Citation Nr: 18145308 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-12 753 DATE: October 26, 2018 ORDER Service connection for seizures is denied. REMANDED The claim for an initial increased rating in excess of 10 percent for ischemic heart disease is remanded. The claim for an initial compensable rating for residuals of hairy cell leukemia is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s seizures are related to his active service. CONCLUSION OF LAW The criteria for service connection for seizures have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Service Connection for Seizures Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). While the evidence of record indicates that the Veteran was first diagnosed with seizures in 1999, and that the Veteran is still taking seizure medication, there is no probative evidence of an in-service injury, illness or event; or any other evidence that may be related to his seizures. Service treatment records (STRs) lack any evidence of an illness, injury or event relating to seizures and/or its symptoms. There is no other evidence to show the occurrence of an in-service illness, injury or event relating to seizures. The Veteran has not asserted that he had seizures and/or manifested related symptoms during his time in active service. Further, he has not provided any other evidence of an in-service injury, illness or event, such as, for example, lay statements from fellow veterans or other witnesses about in-service occurrences of seizures or related symptoms. However he has submitted an August 2014 disability benefits questionnaire (DBQ) from his private physician, Dr. P.A.F. Nonetheless, the Board finds that this DBQ has no probative value on this issue because Dr. P.A.F. did not provide a nexus opinion on the etiology of the Veteran’s seizures. The Board acknowledges that the Veteran has not been afforded a VA examination for his seizures. However, given the fact that there is no evidence that the condition occurred in service, or that there is no indication that the Veteran’s seizures may be associated with his service, or another service-connected disability, the Board finds that a VA medical examination is not warranted under the duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim). Moreover, the Secretary is not obligated to grant a claim for benefits simply because there is no evidence disproving it. See 38 U.S.C. § 5107(a) (explaining that “a claimant has the responsibility to present and support a claim for benefits.”); Skoczen v. Shinseki, 564 F.3d 1319, 1323 – 29 (2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA.... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Therefore, the preponderance of the evidence is against this claim and service connection for seizures must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on these remaining issues on appeal. 1. Initial Increase Rating Claim for Ischemic Heart Disease The last time the Veteran underwent a VA examination for heart conditions to assess the current severity of his service-connected ischemic heart disease was in February 2016. In the VA examination report, the VA examiner disclaimed that she had undertaken a review of all available records, in conjunction with a telephone interview with the Veteran, without an in-person or telehealth examination. She further explained that she used the ACE process because the existing medical evidence, supplemented with a telephone interview, provided sufficient information for preparing a disability benefits questionnaire (DBQ), and that an examination would not have been likely to provide any additional relevant evidence. As part of her report, she indicated that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. However, the Board finds that this VA examination is inadequate for determining this increased rating claim for the following reasons. At his videoconference hearing, the Veteran describe his February 2016 VA examination as one that was “simply a telephone conversation.” He then indicated that he wanted VA to schedule a new VA examination for his heart conditions. Additionally, the evidence of records suggest that the severity of his ischemic heart disease may be worse than what was reflected in his February 2016 VA examination. At his hearing, he reported that his heart condition affects him on a daily basis and that he occasionally feels a bit fatigued. His most recent private treatment records, within the past year, additionally suggests that the severity of his ischemic heart disease has worsened, as they reflect, for example, that the Veteran’s cholesterol has worsened, based on February 2017 lab results, and that these results were also reflective of his progress with lowering his risk for future heart attacks or strokes. Thus, the evidence of record is contrary to the VA examiner’s determination that an in-person examination was not required, and accordingly, a remand is required for a new VA examination to determine the current severity of his ischemic heart disease. 2. Initial Increased Rating Claim for Residuals of Hairy Cell Leukemia At his April 2016 videoconference hearing, the Veteran suggested that the residuals of his hairy cell leukemia had worsened, as he stated that his platelet count, which had always been below the statistical average of the 150,000 to 400,000, was down to 77,000. The most recent examination for hairy cell leukemia that the Veteran underwent was at a private examination in August 2014. However, given the Veteran’s lay statements, which are corroborated by his private treatment records, which also suggest that the severity of the Veteran’s residuals of hairy cell leukemia has worsened, as they reflect an overall decrease in his platelet count from 105,000 in January 2014 to 77,000 in February 2017, with reports of worsening fatigue associated with the decline in platelet counts, a remand is required for a contemporaneous VA examination to determine the current severity of his hairy cell leukemia residuals. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (finding that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Obtain the requisite authorization and release from the Veteran and obtain all outstanding private and VA treatment records and associate them with the claims file. Thereafter, schedule the Veteran for an in-person VA examination to determine the current severity of his ischemic heart disease. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake a full cardiac examination, specifically including a METs test. To the extent possible, the VA examiner should use the appropriate disability benefits (DBQ) questionnaire. Also, schedule the Veteran for a VA examination to determine the current severity of the residuals of his hairy cell leukemia residuals. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished and all clinical findings reported in detail. To the extent possible, the VA examiner should use the appropriate DBQ questionnaire. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel