Citation Nr: 18137813 Decision Date: 09/24/18 Archive Date: 09/21/18 DOCKET NO. 18-10 829 DATE: September 24, 2018 ORDER New and material evidence not having been received, the claim for service connection for memory loss due to Alzheimer's disease is not reopened. Service connection for heart surgery with stints to include temporary 100 percent evaluation is denied. A rating in excess of 10 percent disabling for epilepsy (claimed as seizure disorder) is denied. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The evidence received since the final July 2016 Board rating decision denying service connection for memory loss due to Alzheimer’s disease is duplicative, cumulative, or does not relate to an unestablished fact necessary to substantiate the claim, and does not raise reasonable possibility of substantiating the claim. 2. The preponderance of the evidence is against finding that the Veteran’s heart surgery is due to a disease or injury in service, to include specific in-service event, injury, or disease. 3. The Veteran’s epilepsy is stable and he has not had a seizure in two years. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for memory loss due to Alzheimer’s disease have not been met. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1100. 2. The criteria for service connection for heart surgery with stints to include a temporary 100 percent evaluation have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for a rating in excess of 10 percent for epilepsy (claimed as seizure disorder) have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8910. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1957 to December to July 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the evidence of record does not show an increased rating claim was filed for the Veteran’s service-connected epilepsy disability. The January 2018 statement of the case (SOC) regarding the epilepsy issue annotated that the increased rating claim was filed in July 2017. A review of the July 2017 claim shows that the Veteran filed a fully developed claim (FDC) for TBI and secondary disorders, to include seizure disorder, Alzheimer’s, and memory loss. There was also an FDC filed for 100% temporary disability due to heart surgery the following month in August 2017. However, there was no increased rating claim filed for epilepsy, but such was adjudicated by the RO in the October 2017 ratting decision and the January 2018 statement of the case. The Board further notes that a March 2013 RO rating decision, which stated the prior denial of service-connection for epilepsy was clearly and unmistakably erroneous, granted service connection for epilepsy with a 10 percent rating effective July 14, 1987. Following the decision, the Veteran’s representative filed a claim for an earlier effective date in March 2017. However, as noted in a supplemental statement of the case (SSOC) in August 2018, there had been a typographical error found in the rating decision, which had been corrected. There were no other claims filed regarding the epilepsy issue. The Board finds that the RO has treated the rating increase issue as a timely submission on appeal based on the issuance of an SOC, as such the Board will take jurisdiction and adjudicate the rating increase for epilepsy. Percy v. Shinseki, 23 Vet. App. 37 (2009). Whether new and material evidence has been received to reopen a claim of service connection for memory loss due to Alzheimer’s disease. Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final decision of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Board notes the memory loss claim was previously before the Board in July 2015, December 2015, and June 2017. The two prior decisions were remands for further development of the claim. The June 2017 decision denied service connection for memory loss due to Alzheimer’s disease to include as secondary to TBI. The 2017 Board decision found that the Veteran had a current diagnosis of Alzheimer’s disease and that there had been competent and credible testimony of in-service head injuries. However, the Board found that the preponderance of the evidence of record was against a finding of a nexus between active service and Alzheimer’s disease, to include any TBI sustained in active service. In addition, the Board found that the preponderance of the evidence was against a finding that Alzheimer’s disease was caused or aggravated by the Veteran’s service connected epilepsy. The Veteran did not appeal the Board’s decision and thus the claim became final. 38 C.F.R. § 20.1100. The Veteran filed a fully developed claim (FDC) in July 2017 asserting he had TBI secondary to seizures, Alzheimer’s and memory loss. After review of the pertinent probative evidence of record, the Board finds that new and material evidence has not been submitted to reopen the claim. The June 2017 Board decision provided a comprehensive analysis of the memory loss issue after two prior Board remands. The decision specifically stated that there was no nexus between active service and memory loss due to Alzheimer’s, to include any potential TBI that could have occurred during active service. The Veteran is not currently diagnosed as having a TBI. The probative evidence of record submitted after the filing consisting of contemporaneous treatment record does not provide any probative evidence related to a nexus regarding memory loss. Thus, after review of the record, the Board finds that new and material evidence has not been received to reopen the claim for memory loss. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A Veteran, who during active military, naval, or air service, served in Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The following disease will be deemed service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type II diabetes (also known as Type II diabetes mellitus); Hodgkin’s disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations regarding such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2 Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related disease/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions, and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21, part IV, Subpart ii, Chapter 2, Section C, 9(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 1. Entitlement to service connection for heart surgery with stints to include temporary 100 percent evaluation. The Veteran contends that his heart surgery with stints is related to his active military service. The Veteran underwent a coronary bypass surgery (CABG) in July 2017, thus meeting the first element of a service connection claim, a current diagnosis. However, the Board finds that the Veteran’s heart condition is not related to his active military service. A review of the evidence of record shows that the Veteran served for 30 years on active duty and there was no complaint, treatment, or diagnosis related to a heart condition. The Board notes that his initial enlistment examination is not associated with the evidence of record, however during the course of his 30-year military career he was given numerous re-enlistment examinations as he re-enlisted eight times based on his DD Form 214s associated with the claims file. The examinations of record in his STRs dating from February 1961 to April 1983 show no heart issues. Particularly, in September 1981 he was given a chest X-ray which showed a normal heart size and the impression was normal chest. Notably, during service, the Veteran had septal reconstruction surgery in April 1984 due to an inability to breath based on childhood injuries. In addition to treatment for chronic obstructive pulmonary disease (COPD). The Veteran is service connected for bronchial asthma. However, the Board notes his June 1987 retirement examination was silent for cardiovascular issues. On the accompanying Report of Medical History, he annotated the following conditions: fever; swollen joints; hearing loss; sinusitis; asthma; shortness of breath; chest pain; palpitations of the heart. The evidence in the service treatment records fails to reflect evidence related to a heart condition throughout his 30 years of active duty service, and he treated for a variety of ailments during his tenure in service and multiple general physical examinations. When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). However, the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded. Id. (citing Fed. R. Evid. 803(7)); see also Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (suggesting that the Board could properly draw an inference from contemporaneous service medical records that do not record an injury if it finds the SMRs appear complete, and the injury, disease, or related symptoms would ordinarily have been recorded had they occurred). Indeed, the Veteran’s service treatment records span his length of service and appear to be complete. During the Veteran’s 30 years of military service, he underwent many physical examinations and these did not record heart issues. Additionally, as noted above diagnostic testing also did not reflect a heart problem. In light of these factors, the Board finds that the evidence weighs against an in-service event, injury, or disease. Additionally. although not dispositive a lack of medical complaint can be a factor that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran’s health and medical treatment during and after military service). Here, the record contains no treatment during service as well as a 30-year span before the heart condition surfaced. As such, the Board finds that such evidence weighs against the claim. CABG is one of the enumerated diseases identified under 38 C.F.R. § 3.309(a), thus service connection may be established on a presumptive theory of entitlement for chronic diseases. However, the probative evidence of record here does not show that symptoms related to CABG manifested to a compensable degree during the year following service. In addition, the record does not support a continuity of symptomatology theory of entitlement as the first report of heart issues, as noted above, was 30 years following service. Moreover, the Veteran has not asserted symptomatology on a continual basis following active service. In addition, the Board finds that the Veteran has not been exposed to asbestos or Agent Orange, these theories of entitlement must fail. The Veteran has not provided evidence of exposure to asbestos nor has he provided evidence that shows he set foot on the mainland of The Republic of Vietnam. The Veteran has failed to respond to inquiries requesting additional information to support his claims for asbestos exposure or Agent Orange, specifically the last VA letter was dated May 2018. Notably, the Veteran’s accredited representative provided an article highlighting Navy ships that conducted operations along the inland waters of Vietnam. The article circled the USS Herbert J. Thomas, which operated in the Mekong River Delta during December 1966 and on the Saigon River during April 28, 1968. A review of the Veteran’s duty assignments from February 1961 to August 1983, reveals that the Veteran was never assigned to the ship let alone during the time frame identified in the article. Therefore, the Board finds the military service records chronologically listing the Veteran’s activities and duties to be more probative than the information circled on the list. The Board lends weight to them as they were created contemporaneously and are the official military records. Based on this, the Board finds that that the evidence weighs against a finding that the Veteran was exposed to herbicide agents or asbestos during his active military service. Regarding asbestos, the Board notes the Court of Appeals for Veterans Claims has held that the M21-1 provisions do not create a presumption of exposure to asbestos solely from shipboard service. Dyment v. West, 13 Vet. App. 141, 145 (1999). The Board acknowledges the Veteran’s assertions that his heart surgery is related to his military service. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of a heart disability is a medical question not subject to lay expertise. See Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition here involves a pathological process related to cardiovascular disease that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of origin of the diagnosed condition is a medical question requiring medical training, expertise, and experience. As such, the Veteran’s statement in this regard are not competent and lack weight. In sum, the Board gives great weight to probative medical evidence of record, which does not support a heart condition related to service. Rating Increase Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different rating during the course of the appeal, the assignment of staged ratings would be necessary. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Epilepsy, whether grand mal under Diagnostic Code 8910 or petit mal under Diagnostic Code 8911, is rated under the General Rating Formula for Major and Minor Epileptic Seizures. 38 C.F.R. § 4.124a (2016). Under the General Rating Formula for Major and Minor Epileptic Seizures, a 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted for 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months. A 40 percent rating is assigned for 1 major seizure during the preceding 6 months or 2 major seizures, or 5 to 8 minor seizures weekly, during the preceding year. A 60 percent rating is warranted for 3 major seizures or 9 to 10 minor seizures weekly, during the preceding year. An 80 percent rating is assigned for 4 major seizures, or more than 10 minor seizures weekly, during the preceding year. A 100 percent rating is warranted for 12 major seizures during the preceding year. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2016). A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8910, Note (1), (2). The General Rating Formula for Major and Minor Epileptic Seizures provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, Note (3). Entitlement to an initial rating greater than 10 percent disabling for epilepsy (claimed as seizure disorder). As noted above, the Veteran did not file a claim for an increased rating. The RO considered a July 2017 TBI claim an increased rating claim. As such, the Board will consider the period one year prior to July 2017 as the period on appeal. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). After review of the relevant medical and lay evidence over the period on appeal, the Board finds that a rating in excess of 10 percent disabling for epilepsy is not warranted. In October 2017, the Veteran was afforded a VA examination for seizures. The examiner found no seizure activity had occurred in the previous 2 years. The examination report reflects that the date of the Veteran’s most recent seizure active was in August 1987. There was no change in the Veteran’s symptomatology and there were no additional diagnoses related to epilepsy. He continues to take medication as electronencephalography (EEG) tests performed in August 1987 and in 2006 and 2006 showed seizure activity. Based on the evidence above, the Board finds that the Veteran’s epilepsy reflected symptomatology more nearly approximating a 10 percent rating. The October 2017 VA examination reveals there has been no change in the Veteran’s symptomatology. The Veteran has not exhibited symptoms warranting a 20 percent rating. There has been no seizure activity for at least 2 years. The Board recognizes the Veteran’s contentions that his seizures have increased, however the competent medical evidence of record outweighs any lay assertions. A seizure diagnosis is a pathological process that requires medical expertise and training relating to the functioning of the brain, therefore the October 2017 VA examination report completed by a person with medical training and education carries the greatest weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to for an increased rating in excess of 10 percent for the Veteran’s epilepsy disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for traumatic brain injury (TBI) is remanded. The evidence of record reveals the Veteran has had several examinations related to epilepsy and Alzheimer’s disease. However, he has never had an examination specifically to determine whether or not he has a diagnosis of TBI. Although, VA examiners have annotated on examinations that the Veteran does not have a TBI diagnosis the examinations were not specifically addressing TBI; but instead addressed the collateral issues of epilepsy and Alzheimer’s disease. As noted in the Board’s July 2015 remand and its 2017 decision, the Veteran’s statements regarding head injuries during service although not indicated in his service records were considered competent, credible and consistent with the circumstances of his service. Throughout the pendency of the claim the Veteran’s assertions about his head injuries during service have been consistent. Specifically, his initial report of head injuries in his October 2011 statement and his testimony at the Board video conference hearing in May 2015. The Board finds there is an indication that the TBI disability or persistent recurrent symptoms of a TBI disability may be associated with the veteran’s service or with another service-connected disability. As such, remand is warranted to afford the Veteran a VA examination related to TBI. See McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.)   The matter is REMANDED for the following actions: 1. Update/Obtain VA treatment records from May 2018 to the present. Document all requests for information as well as responses in the claims file. 2. Then, schedule the Veteran for an examination by an appropriate clinician (here, physiatrists, psychiatrists, neurosurgeons, or neurologists) to determine the nature and etiology of his claimed TBI. The examiner is to provide an opinion whether is it at least likely as not related to an in-service injury, event, or disease. The examiner is to consider and address: (a.) Veteran’s October 2011 statement regarding multiple head traumas during service and his epilepsy diagnosis. (b.) Board video conference testimony regarding head injuries in May 2015. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel