Citation Nr: 21004743 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-28 642A DATE: January 28, 2021 ORDER Entitlement to an effective date prior to April 9, 2009, for the grant of a 100 percent evaluation for seizure disorder (now claimed as a neurological disorder) is denied. REMANDED Entitlement to service connection for left hand pain/numbness is remanded. Entitlement to service connection for right hand pain/numbness is remanded. Entitlement to service connection for numbness and tingling of the left foot, to include as secondary to the service-connected seizure disorder, is remanded. Entitlement to service connection for numbness and tingling of the right foot, to include as secondary to the service-connected seizure disorder, is remanded. Entitlement to service connection for numbness of the left side of the face and body, to include as secondary to the service-connected seizure disorder, is remanded. Entitlement to service connection for a skin rash is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for excessive tiredness, to include as secondary to the service-connected seizure disorder, is denied. Entitlement to an evaluation greater than 10 percent for residual scarring status post-brain surgery to treat the service-connected seizure disorder is remanded. FINDING OF FACT The Veteran’s claim for an increased evaluation for his service-connected rating decision was received on April 9, 2009, and there are no other claims for an increase or relevant evidence prior to this date. CONCLUSION OF LAW The criteria for an effective date prior to April 9, 2009, for the grant of a 100 percent evaluation for seizure disorder (now claimed as a neurological disorder) have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from July 1988 to December 1991. His personnel records indicate that he was deployed to Saudi Arabia for 6 months from October 1990 to April 1991. These matters are on appeal from various rating decisions. The Veteran testified at a Board of Veterans’ Appeals (Board) hearing in April 2018. In September 2018, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. Entitlement to an effective date prior to April 9, 2009, for the grant of a 100 percent evaluation for seizure disorder (now claimed as a neurological disorder). The Veteran contends that he is entitled to an effective date of April 1992 for the grant of a 100 percent evaluation for a seizure disorder (now claimed as a neurological disorder). He asserts that this is the proper effective date because that is when he had his surgery to treat his seizure disorder. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Under applicable laws and regulations, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper, 10 Vet. App. at 125; 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). Furthermore, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. See Servello, 3 Vet. App. at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. Id. at (b)(2). On April 20, 2006, VA received the Veteran’s initial claim for entitlement to service connection for seizures. Pursuant to an April 2007 rating decision, the Veteran was granted service connection for a seizure disorder and granted a 10 percent evaluation, effective April 20, 2006. On April 9, 2009, the Veteran filed a claim for an increased evaluation for his service-connected seizure disorder. Subsequently, in a February 2010 rating decision, the Veteran was granted a 20 percent rating for his seizure disorder, effective April 10, 2009. In January 2011, the Veteran filed a notice of disagreement with the February 2010 rating decision. In November 2017, the AOJ granted a 40 percent evaluation, effective July 11, 2017, for the Veteran’s service-connected seizure disorder and issued a statement of the case. The Veteran filed a notice of disagreement in December 2017. On May 30, 2018, VA received a claim of entitlement to an earlier effective date for seizures. On October 22, 2018, the AOJ granted the Veteran a 100 percent disability evaluation for his seizure disorder effective May 30, 2018. The Veteran submitted a timely notice of disagreement with the effective date in November 2018. The AOJ issued a statement of the case in July 2019. In August 2019, the Veteran submitted a timely VA Form 9 to perfect his appeal. Finally, in May 2020, the AOJ granted a 100 percent evaluation for the Veteran’s seizure disorder (now claimed as a neurological disorder), effective April 9, 2009. The Veteran did not submit a notice of disagreement with the April 2007 rating decision. April 9, 2009, is the date of the Veteran’s first increased rating claim for his service-connected seizure disorder. The Board notes that there is no lay or medical evidence of record after the April 2007 rating decision that pertains to the Veteran’s seizure disorder. Therefore, April 9, 2009, is the earliest claim for an increased rating and is the earliest assignable effective date under the law. An effective date prior to April 9, 2009, for the grant of a 100 percent evaluation for seizure disorder (now claimed as a neurological disorder) is denied. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS FOR REMAND 1. Entitlement to service connection for left hand pain/numbness is remanded. 2. Entitlement to service connection for right hand pain/numbness is remanded. 3. Entitlement to service connection for numbness and tingling of the left foot, to include as secondary to the service-connected seizure disorder, is remanded. 4. Entitlement to service connection for numbness and tingling of the right foot, to include as secondary to the service-connected seizure disorder, is remanded. 5. Entitlement to service connection for numbness of the left side of the face and body, to include as secondary to the service-connected seizure disorder, is remanded. In September 2018, the Board remanded the claims of entitlement to service connection for right hand pain/numbness, left hand pain/numbness, numbness and tingling of the left foot, numbness and tingling of the right foot, and numbness of the left side of the face and body to afford the Veteran VA examinations to determine the nature and etiology of his disabilities. In April 2019, the Veteran was afforded VA examinations. The VA examiner found that the Veteran did not have numbness on the left side of his face and determined that he did not have a current disability. However, a June 2010 VA treatment note shows a diagnosis for well-healed scarring with residual cutaneous neuropathy status post brain surgery to treat a seizure disorder. A remand is required to clarify whether the Veteran has had facial numbness as a result of his seizure disorder during the appeal period. With regard to the Veteran’s other claims, the VA examiner explained that there is no medical pathophysiologic relationship between the Veteran’s seizure disorder and the related brain surgery causing or leading to neuropathy since they are both anatomically different physiological systems. The Board finds that this rationale is insufficient because it is conclusory. The January 2019 VA neurology note shows status post arteriovenous malformation with right frontal encephalomalacia. The VA examiner failed to explain which physiological processes these condition affect. A remand is required to obtain an adequate addendum opinion. 6. Entitlement to service connection for a skin rash is remanded. In April 2019, the Veteran was afforded a VA skin examination. The VA examiner opined that he Veteran’s dermatitis was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner acknowledged the Veteran’s in-service burn pit exposure and his lay statements regarding an in-service rash. The sole rationale is that a rash is not documented in the service treatment records. Therefore, the opinion is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006). A remand is required to obtain an adequate medical opinion that addresses the Veteran’s lay statements regarding an in-service rash and his in-service burn pit exposure. 7. Entitlement to service connection for hepatitis C is remanded. In April 2018, the Veteran testified that his hepatitis C was caused by his in-service exposure to burn pits and tattoos. In April 2019, the Veteran was afforded a VA examination. The VA examiner indicated that the Veteran was diagnosed with hepatitis C in 1992. He indicated that it was unknown whether the Veteran had risk factors for hepatitis C. The Veteran’s hepatitis C antibody result was reactive. The VA examiner opined that it was less likely than not that the Veteran’s hepatitis C was incurred in or caused by the claimed in-service injury, event, or illness. He summarized the Veteran’s history of seizures during his active service and indicated that there was no evidence of tattoos in-service or burn pit exposure. The Board finds that this is inadequate because it does not address the Veteran’s contentions. The Veteran is competent to report that he received a tattoo during active service and his personnel records indicate that he served in Southwest Asia during the Gulf War. His reports of burn pit exposure are consistent with the circumstances of his service. A remand is required to obtain an adequate medical opinion that addresses the Veteran’s contentions. 8. Entitlement to service connection for excessive tiredness, to include as secondary to the service-connected disabilities, is remanded. In September 2018, the Board remanded the Veteran’s claim to afford him a VA examination to determine whether his excessive tiredness was caused or aggravated by his service-connected seizure disorder. In April 2019, the Veteran underwent a VA examination. The VA examiner indicated that there was no pathology or diagnosis to render an opinion because the Veteran did not meet the criteria for chronic fatigue syndrome. However, February 2019 VA treatment records show a diagnosis for hypersomnia with sleep apnea. The evidence demonstrates that the Veteran has a current disability. Therefore, a remand is required to obtain an addendum opinion to address whether the Veteran’s hypersomnia with sleep apnea was caused or aggravated by his service-connected disabilities. 9. Entitlement to an evaluation greater than 10 percent for residual scarring status post brain surgery to treat the service-connected seizure disorder is remanded. In December 2020, the Veteran’s representative argued that the Veteran’s scars have worsened in severity since the August 2018 VA examination. The Veteran underwent a VA skin examination in April 2019. However, the VA examiner did not evaluate the severity of the Veteran’s service-connected scars at that time. Therefore, a remand is required to determine the severity of the Veteran’s residual scarring status post brain surgery to treat the service-connected seizure disorder. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any eye condition. The examiner must opine whether it is at least as likely as not that any of the Veteran’s diagnosed eye conditions are (1) proximately due to the service-connected seizure disorder and related brain surgery, or (2) aggravated beyond their natural progression by the service-connected seizure disorder and related brain surgery. In rendering the opinions, the VA examiner is asked to address the June 2010 VA treatment note that shows a diagnosis for well-healed scarring with residual cutaneous neuropathy status post brain surgery to treat a seizure disorder and the January 2019 VA neurology note that shows status post arteriovenous malformation with right frontal encephalomalacia. The VA examiner must explain which physiological processes these conditions affect. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s dermatitis is at least as likely as not related to his in-service rash and/or in-service burn pit exposure. The sole rationale for the opinion may not be the absence of documentation in the Veteran’s service treatment records. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hepatitis C is at least as likely as not related to his in-service tattoo and/or in-service burn pit exposure. The sole rationale for the opinion may not be the absence of documentation in the Veteran’s service treatment records. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypersomnia with sleep apnea is at least as likely as not (1) proximately due to the service-connected disabilities, or (2) aggravated beyond their natural progression by the service-connected disabilities. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residual scarring status post brain surgery to treat the service-connected seizure disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, Counsel 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.