Citation Nr: 20006667 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 17-58 735 DATE: January 27, 2020 ORDER Entitlement to service connection for Tourette's syndrome with dystonia is granted. FINDING OF FACT The Veteran currently has Tourette’s syndrome with dystonia that is related to his active military service. CONCLUSION OF LAW The criteria for service connection for Tourette’s syndrome with dystonia have been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the US Army from January 1992 to July 1992.   This appeal to the Board of Veterans’ Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi dated in March 2010, January 2012, August 2014, and August 2015. Procedurally, in a March 2010 rating decision, the RO denied the Veteran’s claim for service connection for Tourette’s syndrome. Subsequently, in the January 2012, August 2014, and August 2015 decisions, the RO denied reopening the service connection claim for Tourette’s syndrome, also claimed as advanced progressive Tourette’s syndrome with dystonia, due to a lack of new and material evidence. In an October 2017 Statement of the Case (SOC), the RO reopened the claim for service connection for Tourette’s syndrome, but denied the claim on the merits. A Supplemental SOC (SSOC) issued later that month continued to deny the Veteran’s claim. The Veteran offered testimony at a Travel Board hearing before the undersigned Veterans Law Judge in January 2020. This decision is being prepared under the Board’s “one-touch” program, and a transcript of the Veteran’s hearing is not yet available. Such a transcript will be added to the Veteran’s file under the normal course of business. The Board notes that, as indicated, the RO adjudicated this matter as a claim to reopen, finding that the March 2010 rating decision denying service connection for Tourette’s syndrome was final and binding. See January 2012, August 2014, and August 2015 Rating Decisions. Although the RO ultimately reopened the claim, the Veteran’s Service Personnel Records, which include discussions of his medical fitness for service and include references to his diagnosis of Tourette’s syndrome, were not associated with the claims file until July 2015. See July 2015 National Archives and Records Administration Search Request Fulfillment Notification. Additionally, the Veteran’s complete Service Treatment Records (STRs), including in particular the records of in-service diagnosis of and treatment for Tourette’s syndrome, were not received or associated with the claims file until March 2017. See February 2017 Report of General Information and Request for Clinical Records; March 2016 Response to Request for Information (VA Form 21-3101) (reflecting that the Veteran’s complete “active duty inpatient clinical records” from May 1992 to July 1992 were obtained and associated with the claims file on March 2, 2017). In this regard, under the provisions of 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement under subpart (a) that there first be new and material evidence to reopen the claim. See also Vigil v. Peake, 22 Vet. App. 63 (2008) (official service department records are new and material evidence, thus requiring de novo review or reconsideration, rather than as a claim to reopen). However, this provision does not apply to records that VA could not have obtained when deciding the claim, either because they did not exist when VA decided it, or because the claimant failed to provide sufficient information for VA to identify and obtain them from an official source. 38 C.F.R. § 3.156 (c)(2). Here, the Veteran first notified VA of his in-service diagnosis of and treatment for Tourette’s syndrome in his initial October 2009 Claim. Additionally, the STRs obtained by VA in November 2009 clearly point to the existence of additional, unobtained records. In particular, the records obtained by the RO in November 2009 detail treatment and clinical evaluation of the Veteran between January 1992 and April 1992, despite the fact that the Veteran was discharged in July 1992. Moreover, in the Veteran’s October 2009 claim form, he specifically noted that his in-service treatment for Tourette’s syndrome did not begin until April 1992. Of additional significance is that the STRs obtained in November 2009 contain the final page of a multi-page psychiatric evaluation completed following inpatient treatment, dated June 21, 1992, signed by the Chief of Inpatient Psychiatry, reflecting the recommendation that the Veteran be administratively separated from service. No other records relevant to the Veteran’s psychiatric treatment, in-patient or otherwise, were of record at that time. Moreover, no personnel records relevant the Veteran’s separation had been requested or obtained at the time of the March 2010 rating decision denying service connection for Tourette’s syndrome. Accordingly, given the clear indication of the existence of additional records at the time of the March 2010 rating decision, and because the Veteran provided VA with sufficient information to obtain these records in his October 2009 claim, the March 2010 rating decision is subject to reconsideration by virtue of the later submission of the Veteran’s complete SPRs and STRs, which certainly qualify as “relevant official service records that existed and had not been associated with the claims file when [VA] first decided the claim.” 38 C.F.R. § 3.156(c)(1). Therefore, the Board will consider the service connection claim for Tourette’s syndrome on the merits, without addressing any threshold issue of whether new and material evidence has been received to reopen the claim. See 38 C.F.R. § 3.156 (c). Additionally, as detailed below, the Board’s decision awarding service connection for Tourette’s syndrome is based, in part, on those newly obtained records. See 38 C.F.R. § 3.156(c)(3) (reflecting that, an award made based all, or in part, on the newly received service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the general provisions of 38 C.F.R. § 3.156 (a) (concerning petitions to reopen based on new and material evidence) applicable to a previously decided claim). Entitlement to service connection for Tourette's syndrome. The Veteran asserts that he is entitled to service connection for Tourette’s syndrome, essentially arguing that his military service aggravated his pre-existing neurologic condition. For the following reasons, the Board finds entitlement to service connection is warranted for Tourette’s syndrome with dystonia. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a).   A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304(b)(1). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that “even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness”). VA may find a lack of aggravation under § 1111 if the clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 and 38 C.F.R. § 3.306); but see Horn, 25 Vet. App. at 238 (emphasizing that “neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111”). If this burden is met, then the Veteran is not entitled to service-connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption has not been rebutted. See id. at 1094. In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322); see also id. at 1094 (holding that Congress intended to “convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111”). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. See id. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Here, although there were not notations of Tourette’s syndrome or any other psychiatric or neurological disorders on the Veteran’s entry into service, the record shows, and the Veteran acknowledges, that he had been manifesting symptomatology later diagnosed as Tourette’s syndrome prior to his entry into service.   Accordingly, the Board must determine whether the presumption of soundness has been rebutted. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). For the following reasons, the Board finds that the presumption of soundness has not been rebutted. The Veteran’s September 1991 enlistment examination report shows that the Veteran was found to be neurologically and psychiatrically normal on clinical evaluation. See September 1991 Report of Medical Examination. Neither did he report any history of neurologic or psychiatric problems at entry. See September 1991 Report of Medical History. Therefore, the presumption of soundness attaches. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). See also Robinson v. Wilkie, No. 15-3549, 2018 U.S. App. Vet. Claims LEXIS 654, at n. 1 (Vet. App. May 16, 2018) (nonprecedential) (deploring a Veteran’s denial at induction that he contracted tuberculosis before service, when later-obtained medical records clearly establish that he had been extensively treated for that condition, but noting that “[t]here is no authority, however, that misleading information alters the effect of an enlistment examination report that does not note a preexisting condition”). There is clear and unmistakable evidence that the Veteran’s Tourette’s syndrome preexisted service. In this regard, the Veteran’s in-service treating clinicians, as well as his post-service private treatment providers and his evaluating VA clinicians, have repeatedly concluded that the Veteran’s Tourette’s syndrome had its onset during his childhood. See, e.g., June 1992 Department of Defense (DoD) Progress Notes (endorsing the Veteran’s reported history that his “tics began around 8 years old”); January 2010 and July 2010 Neurosurgery Operative Reports from K.D.F., M.D. (stating that the symptoms of the Veteran’s “severe Tourette’s syndrome” initially manifested when the Veteran was “in middle school” in the form of “tics including asymmetric eye blinking more pronounced on the right than the left”); September 2014 Progress Notes from H.M., M.D. (recording a “long standing history of tics dating back to about middle school”); September 2017 VA Mental Disorders Disability Benefits Questionnaire (DBQ) (noting that the Veteran’s Tourette’s syndrome “existed prior to service” ). Moreover, as noted, the Veteran has repeatedly reported that the symptomatology ultimately ascribed to his diagnosed Tourette’s syndrome had its onset when he was a child. See Doran v. Brown, 6 Vet. App. 283, 286 (1994) (holding that, “as a matter of law,... the presumption of soundness [could be]... rebutted by clear and unmistakable evidence consisting of [the] appellant’s own admissions... of a preservice [disability]”). Thus, there is clear and unmistakable evidence that the Veteran had Tourette’s syndrome prior to his active duty. However, the record does not contain clear and unmistakable evidence that the Veteran’s Tourette’s syndrome was not aggravated by service. See Horn, 25 Vet. App. at 238-39 (emphasizing that, under the aggravation prong of the presumption of soundness, it is VA’s burden to produce clear and unmistakable evidence either that there was no increase in severity of the preexisting condition, or that any increase was due to the natural progression of the condition). In fact, the probative medical and lay evidence of record suggests the opposite. For example, in the Veteran’s neurosurgery operative reports from 2010, the neurosurgeon noted that, when the Veteran “was in the Army,… his tics became more severe, ultimately developing coprolalia, which, in addition to his worsening tics led to his discharge from the military.” See January 2010 and July 2010 Neurosurgery Operative Reports from K.D.F., M.D. Additionally, subsequent private neurologic evaluation from September 2014 echoes the history of significantly increasing Tourette’s symptomatology during the Veteran’s active military service. See September 2014 Progress Notes from H.M., M.D. (stating that the Veteran’s symptoms “worsened … after entering the Army,” where he experienced “a severe exacerbation of tics with near constant blinking, face spasm, grunting, [and] corprolalia”). Moreover, although the Veteran’s STRs contain a July 1992 medical records cover sheet that includes a notation by a hospital administrator that the Veteran’s Tourette’s syndrome “existed prior to service” and was “not service aggravated,” the clinical evidence in the Veteran’s STRs, including repeated evaluation by DoD treating medical professionals, suggests a pronounced increase in severity of the symptoms of the Veteran’s Tourette’s syndrome during his active service. Specifically, a June 1992 clinical record reflects that the Veteran was seen for “[increasing] facial tics over [the] last 3 weeks” that “consist of repetitive, involuntary upward gaze of both eyes, followed by hard blink/grimace” and the onset of “involuntary verbal tics” consisting of “muttering repeatedly vulgar words.” See June 1992 Clinical Record. At that time, the Veteran “admit[ted] to a h[istory] o[f] much less intense involuntary blinking of his r[ight] eye occurring episodically from age 8” but maintained that the symptoms were “not nearly as severe as his current problem.” Id. This same assertion, that the tics were present for years but dramatically increased in severity during the Veteran’s active service, was repeatedly endorsed by multiple different treating clinicians, including in a June 1992 Psychiatric Consultation Sheet (referring the Veteran for Neurological evaluation and stating that the Veteran was under tremendous stress which led to a “recurrence of both vocal and eye movement type tics [approximately] 3 weeks ago”), a June 1992 Neurological Staff Note (reflecting that the Veteran’s “tics began around 8 years old, complaint of worsening and onset of cursing (involuntary) over the past few weeks assoc[iated with increase in] perceived stress”), and a June 1992 Nursing Progress Note (reflecting that “the tics were not a problem for [the Veteran] before he joined the military although they were present”). Further, the Veteran has asserted in statements put forth throughout the pendency of the claim that the severe manifestations of his Tourette’s symptomatology initially manifested during his active service, eventually leading to his early discharge. See, e.g., Veteran Correspondence dated in November 2017, October 2017, and June 2015. In this regard, the Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Moreover, the Veteran is competent to report experiencing symptoms attributed to his Tourette’s syndrome, as such symptoms as facial and verbal tics are certainly capable of lay observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (finding that, in certain circumstances, lay evidence may be competent to establish a medical etiology).   Significantly, the Veteran’s statements regarding the onset and duration of Tourette’s syndrome symptomatology are bolstered by the statements of his spouse and his parents, who confirm the increased severity of his symptoms during his active service, as well as the continued manifestation of his Tourette’s syndrome symptoms to the present. See, e.g., October 2017 Letter from the Veteran’s Spouse; October 2017 Statement from the Veteran’s Parents. See also Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Moreover, as noted above, absent the sole unsupported notation by administrative staff that the Veteran’s condition was “not service aggravated,” the Veteran’s available service treatment records lend additional credence to his claims. The Board acknowledges that the September 2017 VA examiner determined that there was “no objective evidence of aggravation [of the Veteran’s Tourette’s syndrome] by treatment/events in service.” See September 2017 VA Mental Disorders DBQ. This determination, however, is entirely unsupported by any rationale and misstates the relevant legal standard. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Moreover, the VA examiner failed to consider or address any of the extensive contemporaneous medical evidence, discussed above, of increasing Tourette’s syndrome symptomatology during the Veteran’s active service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value.). Accordingly, this finding of a lack of aggravation by the VA examiner does not rise to the level of clear and unmistakable evidence required to rebut the aggravation prong of the presumption of soundness. See Vanerson, 12 Vet. App. at 258; Cotant, 17 Vet. App. at 131. Thus, VA has not met its burden to rebut the presumption of soundness. Therefore, the second element of service connection is established, and benefits may not be deducted or denied on the basis of evidence of pre-existence of Tourette’s syndrome. See Wagner, 370 F.3d at 1096.   As to the first and third elements of service connection, the medical evidence reflects that the Veteran has a current diagnosis of Tourette’s syndrome with dystonia. See, e.g., December 2015 Correspondence from the Veteran’s Private Treating Neurologist, J.W.S., M.D. (reflecting a diagnosis of “a rare, severe dystonic form of Tourette’s syndrome”); September 2017 VA Mental Disorders DBQ (reflecting a diagnosis of “Tourette’s Disorder”). Further, a nexus between the Veteran’s current Tourette’s syndrome diagnosis and his period of active service is likewise established in light of the findings, echoed by both the VA examiner and the Veteran’s private treating clinicians, that the Veteran’s current Tourette’s syndrome is the result of or a continuation of the disorder he had in service. See December 2015 Correspondence from the Veteran’s Private Treating Neurologist, J.W.S., M.D.; September 2017 VA Mental Disorders DBQ. In fact, the entirety of the record, detailed above, supports that the current Tourette’s syndrome is a progression of the Tourette’s syndrome diagnosed during the Veteran’s active duty service. See, e.g., January 2010 and July 2010 Neurosurgery Operative Reports from K.D.F., M.D. (reflecting that the Veteran is “very disabled from severe Tourette’s syndrome,” the symptoms of which have progressively increased in severity since his time in the military); September 2014 Progress Notes from H.M., M.D. (reflecting a progression of Tourette’s syndrome symptoms since the “severe exacerbation” of the Veteran’s Tourette’s syndrome during his active military service); December 2015 Correspondence from J.W.S., M.D. (opining that the stress of the Veteran’s military service “resulted in more significant progression” of the current Tourette’s syndrome); October 2017 Central Nervous System and Neuromuscular Diseases DBQ completed by G.N., M.D. (noting that the Veteran was “initially diagnosed [with] Tourette’s while in the military,” which has been “rapidly progressive”). Accordingly, because the Veteran has a current diagnosis of Tourette’s syndrome with dystonia, given that the in-service incurrence element is established by virtue of the application of the presumption of soundness, in light of the medical evidence establishing that the Veteran’s current Tourette’s syndrome is the continuation of the Tourette’s that was present during active service, and in the absence of any evidence to the contrary, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current Tourette’s syndrome is related to his active service. See 38 C.F.R. §§ 3.303(a), 3.304(f); Shedden, 381 F.3d at 1166-67. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for Tourette’s syndrome with dystonia is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Luke McCabe The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.