Citation Nr: 1640706 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 10-18 493A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date earlier than March 12, 2008, for the award of service connection for dry eyes due to decreased blink rate secondary to olivopontocerebellar syndrome. 2. Entitlement to an effective date earlier than April 22, 2008, for the award of service connection for seizure disorder associated with Behcet's meningoencephalitis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from July 1977 to December 1986. In a May 2000 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, determined that the Veteran was incompetent to handle disbursement of funds for VA purposes. The Veteran's spouse is submitting statements and evidence on behalf of the Veteran and has been designated as the Veteran's fiduciary. She is the claimant/appellant for purposes of the claims addressed in this decision. See June 2000 VA Form 21-555, Certificate of Legal Capacity to Receive and Disburse Disability Benefits in Virtual VA. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. After the appeals addressed in this decision were remanded in 2014, claims unrelated to this appeal were addressed. Other issues were addressed and decided, these are currently the only issues properly before the Board. In July 2000, the appellant appointed the representative listed on the title page of this decision. In February 2006, the appellant appointed a private attorney, with no limitation. The appointment form noted that all prior appointments were revoked. Next, a March 2006 appointment signed by the appellant limited the appointment of the private attorney to the specific issues addressed in a November 2005 Remand. An April 2006 Report of Contact issued to the private attorney appointed in March 2006 and to the representative listed on the title page of this decision set forth the issues included in the private attorney's appointment. The issues addressed in this decision are not among the issues for which the private attorney represented the appellant. The July 2000 appointment of the representative listed on the title page of this decision is valid as to the claims addressed in this decision. The Veteran's claims folder, which is now wholly electronic, includes paperless documents on the Virtual VA and on Veterans Benefits Management System (VBMS) electronic systems. FINDINGS OF FACT 1. A specific claim for service connection for dry eye syndrome, as secondary to service-connected Behcet's syndrome, was received by VA on March 12, 2008. No prior claim for this disorder is of record. 2. A specific claim for service connection for seizures as secondary to service-connected Behcet's disease was received by VA on April 22, 2008. No prior claim for this disorder is of record. 3. The initial total (100 percent) rating for Behcet's disease was issued in August 2004, and became final one year later, in the absence of disagreement with inclusion of seizures in the disability rating. 4. No formal or informal claim for an award of a separate grant of service connection or for a separate rating for seizure disability or for dry eye syndrome as a disability separate from the disabilities for which service connection was in effect was pending and unadjudicated when the appellant submitted new claims for service connection of those disabilities in March 2008 and April 2008. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 12, 2008, for the award of service connection for disability manifested by dry eyes, claimed as secondary to decreased blink rate, secondary to Behcet's meningoencephalitis, are not met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400, 3.816 (2015). 2. The criteria for an effective date prior to April 22, 2008, for the award of service connection for seizure disability, claimed as secondary to Behcet's meningoencephalitis, are not met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400, 3.816 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that claims for service connection for a seizure disorder as secondary to and separate from Behcet's meningoencephalitis, and for disability manifested by dry eyes, secondary to decreased blink rate, as separate from Behcet's meningoencephalitis, were submitted but not addressed prior to March 12, 2008 and April 22, 2008. She contends that claims for awards of separate service connection for those disabilities should have been inferred from the record or from communications such as Notices of Disagreement submitted prior to 2008. She contends in particular that she is entitled to payment of retroactive benefits because the unadjudicated claims for service connection for dry eyes and/or for seizures arose prior to the effective date of the grant of TDIU (February 21, 1999) or of service connection for Behcet's meningoencephalitis (effective June 22, 2000). Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 and 5103A, and implementing regulations, codified at 38 C.F.R. § 3.159, provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. The provisions require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence that is necessary to substantiate the claim. The appellant has appealed the downstream issue of the proper effective date for assignment of the initial grants of service connection for seizure disability and for dry eye disability. The purpose of notice is to assist a claimant to substantiate a claim. In this case, substantiation of the claims for service connection was completed when service connection was awarded. The purpose that the notice was intended to serve, that is, substantiation of the claims for service connection, was fulfilled. No additional notice as to a "downstream" issue such as the effective date assigned following a grant of service connection is required where the initial claim was substantiated. Dingess v. Nicholson, 20 Vet. App. 473, 490-91 (2006). No further notice requirement is applicable. In addition to the duty to notify a claimant, VA has a duty to assist the appellant to obtain records, and VA must provide medical examinations or obtain medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). In this case, service treatment records are associated with the claims files. Lengthy VA clinical records and several VA examination reports relevant to the issues on appeal are associated with the claims files. These issues has been Remanded twice so that identified clinical records could be sought, and the identified records have been obtained. In particular, the report of a February 19, 1999, record pertaining to epilepsy, inpatient treatment records from April 11, 1999, to April 15, 1999 (other than a discharge summary), and a July 21, 2000 report of an MRI of the brain are now associated with the record. There has been substantial compliance with the Board's Remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has reviewed the Virtual VA and VBMS electronic information databases, which together include more than 600 documents. The appellant has not made VA aware of any additional evidence that should be obtained in order to decide the appeal. In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. Governing law Unless specifically provided otherwise, the effective date of an award based on a claim for compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). However, if the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. See 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.400(p), 3.114(a). A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151 (2015). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1 (p); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. These provisions, in effect, distinguish between an original claim and a claim for increased rating, the latter of which may be initiated by a medical examination or hospitalization, under 38 C.F.R. § 3.157 (2015). When a claim is denied, and the claimant fails to timely appeal that decision by filing a notice of disagreement within the one-year period prescribed in 38 U.S.C.A. § 7105(b)(1), and a substantive appeal (VA Form 9 or equivalent statement) within 60 days of the SOC or within the remainder of the one-year period following notification of the decision in question, that decision becomes final and binding based on the evidence then of record and the claim may not thereafter be reopened or allowed, except upon the submission of new and material evidence or a showing that the prior final decision contained clear and unmistakable error (CUE). See 38 U.S.C.A. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.105, 20.200 (2012). The pending claims doctrine provides that a claim remains pending in the adjudication process, even for years, if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). If a valid NOD is filed, but VA fails to issue a SOC, then the claim remains pending. Myers v. Principi, 16 Vet. App. 228, 235-36 (2002); Tablazon v. Brown, 8 Vet. App. 359 (1995). Indeed, once an NOD has been filed, further RO decisions that do not grant the benefit sought do not resolve the pending claim. Juarez v. Peake, 21 Vet. App. 537, 543 (2008). Only a Board decision can resolve an appeal that was initiated but not completed. Id. Facts and analysis During service, the Veteran manifested a combination of uveitis of both eyes and a variety of neurologic abnormalities including impairment of intellectual function, palsy of the right eye, double vision looking to the right, slurred speech, ataxia, and abnormalities of coordination and use of the right arm and the lower extremities. A diagnosis of possible olivopontocerebellar atrophy or meningoencephalitis with uveitis (also called Behcet's meningoencephalitis), was assigned. His symptoms appeared to resolve, and he returned to duty after an inpatient hospitalization. The Veteran filed a claim for service connection for a "nervous condition" in 1988. Service connection for a history of olivopontocerebellar syndrome, resolved, evaluated as noncompensable, was granted. At VA examination conducted in February 1997, the Veteran complained of double vision, incontinence while asleep, headaches, and forgetfulness. The assigned diagnosis was adjustment disorder with chronic anxiety. The RO granted service connection for an adjustment disorder, and evaluated that disability as 30 percent disabling. See July 1997 Rating Decision. The examiner who conducted April 1997 VA examination opined that the Veteran's symptoms of tenseness, nervousness, incontinence, paranoia, headache, and visual complaints were consistent with the neurological disorder the Veteran manifested in service. The abnormalities in the Veteran's EEG and MRI of the brain were regarded as a consequence of the diffuse encephalitic component of the original illness. The examiner opined that the original illness was Behcet's disease or some other type of inflammatory disorder. The examiner stated that "Behcet's disease is associated with recurrent mouth and genital ulcers, uveitis, skin lesions, hyperirritability, and involvement of multiple joints, gastrointestinal tract, small blood vessels, and the central nervous system." The examiner noted that up to one third of patients with Behcet's disease present with meningoencephalitis, which may be associated with seizures, confusion, difficulty with swallowing and articulation, reflex abnormalities, cerebellar ataxia, ocular palsies, and increased intracranial pressure. Based on the April 1997 VA examination report, and a June 1997 update of that report, the RO assigned a 10 percent evaluation for the Veteran's neurologic symptoms, evaluated under Diagnostic Codes 8099 and 8000, and recharacterized the disability as olivopontocerebellar syndrome status post history of meningoencephalitis. See July 1997 Rating Decision. In particular, the Board notes that the April 1997 VA examination report stated that Behcet's syndrome could be manifested by a variety of symptoms, including seizures and uveitis. However, the examiner did not indicate that the Veteran manifested seizures or uveitis at the time of the April 1997 VA examination. No contention raised by the appellant or by the record in 1997 may be interpreted as a separate claim for service connection for seizures or for dry eye syndrome. The medical evidence and opinions of record at that time did not raise a formal or informal claim for a seizure disorder or a chronic eye disability at this time. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). No unadjudicated claim for a separate, compensable evaluation for service connection for seizure disorder or dry eye syndrome is found in the record as of 1997. The examiner who conducted VA neurologic examination in July 1998 concluded that the Veteran did not have seizures. A December 1998 private medical statement from the Veteran's former employer noted that the Veteran had myoclonic jerks of the upper extremities. In particular, myoclonic jerks are characterized by rhythmic contractions of muscle groups. In contrast, epileptic seizures generally involve alteration of consciousness and may involve motor, sensory, reflex, or vegetative functions. Stedman's Medical Dictionary 605, 1173 (27th ed. 2000). In a February 1998 notice of disagreement, the Veteran and the appellant expressed dissatisfaction with the evaluations assigned for neurologic and adjustment disorders. In June 1998, the appointed representative submitted an informal claim for increased anxiety with nervousness and sleep disturbances along with a claim for increase related to "symptomatology for his brain and spinal conditions." In December 1998, the representative alleged that the claim for an increased rating was well-grounded. In December 1998, the appellant requested that the RO allow the statements from the representative to serve as an appeal. The Board does not find that any allegation of entitlement to a separate grant of service connection for dry eyes or for a seizure disability or for a separate rating for those symptoms is raised. In January 1999, the appointed representative submitted a claim for service connection for hypertension. A provider who examined the Veteran in January 1999 indicated that possible diagnoses were myoclonus, depression, and seizure disorder, either due to epilepsy or an unknown etiology. In February 1999, the Veteran was thought to have had a seizure, and the Veteran was placed on anti-seizure medication. On February 19, 1999, an EEG (electroencephalogram), interpreted as "possibly abnormal" was conducted. Further testing was recommended. Findings of cerebral atrophy and olivopontocerebellar atrophy on a February 1999 MRI of the brain were noted. Generally speaking, the "mere presence" of a diagnosis of a specific disorder in a medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); (VA medical examination reports standing alone can constitute informal claim only with regard to claims that previously have been granted service connection); 38 C.F.R. § 3.155 (2015). The medical evidence in early February 1999 raised a possibility that the Veteran manifested seizures, but the evidence did not require VA to infer a claim for service connection for a seizure disorder separate from olivopontocerebellar syndrome or Behcet's meningoencephalitis. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Inpatient treatment records dated in April 1999, including the records obtained following March 2014 Board Remand, describe a variety of psychiatric and neuropsychiatric symptoms, including paranoia, depression, possible psychosis, and irritability, among other symptoms. MRI (magnetic resonance imaging) examination of the brain was conducted in July 2000. That diagnostic study was interpreted as showing generalized cerebellar atrophy. Thus, while the records dated in April 1999 and July 2000 reflect that the Veteran and his spouse reported that he had "seizures" reference a possible medical diagnosis of a seizure disability that the Veteran had seizures and reflect that the Veteran and his spouse reported that he had "seizures," but do not establish that that the appellant sought service connection for seizures as separate from in addition to the claim for an increased raised a contention that the Veteran's "seizures" were a separately-ratable manifestation of a service-connected disability. In a January 2000 rating decision, the Veteran was awarded benefits based on individual unemployability (a 100 percent schedular rating), based on the evidence that the Veteran's symptoms resulted in inability to find or retain employment. This rating was based on lay, employer statements, and statements submitted with respect to the Veteran's claim of unemployability. Neither the contentions nor employer statements or medical evidence included specific discussion of the effect on employability of either dry eyes or seizures. No inferred or specific claim for service connection for either disorder was raised. In 2002, the appellant sought evaluation of the Veteran's service-connected disability as an organic disability, separate from a psychosis. See, e.g., appellant's December 2002 correspondence to VA, requesting that the Veteran's service-connected psychosis be evaluated as an organic disability rather than a mental disability, without discussion of specific seizure or eye disabilities. Correspondence from the appellant's representative sought an increased evaluation for service-connected disabilities under Diagnostic Code 9210 (psychosis) or Diagnostic Code 8000 (encephalitis). See December 30, 2002 letter from representative. In March 2004, the appellant testified at a personal hearing before the RO. She reported that the Veteran would sleep with his eyes open, did not produce tears, and noted that a cream was prescribed to help the Veteran close his eyes. The appellant testified, "I guess that has something to do with the [service-connected] illness." The transcript does not reflect testimony about seizures, tremors, or episodes of loss of consciousness. No claim for separate service connection for dry eye disability or seizure disability was raised by or may be inferred from the hearing testimony. The Board notes that the March 2004 hearing addressed the effective date assigned for a 100 percent (total) evaluation for olivopontocerebellar syndrome, a claim for service connection for hypertension, and a claim for special monthly compensation (SMC). None of these issues remain on appeal. Nevertheless, the Board has considered whether an issue which thereafter remained unajudicated was raised at that hearing. No claim for separate service connection for dry eye disability or seizure disability, or claim which remains unadjudicated, was raised. In April 2005, the representative contended that the Veteran was entitled to service connection for "a sleep disorder as a separately ratable condition due to Behcet's disease," and service connection for hypertension as secondary to a psychotic disorder. See April 2005 VA Form 646. The appellant also sought service connection for loss of a creative organ and special monthly compensation (SMC) for that loss and for the need for aid and attendance. This statement did not include discussion of eye symptoms or episodes of tremor, spasm, or loss of consciousness. The clinical records throughout the appeal reflect that the Veteran has multiple manifestations of service-connected olivopontocerebellar syndrome and of Behcet's meningoencephalitis. Numerous neurologic impairments, increasing in severity over time, were described, including impairment of eye movements, decreased vocal volume, incontinence, hallucinations, disturbed dreams, decreased intellectual function, confusion, tremors, muscle spasms, seizures, diminished attention, impaired concentration and memory, among other manifestations. The Veteran was granted service connection for Behcet's meningoencephalitis by a rating issued in August 2004. The appellant disagreed that the 100 percent evaluation for that disability included disability due to headaches and hypertension, but raised no specific contention that other symptoms were separate disabilities or were separately ratable. The appellant disagreed with and appealed the initial effective date assigned for the 100 percent evaluation, but did not disagree with the total evaluation. The 100 percent evaluation became effective one year later, when the period for disagreement or appeal ended. No unadjudicated claim for service connection for any symptom discussed in the medical evidence, other than headaches The appellant's contentions, liberally construed, do not raise a claim that dry eye syndrome or seizures constituted a disability separate from service-connected olivopontocerebellar syndrome or Behcet's meningoencephalitis prior to the March 2008 and April 2008 formal claims. The preponderance of the evidence is against the appeal for an earlier effective date for either grant of service connection at issue. There is no basis for a more favorable outcome for the appeal. The appeal is denied. (CONTINUED ON NEXT PAGE) ORDER The claim for an effective date earlier than March 12, 2008, for the award of service connection for dry eyes due to decreased blink rate secondary to olivopontocerebellar syndrome is denied. The claim for an effective date earlier than April 22, 2008, for the award of service connection for seizure disorder associated with Behcet's meningoencephalitis is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs