Citation Nr: 21001944 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 19-25 126 DATE: January 12, 2021 ORDER Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for a seizure disorder, partial seizures with complex symptomatology (seizure disorder); also claimed as epilepsy, is granted, to that extent only. REMANDED Entitlement to service connection for Dercum's disease is remanded. Entitlement to service connection for a seizure disorder is remanded. FINDING OF FACT The July 2015 rating decision denying entitlement to service connection for seizures is final; in the absence of a perfected appeal regarding that decision. The evidence associated with the claims file since the July 2015 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for seizures. CONCLUSION OF LAW The July 2015 rating decision denying the claim for entitlement to service connection for seizures is final. New and material evidence sufficient to reopen the claim has been received. 38 U.S.C. § 5108, 7104, 7105; 38 C.F.R. § 3.156, 3.160(d), 20.200, 20.201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to August 1978. These matters come before the Board of Veteran’s Appeals (Board) from a January 2017 rating decision that in part denied reopening the claim of service connection for a seizure disorder and from a March 2018 rating decision that denied service connection for Dercum’s disease, issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied reopening the claim of service connection for a seizure disorder finding no new and material evidence. The Veteran disagreed with that decision and appealed to the United States Court of Appeals for Veterans Claims (CAVC). In August 2020, the CAVC granted a Joint Motion for Remand (JMR) where the parties requested vacatur of the November 2019 Board decision and a remand for re-adjudication. The claim is again before the Board. Additionally, the Board notes an August 2017 rating decision denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and the Veteran perfected an appeal of that decision. See August 2017 rating decision, November 2017 notice of disagreement (NOD), October 2018 statement of the case (SOC), and December 2018 appeal to the Board (Form 9). The issue of entitlement to a TDIU was not certified to the Board. The Veterans Appeals Control and Locator System (VACOLS) does not document receipt of the Veteran’s timely December 2018 substantive appeal, and it shows that the appeal was closed due to the Veteran’s failure to respond to the statement of the case. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. However, when an appeal is certified to the Board for appellate review and the record is transferred to the Board, the Veteran and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304 (a). As the required notifications have not been sent in regard to the VA Form 9 filed in December 2018, the Board declines to take any further action on that issue at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). The matter is referred to the RO for appropriate development. 1. Whether new and material evidence has been submitted to reopen previously denied claim of service connection for a seizure disorder, (claimed as epilepsy) Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. The evidence must also raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, instead of limiting consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, VA should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of history, the Veteran’s claim was denied in a March 2001 rating decision. The Veteran did not appeal that decision and it became final. In June 2008, the Veteran submitted a request to reopen the previously denied claim of service connection for epilepsy. In January 2009, the Veteran’s claim was denied because no new and material evidence was submitted to warrant the reopening. The Veteran did not appeal that decision and it became final. In August 2013, the Veteran again requested to reopen his claim of service connection for epilepsy. A June 2014 rating decision denied reopening the claim. The Veteran did not appeal that decision and it became final. In July 2015, the Veteran again requested to reopen his claim of service connection for epilepsy. A July 2015 rating decision denied reopening the claim. The Veteran did not appeal that decision and it became final. In September 2016, the Veteran requested service connection for seizures. A January 2017 rating decision denied reopening the claim of service connection for seizures, which had also been claimed as epilepsy, because no new and material evidence had been submitted. In March 2017, the Veteran submitted a notice of disagreement (NOD) regarding the January 2017 rating decision and has consistently pursued his appeal. In November 2019, the Board denied reopening the claim as it found no new and material evidence had been submitted to warrant the reopening. The Veteran appealed that decision to CAVC and CAVC granted a JMR that requested the vacatur of the November 2019 Board decision and remanded the claim for further adjudication. The Board notes the July 2015 rating decision became final as the Veteran did not present a timely NOD, in the required form, regarding that decision. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.201. The Veteran’s representative has presented arguments in favor of reopening the claim. In specific the representative argues that the Veteran’s treatment records suggest that the Veteran’s seizure disorder could be related to his headache disorder. The Veteran’s headaches are now service connected. As the arguments presented raise a reasonable possibility of substantiating the claim of service connection for a seizure disorder, and these arguments had not previously been before the RO, the Board finds the reopening of the claim is warranted, to that extent only. REASONS FOR REMAND 1. Entitlement to service connection for a seizure disorder, as secondary to service-connected headaches, is remanded. The Veteran seeks service connection for a seizure disorder, as secondary to his service-connected headaches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In favor of the Veteran’s claim, the Veteran’s representative points to a treatment record from May 2017 that addresses the nature and cause of his seizure event and states in part that overall “none of the Veteran’s symptoms are suggestive or generalized seizures and the recorded purely subjective spells are interpreted as having a nonepileptic etiology, likely related to a primary [headache] disorder or to psychogenic causes.” See JMR; see also medical records for March 2017. The Board notes the Veteran’s STRs show he was separated from service, following a recommendation from a medical board, due in part to a diagnosis of a seizure disorder. See STRs. The Veteran’s post service medical records show that he has at times been diagnosed with a seizure disorder and at times his seizure-like symptoms seem to have been attributed to his headaches. See generally medical records. The Veteran has not been afforded a VA examination regarding his seizure disorder. Based on all of the above, the Board finds a remand is necessary to provide the Veteran with an examination and medical opinion regarding his claimed seizure disorder and whether the Veteran’s seizure disorder is caused by or aggravated by his service-connected headaches. 2. Entitlement to service connection for Dercum's disease is remanded. The Veteran’s seeks service connection for Dercum’s disease. Dercum’s disease is also called adiposis dolorosa, which is defined as “nodular circumscribed lipomatosis in which the adipose deposits are tender or painful.” Dorland’s Illustrated Medical Dictionary 579 (32nd ed. 2012). The Veteran’s medical records show he has a current diagnosis for the condition. In his NOD, the Veteran’s representative asserted that the Veteran was entitled to service connection for Dercum’s disease as one of the foremost experts on fat disorders- a Board-certified endocrinologist, had written a letter in support of the Veteran’s claim opining that it was at least as likely as not that the Veteran’s disease began in and was aggravated by service. See NOD and additional arguments dated April 2018. The Veteran’s representative also submitted a partially legible letter, dated March 2018, signed by Dr. H, that in part noted Dercum’s disease is inherited in an autosomal dominant manner and that it is likely the Veteran had the disease his entire live. See letter signed by Dr. H, dated March 2018 and associated with the claims file in April 2018. The Board notes that following the NOD, the RO issued a Statement of the Case (SOC) regarding the claim noting the evidence submitted, including the medical letter by Dr. H, and determined that as the condition is a hereditary disease; it is not covered under the applicable legislation for disability compensation purposes. Furthermore, they also noted that the evidence does not show an event, disease or injury in service and that the Veteran’s service treatment records do not show treatment, complaints or diagnosis for the condition in service. Thus, they could not find a link between the condition and the Veteran’s military service and that the evidence did not show that the Veteran condition resulted from or was aggravated by a service-connected disability. See SOC. As particularly relevant to the case at hand, every Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as “noted” for the purpose of this analysis. 38 C.F.R. § 3.304 (b). If a condition is not “noted” upon entrance into service, VA must rebut the presumption of soundness by showing clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran, and not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. Congenital or developmental “defects” automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303 (c), 4.9. Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such “defects,” because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). However, VA’s Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested in or was aggravated by service). See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is “more or less stationary in nature,” while a disease is “capable of improving or deteriorating.” See VAOPGCPREC 82-90 at para. 2. As noted above, the presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303 (c); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. However, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA’s Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted and, if so, whether there was aggravation during service. Id. at 395. The Board notes the Veteran has not been afforded a VA examination and opinion regarding his condition. The Board further notes that although the medical evidence submitted in April 2018 categorizes the condition as hereditary; it does not seem to make a distinction or a notation regarding whether it is a defect or a disease. See letter signed by Dr. H, dated March 2018 and associated with the claims file in April 2018. The Veteran’s representative has asserted that the Veteran’s condition is a disease subject to compensation because it is a disease with the capacity of improvement or worsening. See additional arguments titled “Remarks to Statement of the Case dated February 25, 2020” submitted with the Form 9. This document also contains an argument that the Veteran’s condition has both a genetic and an environmental component and that the Veteran began suffering from symptoms while in service. The Board notes the Veteran’s report of medical examination for enlistment shows a mainly normal examination, with no disqualifying defects or communicable diseases noted, and with the only noted conditions of an appendectomy scar and a hydrocele. See report of medical examination for enlistment dated December 1976. Based on all of the above, the Board finds a remand is warranted so that the Veteran is afforded a VA examination regarding his Dercum’s disease. The examiner is asked to opine whether the Veteran’s condition is a defect or a disease, and whether it began in service or was otherwise aggravated by the Veteran’s service. Additionally, the Board notes that in November 2019, the Veteran’s representative informed VA that the Veteran received treatment for his Dercum’s disease from Dr. H. See correspondence of November 2019. It is unclear if VA has attempted to obtain these records and whether the Veteran was provided an appropriate release form for VA to obtain these records from Dr. H. Upon remand, a release form authorizing VA to obtain these records must be obtained and the records must be associated with the claims file. The matters are REMANDED for the following action: 1. Update existing medical records. All responses must be associated with the claims file. 2. Send the Veteran a VA Form 21-4142, Authorization and Consent to Release Information, to enable VA to obtain any relevant private medical records of treatment related to his treatment or diagnosis of Dercum’s disease from Dr. H. Any and all records obtained must be associated with the claims file, including any negative response. 3. Request the Veteran or his representative, to resubmit a pristine (i.e. completely legible) copy of the medical opinion by Dr. H, dated March 2018 and associated with the claims record in April 2018. 4. Schedule the Veteran for an examination regarding his seizures. The examiner is asked to opine: a. whether the Veteran has a current diagnosis of a seizure disorder, b. whether the Veteran’s seizure-like symptoms are part and parcel of his service-connected headaches, c. whether the Veteran’s seizure disorder is caused by or aggravated beyond its natural progression by his service-connected headaches. The examiner must opine on both causation and aggravation. If aggravation is found, the examiner must try to describe the baseline disability prior to it. 5. Schedule the Veteran for an examination regarding his Dercum’s disease from an endocrinologist or any other appropriate specialist. The examiner is asked to opine: a. Whether the Veteran’s diagnosed condition of Dercum’s disease is a hereditary/genetic defect or disease. b. If the condition is found to be a disease, i. whether there is clear and unmistakable evidence that the condition pre-existed service. The examiner must identify the medical evidence that clearly and unmistakably demonstrates that it preexisted service. ii. whether the disease first manifested in service and iii. whether there is clear and unmistakable evidence that the Veteran’s condition was not aggravated by the Veteran’s service beyond its natural progression. If so, the examiner must identify the medical evidence that clearly and unmistakably demonstrates that it was not aggravated by service. c. if the condition is found to be a defect, the examiner must opine i. whether there was any superimposed disease or injury onto the condition by the Veteran’s service. d. The examiner must also address the Veteran’s contention that his condition has an environmental component. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 6. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.