Citation Nr: 18154781 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 14-00 695 DATE: December 4, 2018 ORDER Service connection for major depression is granted. REMANDED A rating greater than 40 percent for a seizure disorder is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran served on active duty from July 1988 to February 1991. 2. Major depression was caused by or permanently worsened in severity by a service-connected seizure disorder. CONCLUSION OF LAW Major depression is proximately due to, aggravated by, or the result of a service-connected seizure disorder. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedurally, the Veteran offered testimony during a January 2018 videoconference hearing. A transcript of this proceeding has been associated with the record. He initially filed separate service connection claims for depression and anxiety. Based upon the evidence of record, these claims are now combined into one issue and expanded to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Further, the Veteran has submitted numerous TDIU assertions during the pendency of this appeal, including in December 2011 and April 2013. Although this issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board construes the issue as part and parcel of the increased rating appeal, in part due to the Veteran’s contention that his seizures contribute to his unemployability. As such, the Board finds that it has jurisdiction over the TDIU claim at this time. See generally Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Service Connection The Veteran is currently pursuing service connection for an acquired psychiatric disorder on the basis that it is causally related to his service-connected seizure disorder. In this respect, service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As to the first element, the Veteran was diagnosed with major depression during a February 2010 VA examination. This diagnosis is largely corroborated by the record, including private psychiatric records and a February 2018 private treatment letter. As such, the first element of secondary service connection—a current disability—has been met. As noted above, the Veteran is currently service-connected for a seizure disorder, such that the second element of secondary service connection—a service-connected disability—has also been met. Accordingly, the appeal may be granted upon evidence of a causal link between the Veteran’s seizure and psychiatric disorders. There are two opinions of record for the Board’s consideration. First, the February 2010 VA examiner concluded that the Veteran’s “current depression symptoms appear to have elevated as a consequence of [his] service-connected seizure disorder.” In the accompanying narrative, the examiner acknowledged that the Veteran had a long history of depression which was, over the years, triggered by a variety of factors. Although it was not possible for the examiner to assess the degree of aggravation due to the Veteran’s seizure disorder, it was true that historically, he had been depressed since his early 20s and this condition was exacerbated by “uncomfortable circumstances” including the presence of the seizure disorder. The February 2018 private examiner similarly concluded that the Veteran’s current depression was more likely than not a result of his seizure disorder. Here, the examiner observed that the Veteran frequently became anxious as a result of the degree of quantity of his seizures. He regularly had difficulty with task completion as this elevated his stress levels, which had been known to increase the likelihood of a seizure. Due to his seizure disorder and the absence of employment, he also had financial difficulties and could not provide his own method of transportation. As a result, he experienced isolation and depressive symptoms. In sum, the Veteran’s seizure disorder impacted his daily social functioning, occupational functioning, and engagement in substantial gainful activity. Significant probative value is afforded to these opinions, which are based upon detailed assessments of the Veteran’s psychiatric symptoms and the observable impact of his seizure disorder. See; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). Moreover, there is no indication that the examiners were not fully aware of the Veteran’s past medical history or misstated any relevant facts in rendering their opinions. Instead, both providers possess the requisite medical expertise to offer competent medical opinions regarding the etiology of the Veteran’s psychiatric disorder and had sufficient data on which to base their conclusions. Further, there are no opinions of record which tend to contradict the examiners’ findings. Accordingly, the preponderance of the evidence is in favor of the claim and the benefit-of-the-doubt rule applies. Service connection for major depression is hereby granted. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay, further development is necessary prior to the adjudication of the seizure disorder rating and TDIU appeals. During the January 2018 hearing, the Veteran reported occasional hospital treatment for his seizure disorder at facilities in Asheville, NC and Houston, TX, to include neurological evaluations. As these records have not yet been associated with the claims file, all reasonable efforts must now be made to obtain them. Also during the hearing, the Veteran reported a significant worsening of his seizure disorder, both in the severity and frequency of his symptoms. As he most recently underwent VA examination in February 2010, the Board finds that a new examination is now warranted such that the current severity of his disability may be assessed. Further, determination of the seizure appeal will directly impact the TDIU appeal, such that the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As such, remand of the seizure appeal necessitates remand of the TDIU issue, as well. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify all private providers of medical treatment for his seizure disorder, and request that he provide authorization for release of all such private medical records to VA. In particular, records from hospitals in Asheville, NC and Houston, TX, are to be solicited, as per the Veteran’s January 2018 hearing testimony. 2. Schedule the Veteran for an examination to assess the current severity of his service-connected seizure disorder. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail in accordance with Diagnostic Code 8910. Any indicated diagnostic tests and studies must be accomplished, as needed. In particular, the examiner is asked to indicate the frequency (yearly, monthly, and weekly) and severity (major or minor) of seizures in accordance with 38 C.F.R. § 4.124a. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as application to this claim. 3. If appropriate, refer the claim to VA’s Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). (Continued on the next page)   4. Thereafter, readjudicate the remaining claims on appeal. If the benefits sought remain denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period in which to respond. Then, return the appeal to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel