Citation Nr: 21075283 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-12 083 DATE: December 20, 2021 ORDER Entitlement to service connection for imbalance, to include as due to service- connected seizure disorder, is denied. REMANDED Entitlement to service connection for a psychiatric disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDING OF FACT The evidence of record does not show that the Veteran has a current diagnosis of imbalance that is separate and distinct from symptoms of his service-connected seizure disorder or his nonservice-connected knee disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for imbalance is denied. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had period of active duty for training (ACDUTRA) from October 1978 to February 1979 in the United States Army Reserve. This case comes before the Board of Veterans' Appeals on appeal of a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This case was previously before the Board in July 2020, at which time the issues currently on appeal were remanded for additional development. This case has been returned to the Board for further appellate action. Service Connection Imbalance The Veteran asserts that his imbalance is related to his active service. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of imbalance while the Veteran was in active service. In September 2015, the Veteran was afforded a VA examination for ear conditions. At that time, the Veteran stated that he occasionally felt off balance as a result of his nonservice-connected knee disabilities. The VA examiner found that the Veteran did not have a separate and distinct diagnosis of imbalance. Rather, the VA examiner found that the Veteran had imbalance as a symptom of his seizure disorder. In a November 2015 private opinion, Dr. R.M. opined that the Veteran likely had some osteoarthritis that could be caused, or made worse, by trauma from the falls that occur when he has a seizure. In a January 2016 private opinion, Dr. J.C. stated that the Veteran had a seizure disorder that caused him to lose consciousness and fall onto his knees and shoulders. Neither Dr. R.M. nor Dr. J.C. found that the Veteran had a diagnosis of imbalance that was separate and distinct from the symptoms related to his seizure disorder. A May 2019 treatment note documented the Veteran's report of a fall during a seizure that he had the month prior. In June 2021, the Veteran was afforded a VA examination for ear conditions. At that time, the Veteran denied an ear-related complaint of imbalance. Additionally, the VA examiner noted that the Veteran had no complaints of imbalance or other vestibulocochlear-related complaints. Further, the VA examiner stated that the Veteran clearly and with certainty during the examination reported that he had no complaints of imbalance beyond the gait encumbrance from his knees, and that his ear-related issues were related to his sense of hearing only. The Board finds that the June 2021 VA medical opinion is adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds that the Veteran does not have a current diagnosis of imbalance that is separate and distinct from symptoms related to his service-connected seizure disorder and nonservice-connected knee disabilities. As the Veteran is service-connected for seizures, the Board has considered whether a separate rating would be warranted for imbalance. However, under Diagnostic Code 8910, for grand mal epilepsy, the Veteran is compensated for major seizures characterized by automatic states and/or generalized convulsions with unconsciousness. As such, the Board finds that the Veteran's manifestation of imbalance, or falls, that occur when the Veteran loses consciousness cannot be awarded separately as that would be in violation of 38 C.F.R. § 4.14 (2020). For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In this case, there is no indication from the record that the Veteran has a disability manifested by imbalance that is separate and distinct from the symptoms of his service-connected seizure disorder, and contemplated by the rating assigned for that disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the preponderance of the evidence is against the claim, and entitlement to service connection for imbalance is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran has claimed entitlement to service connection for a psychiatric disability and a bilateral knee disability as secondary to his service-connected seizure disorder. Specifically, the Veteran has claimed that his seizure disorder causes various psychiatric symptoms, to include anxiety. The Veteran has also claimed that when he loses consciousness during a seizure, he often falls and injures his knees. In the July 2020 remand, the Board directed that the Veteran should be afforded a VA examination to determine the nature and of his seizure disorder, and to conduct any other development determined to be warranted. In particular, the Veteran has claimed entitlement to service connection for a psychiatric disability and a bilateral knee disability as secondary to his service-connected seizure disorder. In June 2021, the Veteran was afforded a VA psychiatric examination. At that time, it was noted that the Veteran did not meet the criteria for a diagnosis of a psychiatric disability. However, the examiner did not adequately account for the multiple diagnoses of psychiatric disabilities otherwise of record. As such, the June 2021 VA examination and medical opinion is inadequate for adjudication purposes. In a June 2021, the Veteran was afforded a VA examination for knee and lower leg conditions. At that time, the VA examiner noted that the Veteran had a diagnosis of degenerative arthritis in both knees since 1984. The VA examiner assessed that the Veteran's bilateral knee disability was less likely than not incurred in or caused by his active service. The VA examiner reasoned that although post-traumatic arthritis did indeed exist, that it was unlikely that that alone resulted in the need for bilateral total knee replacement without concurrent serious orthopedic trauma to the knee requiring separate attention. The Board finds that that June 2021 VA opinion is inadequate for adjudication purposes. In that regard, the VA examiner failed to address the Veteran's contention that his bilateral knee disability was the result of falls that were secondary to his seizures. As the opinion is inadequate, it cannot serve as the basis for denial to entitlement to service connection. Therefore, the Board finds that the Veteran should be afforded new VA examinations to determine the nature and etiology of any currently present psychiatric disability and knee disabilities present during the pendency of the appeal. Additionally, current treatment records should be identified and obtained before a decision is made regarding the remaining issues on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination by an examiner with appropriate expertise, who has not previously examined the Veteran or provided an opinion in the appeal, the determine the nature and etiology of his claimed psychiatric disability. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination of the Veteran and review of the record, the examiner must first identify all psychiatric disabilities present during the pendency of the appeal, or proximate thereto. Then, for each identified disability, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability was caused or aggravated by a service-connected disability, to specifically include the Veteran's seizure disorder. A complete and detailed rationale must be provided for all opinions expressed. 3. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present right and/or left knee disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right and/or left knee disability was caused or chronically worsened by a service-connected disability, to specifically include any falls resulting from the Veteran's loss of consciousness during a seizure. A complete and detailed rationale for all opinions expressed must be provided. 4. Confirm that all medical opinions provided comport with this remand, and then undertake any other development determined to be warranted. 5. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, Associate 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.