Citation Nr: 1522068 Decision Date: 05/22/15 Archive Date: 06/01/15 DOCKET NO. 09-04 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from January 1981 to March 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran requested a BVA hearing in Washington, DC in his February 2009 VA-Form 9 Appeal to the Board of Veterans' Appeals. The Board scheduled the requested hearing to take place in June 2012, and informed the Veteran by an April 2012 letter of the hearing. He failed to report for the hearing without good cause. Hence, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2011). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA has a duty to assist a claimant in the development of a claim. Unfortunately, a remand is necessary to obtain medical opinions. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159. (2014). Seizure Disorder Pursuant to the Board's November 2012 remand, VA afforded the Veteran an examination for his claimed seizure condition in March 2013. Ultimately, the examiner concluded that it was less likely than not the Veteran's seizure activity was related to military service. As rationale, the examiner noted that the Veteran needed multiple hospitalizations in 1996 for a seizure disorder. He also pointed to 1997 records that attributed a seizure disorder to alcoholism. Last, the examiner noted that the Veteran stopped taking Dilantin in 1997, then resorting to alcohol for medication, which started the seizure activity. The Board finds this opinion inadequate. During the clinical interview with the Veteran at that same examination, the Veteran had reported receiving treatment for seizures "as early as [the] late 1980's." The Veteran also explained that he had suffered "multiple episodes of seizure disorder" since the military. These reports are corroborated by private treatment notes from April 2006 that document the Veteran telling his treating physician that his first seizure had occurred when he was about 28 to 29 years old. His stated age at the time of this visit was 43 years old. This places the onset of the Veteran's seizure disorder well before the reported 1996 onset date used by the March 2013 examiner in rendering his opinion. Hence, the March 2013 examiner relied on inaccurate facts and is inadequate. Also, in providing a requested opinion, an examiner must acknowledge and discuss the Veteran's lay statements regarding the onset or aggravation of symptoms during service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). A new opinion is necessary that addresses the Veteran's lay statements and the medical evidence showing earlier symptomatology. Acquired Psychiatric Disorder Also in March 2013, VA afforded the Veteran a mental health examination. Upon reviewing the claims file and conducting a clinical interview with the Veteran, the examiner provided diagnoses of PTSD, polysubstance dependence in sustained remission, and attention deficit hyperactivity disorder (ADHD). The examiner opined that the Veteran's PTSD "was not due to or because of his military service and was not altered nor made worse beyond its natural course by the Veteran's military service." Similarly, the examiner also opined that the Veteran's polysubstance dependence began before his military service and that it was "at least as likely as not due to or because of his traumatic experiences as a youth growing up in the West part of South Central Los Angeles in the 1970's." With regard to ADHD, the examiner opined that the Veteran "most likely" had ADHD as a child, with features remaining with the Veteran presently. These opinions are inadequate for adjudication purposes. At the outset, the Board notes that a psychiatric condition was not noted on the Veteran's examination at entrance into service. In this regard, every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is one for service connection rather than compensation based on aggravation. Wagner. The March 2013 opinion used an improper evidentiary standard. Rebutting the presumption of soundness requires proving by clear and unmistakable evidence that the disability preexisted service and that the preexisting disability was not aggravated by service. The examiner's statements were either conclusory or used the "at least as likely as not" standard, which is not sufficient for this inquiry. On remand, the examiner should provide an opinion for the Veteran's claim for service connection for an acquired psychiatric disorder that corresponds to the criteria for rebutting the presumption of soundness. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is scheduled for appropriate VA examination for his seizure disorder claim. The claims file should be made available to the examiner for review of the case, and the examination report should include a discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. All necessary tests and studies should be performed, and the examiner should review such results prior to completing the report. The examiner should identify any and all seizure disorders the Veteran has had at any time since he filed his claim in November 2006. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed seizure disorder had onset during the Veteran's active service or was caused by his active service. Specifically, in his opinion, the examiner is asked to address the Veteran's assertions made during the clinical interview in the March 2013 VA examination and made during a private treatment visit in April 2006, that he first began to have seizures shortly after or at the time of separation from service in 1987. Essentially, in addition to the medical history, all conclusions and rationales should take into consideration the Veteran's assertions regarding his symptoms prior to, during, and after service. A complete rationale should be given for all opinions and conclusions expressed. 2. Arrange for the same examiner who conducted the March 2013 mental health examination, if possible, to provide an addendum opinion that fully addresses the questions below. If the examiner is unavailable, the file should be referred to another similarly qualified medical professional. The claims file should be made available to the examiner for review of the case, and the examination report should include a discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. All necessary tests and studies should be performed, and the examiner should review such results prior to completing the report. The examiner should indicate whether there is clear and unmistakable evidence that any diagnosed acquired psychiatric disorder, specifically PTSD, preexisted service. (i) If there is clear and unmistakable evidence that the disorder preexisted service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the preexisting disorder was not permanently worsened during service beyond the natural progression of the disorder. (ii) If there was an increase in the severity of the Veteran's psychiatric disorder during service, the examiner should opine as to whether such an increase was clearly and unmistakably not due to the natural progress of the disease. In addition to the medical history, all conclusions and rationales should take into consideration the Veteran's assertions regarding his symptoms prior to, during, and after service. The examiner should note that "clear and unmistakable evidence" means that the evidence cannot be misinterpreted and misunderstood, i.e. is undebatable. A complete rationale should be given for all opinions and conclusions expressed. 3. Then, readjudicate the claims on appeal. If the benefits sought are not granted in full, provide the Veteran and his representative with a supplemental state of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board. 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 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals