Citation Nr: 18127172 Decision Date: 08/16/18 Archive Date: 08/16/18 DOCKET NO. 14-35 768 DATE: August 16, 2018 ORDER The appeal of the service connection claim for a brain abscess is dismissed. The appeal of the increased rating claim for tinnitus is dismissed. New and material evidence has been presented, and the claim of entitlement to service connection for a lumbar spine disorder is reopened. New and material evidence has been presented, and the claim of entitlement to service connection for hepatitis C is reopened. A rating of 40 percent for a seizure disorder is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for residuals from a traumatic brain injury is denied. Service connection for gastroesophageal reflux disease is granted. Service connection for a lumbar spine disability with bilateral lower extremity radiculopathy is granted. Service connection for hepatitis C is granted. A total disability rating based on individual unemployability as a result of service connected disabilities is granted. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder is remanded. Entitlement to service connection for a fatigue disorder is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for a liver disorder is remanded. Entitlement to service connection for digestive disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an effective date prior to December 5, 2008, for the grant of service connection for a seizure disorder is remanded. FINDINGS OF FACT 1. At the March 2018 Board hearing and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his service connection claim for a brain abscess and his increased rating claim for tinnitus. 2. In an April 2008 rating decision, the Veteran’s service connection claim for a lumbar spine disorder was denied. 3. The evidence received since the April 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disorder, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 4. The Veteran’s seizure disorder results in at least five to eight minor seizures per week. 5. The Veteran is not shown to have a separate diagnosis of residuals from a traumatic brain injury (TBI). 6. It is as likely as not that the Veteran’s gastroesophageal reflux disease (GERD) is due to his service-connected seizure disorder. 7. It is as likely as not that the Veteran’s lumbar spine disorder with bilateral lower extremity radiculopathy is due to his active service. 8. It is as likely as not that the Veteran’s hepatitis C is due to his active service. 9. The evidence of record makes it at least as likely as not that the Veteran’s service connected disabilities are of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the service connection claim for a brain abcess have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the increased rating claim for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The April 2008 rating decision that denied service connection for a lumbar spine disorder is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 4. New and material evidence has been received since the April 2008 rating decision that is sufficient to reopen the Veteran’s claim of entitlement to service connection for a lumbar spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The April 2008 rating decision that denied service connection for a lumbar spine disorder is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 6. New and material evidence has been received since the April 2008 rating decision that is sufficient to reopen the Veteran’s claim of entitlement to service connection for a lumbar spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. The criteria for an initial rating of 40 percent, but no higher, for a seizure disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8911, 8914. 8. The criteria for service connection for a TBI have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 9. The criteria for service connection for GERD have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. 10. The criteria for service connection for a lumbar spine disability with bilateral lower extremity radiculopathy have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 11. The criteria for service connection for hepatitis C have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 12. The criteria for a total disability rating based on individual unemployability (TDIU) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from January 1977 to June 1977 and in the Navy from January 1980 to July 1981. In connection with this appeal, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge in March 2018. A transcript of that hearing is of record. Although the Veteran was issued a statement of the case in December 2017 addressing the issues of service connection for arthritis and depression, in his January 2018 VA Form 9, the Veteran indicated that he was limiting his appeal to the issues adjudicated in this decision. Therefore, the arthritis and depression matters are not before the Board. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, at the March 2018 Board hearing, the Veteran expressly withdrew his appeal with regard to the service connection claim for a brain abscess and his increased rating claim for tinnitus prior to promulgation of an appellate decision. The waiver at the Board hearing was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these specific matters. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are therefore dismissed. Reopening Claims The service connection claims for a lumbar spine disorder and hepatitis C are reopened as the Veteran and his wife provided testimony at the Board hearing regarding the etiology of the Veteran’s lumbar spine disorder and hepatitis C, which is determined to be credible for the limited purposes of reopening the claims, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously-denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claims are reopened. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In a February 2011 rating decision, the Veteran was granted service connection for his seizure disorder and assigned an initial rating of 20 percent under Diagnostic Code 8914 effective December 5, 2008. The Veteran asserts that he is entitled to a higher rating. Diagnostic Code 8914 for epilepsy will be rated under the general rating formula. Under the General Rating Formula for Major and Minor Epileptic Seizures, a 20 percent evaluation is assigned for at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent evaluation is assigned for at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. A 60 percent evaluation is assigned for averaging at least 1 major seizure in 4 months over the last year; or 9–10 minor seizures per week. An 80 percent evaluation is assigned for averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent evaluation is assigned for averaging at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a, General Rating Formula for Major and Minor Epileptic Seizures. The Veteran’s medical records show treatment for his seizure disorder that includes prescription medications. At the March 2018 Board hearing, the Veteran and his wife both credibly testified that the Veteran has minor seizures almost daily, but at least five times per week. The Veteran credibly testified that he has about one major seizure per year. After a complete review of the record, the Board concludes that the Veteran’s seizure disorder results in at least five minor seizures per week, which is equivalent to a 40 percent rating. The claims file does not document that the Veteran has at least one major seizure every four months or nine to ten minor seizures weekly. Accordingly, a schedular rating of 40 percent, but no higher, is warranted for the Veteran’s seizure disorder, and his claim is granted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. TBI In April 2009, the Veteran filed his service connection claim for a TBI, which was denied by a February 2011 rating decision. He asserts he experienced a TBI during his active service. The Veteran’s service treatment records (STRs) show that that he experienced a fall during his naval service that resulted in his seizure disorder diagnosis. The Veteran is service connected for his seizure disorder. He is also service connected for posttraumatic stress disorder (PTSD) and a headache disorder, both as secondary to his seizure disorder. The Veteran’s treatment records do not show any specific diagnoses for a TBI. In April 2017, the Veteran was afforded a VA examination. After reviewing the Veteran’s claim file, interviewing the Veteran, and conducting an examination, the examiner indicated that the Veteran’s medical records did not show a diagnosed traumatic brain injury (TBI). The Veteran has not submitted any medical evidence supporting his assertion that he has a diagnosis of a TBI. As such, the record does not show any current diagnosis of a TBI. While a layperson is competent to report observable symptomology and diagnose a simple medical condition, the specific issue in this case falls outside the realm of a layperson’s knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For example, while the Veteran might be competent to report experiencing a TBI in service and to report symptoms he currently experiences, he is not found to have the medical expertise to determine whether any chronic residual disability emerged from such an injury. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board notes that TBIs are evaluated under mental dysfunction or physical dysfunction. In this case, the Veteran is already in receipt of ratings for both mental (PTSD) and physical (headaches) dysfunction. Accordingly, the Board finds that the evidence is against the claim and entitlement to service connection for a TBI is denied GERD The Veteran filed his service connected claim for GERD in March 2014, which was denied by a March 2015 rating decision. In February 2018, Dr. Robert Townsend reviewed the Veteran’s claims file and opined that the Veterans’ GERD was more likely than not secondary to medications taken to treat the Veteran’s service-connected seizure disorder. As such, the evidence for and against the Veteran’s claim is in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, the Veteran’s claim for service connection for GERD is granted. Lumbar Spine with Bilateral Lower Extremity Radiculopathy In April 2010, the Veteran filed his service connection claim for a lumbar spine disability, which was denied by a February 2011 rating decision. In August 2015, the Veteran filed his service connection claim for bilateral lower extremity radiculopathy. He asserts that his lumbar spine disability with bilateral lower extremity radiculopathy is due to his active service. The Veteran’s STRs show that the Veteran experienced a lumbar spine strain in March 1977. In April 1977, he reported that his low back pain radiated into his lower extremities. At an April 1977 physical, he was noted to have chronic low back pain. The Veteran also has submitted multiple statements from his mother and wife, who both knew the Veteran during his active service. They both reported that he returned from service with low back pain and leg pain. In January 2011, the Veteran was afforded a VA examination. After reviewing the Veteran’s claim file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s lumbar spine disability was less likely than not due to his active service. However, the examiner only referred to the Veteran’s STRs from his Navy service and not his STRs from his Army service. In February 2018, Dr. Townsend reviewed the Veteran’s claims file. Dr. Townsend opined that the Veteran’s lumbar spine disability with bilateral lower extremity radiculopathy was more likely than not due to his active service. The opinion of the Dr. Townsend and the multiple lay statements are given great probative weight. Dr. Townsend reviewed objective medical evidence, referred to objective medical studies, and opined that the Veteran’s lumbar spine disability with bilateral lower extremity radiculopathy were at least as likely as not due to the Veteran’s active service. Although another medical opinion has reached the opposite conclusion, the evidence for and against the Veteran’s claim is in at least relative equipoise. Accordingly, the Veteran’s claims for service connection for a lumbar spine disability with bilateral lower extremity radiculopathy are granted. Hepatitis C In March 2014, the Veteran filed his service connection claim for hepatitis C, which was denied by a March 2015 rating decision. He asserts that his hepatitis C is due to his active service. He testified that he acquired hepatitis C during a blood transfusion after he experienced the fall that resulted in his seizure disorder. The Veteran’s treatment records show that he has been diagnosed with hepatitis C. In May 2014, the Veteran’s physician reported that the Veteran may have acquired hepatitis C by a blood transfusion in 1980 as there was no blood screening at the time or by a mass vaccination needle in the late 1970s. Of note, the Veteran is not shown to have significant post-service hepatitis C risk factors. As such, when weighing the evidence of record, the Board finds that at most the evidence for and against the Veteran’s claim is in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, the Veteran’s claim for service connection for hepatitis C is granted. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. In this case, the Veteran now meets the schedular criteria for a TDIU. The Veteran asserts that he is entitled to a TDIU. Records from the Social Security Administration show that the Veteran has been in receipt of Social Security Disability Benefits since June 2008 due to his PTSD. On his claim form (VA Form 21-8940), he indicated that he had last worked part-time in menial labor from 2008 to 2010. He indicated that he left his last job due to his disabilities. In February 2018, Dr. Townsend reviewed the Veteran’s claims file and opined that the Veteran was unable to sustain substantial gainful employment due to his service-connected disabilities. Specifically, Dr. Townsend reported that the Veteran’s seizure disorder as this type of condition was not conducive to the workplace. Dr. Townsend opined that the Veteran was unable to sustain substantially gainful employment, and his conclusions are supported by the evidence of record. As such, the Board concludes that the evidence for and against TDIU is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran’s behalf, and hold that TDIU is warranted. As such, the Veteran’s claim is granted.   REASONS FOR REMAND PTSD Regarding the Veteran’s increased rating claim for PTSD, he was last afforded a VA examination in November 2014. At the Board hearing, the Veteran testified that his PTSD had increased in severity. The Veteran submitted a DBQ in July 2018 in which the doctor suggested the Veteran was totally socially impaired, but she did not explain how this was possible given the Veteran’s marriage and relationship with his wife. As such, the Veteran should be afforded a new VA examination to determine the nature and severity of his PTSD. Fatigue, Allergies, Liver Disorder, Digestive Disorder, and Hypertension Regarding the Veteran’s service connection claims for fatigue, allergies, a liver disorder, a digestive disorder, and hypertension, he asserts that these are all secondary to his service-connected disabilities. As such, this evidence is sufficient to trigger VA’s duty to provide VA examinations. Seizure Disorder Effective Date The Veteran filed his service connection claim for a seizure disorder in December 2008, which was granted by a February 2011 rating decision. The Veteran promptly responded that the effective date for his rating should have gone back to either his date of discharge from service in 1981or to February 27, 1984, the date of his original service connection claim. This notice of disagreement is still pending, and a remand is required for a statement of the case on these issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a psychiatrist or psychologist to assess the severity of his service-connected PTSD. The examiner should specifically address whether the Veteran should be considered totally socially impaired as a result of his PTSD. Why or why not? 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of any fatigue, allergies, a liver disorder, a digestive disorder, and hypertension. The examiner then should address the following questions: a. Is it at least as likely as not (50 percent or greater) that any current fatigue, allergies, a liver disorder, a digestive disorder, and/or hypertension either began during or was caused by the Veteran’s active service? Why or why not? b. Is it at least as likely as not (50 percent or greater) that any current fatigue, allergies, a liver disorder, a digestive disorder, and/or hypertension was directly caused by a service connected disability or medications prescribed for a service connected disability? Why or why not? c. Is it at least as likely as not (50 percent or greater) that any current fatigue, allergies, a liver disorder, a digestive disorder, and/or hypertension was aggravated (made worse) by a service connected disability or medications prescribed for a service connected disability? Why or why not? If aggravation is found, the examiner should identify the baseline level of severity of the disability by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the shoulder disability. 3. Issue the Veteran and his representative a statement of the case addressing the issue of an earlier effective date for a seizure disorder. The Veteran’s and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, this claim should not be certified to the Board. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel