was considered in arriving at that decision. VA medical records from September to December 1968 indicate that the Veteran was admitted for an emotionally unstable personality and an alleged back problem. Medical history included a notation that she had had "epileptic spells" since 1953 or 1954 and had been taking medication for epilepsy since that time. Diagnosis was "emotionally unstable personality." A November 1968 record reflects that the neurologist did not think her EEG's substantiated a diagnosis of epilepsy and that said diagnosis should not be continued because such a diagnosis might be an employment liability. It stated that therapy should focus on psychotherapy, rather than drugs for epilepsy. A February 1997 private physician's letter indicates that the Veteran was diagnosed with a generalized seizure disorder and was on several medications for its control. In April 1997, the Veteran petitioned to reopen her claim for service connection for epilepsy. At the Veteran's October 1997 personal hearing, she testified that she mainly had petit mal seizures, because she is on medication for grand mal seizures. She indicated that she recently had a grand mal seizure during which she broke her arm. She indicated that her first convulsive seizure occurred during active duty in February 1954 and that she was hospitalized in service from February 1954 to April 1954. The Veteran admitted to some sort of nervous problem when she was a young child, but she denied ever having any convulsive seizures. She stated that she was never diagnosed with any type of seizure disorder prior to service. The Veteran filed an appeal of the September 1998 Board decision with the U. S. Court of Appeals for Veterans Claims on January 20, 1999. On March 1999, the Veteran requested VA compensation benefits. She contends that she did not have epilepsy prior to entrance into service, and noted that her entrance examination was normal. She noted that when she had an in-service epileptic seizure she fell, sustaining a blow to her head, resulting in paralysis of the left arm and leg and that military physicians were unable to determine the etiology of the paralysis. She noted that her seizures were contained until 1994. However, she maintains that the in-service blow to the head caused her hearing loss, which was diagnosed as Meniere's disease, and migraine headaches. The Veteran also stated that the in-service fall caused her to become morbidly obese which caused clinical depression, osteoporosis, and lymphedema. She states that the osteoporosis resulted in her fracturing her right wrist in a fall during a seizure. In a September 23, 1999, order, the Court denied the Veteran's appeal due to lack of jurisdiction. On January 31, 2001, the Veteran again requested service connection for epilepsy and depression. The Veteran submitted a letter from Boyd Bailey, M.D., dated in September 2006, which stated that the Veteran "sustained a fall in service . . . causing head injury with loss of consciousness and immediate sequelae of seizures which have persisted life long." The Board found this evidence to be both new and material as it includes a competent previously unconsidered medical opinion that the Veteran's seizure disorder first became manifest in service, reopened the claim, and granted service connection for a seizure disorder, and remanded the depression issue to the RO for further development and adjudication. Based on a positive nexus opinion from a VA examiner, an August 2009 rating decision granted service connection for major depressive disorder, as secondary to the service-connected seizure disorder, and effectuated the Board's grant of service connection for seizure disorder, effective January 31, 2011, the date the Veteran requested service connection for the disabilities. The effective date of an award based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(r). In the case of claims submitted for disorders secondary to already service connected disabilities, the assigned effective date does not relate back to the filing date of the antecedent disability. (Emphasis added). Instead, direct and secondary service connection claims should be treated in the same manner. Therefore, the effective date for a secondary service connection claim is based solely on the date it is received by the VA. See Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). In determining the effective date of award, the Board is required to look to all communications in the file which may be construed as a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable. Quarles v. Derwinski, 3. Vet. App. 129, 134 (1992). The Veteran's attorney does not point out any such communication. The Veteran's March 1999 correspondence cannot be considered an attempt to reopen the claim of service connection for seizure disorder because her appeal to the Court regarding the Board's September 1998 denial was still active in March 1999. Therefore, the earliest date for entitlement to service connection for seizure disorder is the date she applied for the benefit, January 31, 2011. Since service connection for major depressive disorder was granted as secondary to service-connected seizure disorder, the effective date can be no earlier than the date service connection was established for the primary disability, January 31, 2011. The attorney in written argument dated in May 2011, stated that the Veteran provided the VA missing service treatment records after January 31, 2001, these records formed part of the basis for the grant of service connection for the disabilities, and therefore, she is entitled to an earlier effective date. Notwithstanding the foregoing regulations regarding effective dates, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of 38 C.F.R. § 3.156. Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156(c)(1). Records that are not included are records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3) . However, 38 C.F.R. § 3.156(c) was amended with a "clarifying statement." 70 Fed. Reg. 35,388 (proposed June 20, 2005) (codified at 38 C.F.R. pt 3.). The "clarifying statement" notes that: 'An award based all or in part on the records identified by ... this section is effective on the date entitlement arose or the date VA received the previously decided claim.' New and Material Evidence, 70 Fed. Reg. at 35,389 (quoting the proposed § 3.156(c)). Moreover, by way of specific example, the Secretary notes that when an initial claim is denied because of a lack of evidence of an in-service injury, but is later granted based in part on subsequently acquired service records establishing the in-service injury and new medical evidence showing a nexus between a current disability and that in-service injury, the claimant is entitled to a retroactive evaluation of the disability to assess a proper effective date which would be the date of the original claim or the date entitlement otherwise arose, whichever is later. Id. In this sense, the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted. See id. Vigil v. Peake, 22 Vet. App. 63, 66 (2008). This exception to the general rule is not applicable to this case, as the Veteran's claims file has contained service treatment records regarding the inservice fall and subsequent unconsciousness and seizures since the original denial in October 1956. Service connection was eventually granted based on new evidence that the Veteran did not have a seizure disorder prior to service and that the inservice fall was the cause of the Veteran's current seizure disorder. Therefore, entitlement to earlier effective dates are denied. The preponderance of the evidence is against the claims; and there is no doubt to be resolved. ORDER Entitlement to an effective date earlier than January 31, 2001, for service connection for seizure disorder is denied. Entitlement to an effective date earlier than January 31, 2001, for service connection for major depressive disorder is denied. REMAND The VA duty to assist includes the conduct of VA examinations where the record does not adequately reveal the current state of the claimant's disability. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) citing Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The attorney claims that the Veteran's seizure disorder and major depressive disorder has greatly increased in severity since the last VA examination. The Veteran should be afforded another VA examination for each disability. When rating seizure disorders, rating specialists must bear in mind that the epileptic, although his or her seizures are controlled, may find employment and rehabilitation difficult of attainment due to employer reluctance to the hiring of the epileptic. Where a case is encountered with a definite history of unemployment, full and complete development should be undertaken to ascertain whether the epilepsy is the determining factor in the inability to obtain employment. The assent of the claimant should first be obtained for permission to conduct this economic and social survey. The purpose of this survey is to secure all the relevant facts and data necessary to permit of a true judgment as to the reason for his unemployment and should include information as to: (a) Education; (b) Occupations prior and subsequent to service; (c) Places of employment and reasons for termination; (d) Wages received; and (e) Number of seizures. Upon completion of this survey and current examination, the case should have rating board consideration. Where in the judgment of the rating board the Veteran's unemployability is due to epilepsy and jurisdiction is not vested in that body by reason of schedular evaluations, the case should be submitted to the Director, Compensation and Pension Service. 38 C.F.R. §4.124a, Diagnostic Code 8914, Epilepsy and Employability. Service connection for migraine headaches, Meniere's disease, hearing loss, lymphedema, a right wrist disability, and TDIU were denied in an August 2009 supplemental statement of the case (SSOC). In written argument received in May 2011, the Veteran's attorney, in part, stated that he never received any post Board remand decision from the RO regarding entitlement to service connection for migraine headaches, Meniere's disease, hearing loss, lymphedema, a right wrist disability, and TDIU. The principles of administrative regularity dictate a presumption that government officials have properly discharged their official duties. Saylock v. Derwinski, 3 Vet. App. 394 (1992). The appellant's address of record was correctly typed onto the August 2009 letter, the attorney was listed as another recipient, and that letter was not returned by the Postal Service as undeliverable. The attorney therefore must be presumed to have received it. The law requires only that the VA mail a notice, and then presumes the regularity of the administrative process in the absence of clear evidence to the contrary. Chute v. Derwinski, 1 Vet. App. 352 (1991). However, the attorney has consistently, immediately submitted written disagreement and argument with every RO decision rendered since the Board's last remand. These prompt replies, the absence of any disagreement or written argument regarding the August 2009 SSOC, and the attorney's statement of nonreceipt of the SSOC is the type of clear evidence to the contrary which is sufficient to rebut the presumption of regularity. Mindenhall v. Brown, 7 Vet. App. 271 (1994). Therefore, the attorney and the Veteran should be provided another copy of the August 2009 SSOC and an opportunity to respond. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a neurologic-psychiatric examination to determine the nature and extent of her current symptoms due to her service-connected epilepsy and major depressive disorder. 2. Send the Veteran and her attorney copy of the August 2009 SSOC denying entitlement to service connection for migraine headaches, Meniere's disease, hearing loss, lymphedema, a right wrist disability, and TDIU and give them time to respond. 3. Readjudicate the service connection claims and the increased rating claims, and then readjudicate the TDIU claim, to include consideration of referral to the Director, Compensation and Pension Service. If any claim continues to be denied, send the Veteran and her attorney a supplemental statement of the case and give them time to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs