Citation Nr: 21013157 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-27 132 DATE: March 8, 2021 ORDER As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for a seizure disorder, to include as secondary to service-connected obsessive-compulsive disorder (OCD), is reopened and to that extent only the appeal is granted. REMANDED Service connection for a seizure disorder, to include as secondary to service-connected OCD, is remanded. Service connection for a stroke, to include as secondary to service-connected OCD is remanded. Service connection for a heart condition, to include as secondary to OCD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 10, 2013, is remanded. FINDINGS OF FACT 1. In an unappealed March 2015 rating decision, the Regional Office (RO) denied service connection for tetany seizures finding there was no evidence that the condition occurred during service, nor that the Veteran’s symptoms at the time of his claim were causally related to service. 2. Additional evidence received since the RO’s March 2015 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a seizure disorder, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s March 2015 rating decision regarding the claim of service connection for a seizure disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for a seizure disorder. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to February 1973. These matters come to the Board of Veterans’ Appeals (Board) on appeal from February 2013 and October 2018 rating decisions issued by the Department of Veterans’ Affairs (VA) Regional Office (RO). By way of background, the RO denied service connection for tetany seizures in an unappealed March 2015 rating decision. In an October 2018 rating decision, the RO denied service connection for a stroke and heart condition while also continuing the denial of service connection for tetany seizures finding the evidence submitted was not new and material. The Veteran timely appealed bringing the matters to the Board. The RO’s decision to reopen the claim is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issue has been appropriately recharacterized above. Simultaneously, as part of an increased rating claim, the Board inferred a TDIU claim as part of the April 2018 decision remanding the matter for additional development. Following said development, the RO granted a TDIU effective June 10, 2013 in an April 2020 rating decision. The matter returned to the Board to determine whether a TDIU should be granted prior to June 10, 2013. In an August 2020 decision, the Board remanded the matter for extraschedular consideration before the VA’s Director of Compensation. In a December 2020 Supplemental Statement of the Case (SSOC), the RO denied a TDIU prior to June 10, 2013, returning the matter to the Board. The Board has merged the Veteran’s pending appeals thereby taking jurisdiction of all of his outstanding issues on appeal. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for a seizure disorder, to include as secondary to service-connected OCD, is reopened and to that extent only the appeal is granted. In March 2015, the RO denied the Veteran’s service connection claim for a seizure disorder. At that time, the RO found the evidence of record did not show that the Veteran had a seizure disorder that occurred during service nor that the Veteran’s symptoms at the time of his claim were causally related to service. The RO notified the Veteran of its decision and the Veteran’s appellate rights. The Veteran did not initiate an appeal of the RO’s decision within one year nor submit additional evidence within one year of the RO’s decision. As a result, the RO’s March 2015 rating decision became final. The Veteran’s service connection claim for a seizure disorder may only be considered on the merits if new and material evidence has been received since the time of the prior adjudication. The Veteran filed a petition to reopen this claim in June 2018 contending that the additional evidence of record since the March 2015 rating decision is new and material. The Board agrees and finds reopening the claim is warranted. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. Evidence of record at the time of the final March 2015 rating decision included the Veteran’s service treatment records (STRs) from 1969 to 1973 and post-separation records from the VA from 1996 through 2015. The Veteran’s STRs lacked a diagnosis of a seizure disorder. The post-service records did indicate a history of seizures but lacked characterization. Evidence added to the claims file after the March 2015 rating decision included additional post-separation VA treatment records as well as medical articles cited by the Veteran’s representative. The additional treatment records reflect continued reports of seizures with attempts to characterize said seizures through various testing and consultations. In particular, August 2016 VA treatment records reference a diagnosis of “stress seizures.” The medical article submitted by the Veteran’s representative suggests tetany seizures are associated with hypocalcemia with cases where hypocalcemia manifests as a mental health disorder. The Veteran’s treatment records reflect a vitamin D deficiency. A diagnosis of stress seizures and evidence of an association between hypocalcemia and tetany seizures when the Veteran has been noted to have a vitamin D deficiency relates to unestablished elements of service connection. Specifically, whether the Veteran’s seizure disorder was caused or aggravated by his service-connected OCD. Thus, for the purposes of reopening, this evidence is both “new” and “material” as these are not duplicative, not cumulative, and raise a reasonable possibility of substantiating the Veteran’s service connection claim for a seizure disorder. As such, the Veteran’s claim of service connection for a seizure disorder, to include as secondary to service-connected OCD is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a seizure disorder, to include as secondary to service-connected OCD, is remanded. The Veteran contends he has a seizure disorder that began during service and has continued since separation, or in the alternative, is secondary to his service-connected OCD. The Board finds remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of any seizure disorder and its relation, if any, to service or the Veteran’s service-connected OCD. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In particular, the Veteran’s treatment records contain competent evidence of a history of seizures including a variety of attempts to characterize said seizures referring to them as absence seizures, tetany seizures, stress seizures, and pseudo seizures. The Board notes the record contains conflicting reports of onset including references to high school, service, and following separation. During service, the Veteran’s treatment records contain a notation of passing out in 1969 and 1972. Following separation, the Veteran’s treatment records reference multiple instances of “passing out” prompting further testing regarding a seizure disorder including in 1997. Additionally, the Veteran’s representative contends that medical research indicates tetany seizures are associated with hypocalcemia and there are cases where hypocalcemia manifests as a mental health disorder. The Veteran’s treatment records reflect a vitamin D deficiency. This contention remains unaddressed by a VA examiner. The evidence of record is insufficient to determine the nature and etiology of any seizure disorder and whether it is related to service, including the in-service incidents of passing out or secondary to his service-connected OCD. Thus, the Board finds VA’s duty to assist has been triggered, and the Veteran must be afforded a VA examination for his service connection claim for a seizure disorder, to include as secondary to service-connected OCD. 2. Entitlement to service connection for a stroke as secondary to service-connected OCD is remanded. The Veteran contends his stroke was caused or aggravated by his service-connected OCD. The evidence of record is insufficient to resolve his claim. The Veteran was afforded a VA examination in June 2018 wherein the examiner opined that the Veteran’s stroke was not caused by his service-connected OCD. The examiner, however, failed to render an opinion addressing whether the Veteran’s stroke was aggravated by his service-connected OCD. To this point, the Veteran’s representative submitted a medical article discussing mental health issues influencing heart disease and stroke which has not been addressed by an examiner. Thus, remand is necessary to obtain an opinion addressing aggravation specifically. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that a VA examination does not adequately address aggravation unless it rules out the possibility of aggravation). 3. Entitlement to service connection for a heart condition (claimed as heart disorder) as secondary to OCD is remanded. The Veteran contends he has a heart condition that was caused or aggravated by his service-connected OCD. The Board finds remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of any heart condition and its relation, if any, to the Veteran’s service-connected OCD. Upon review, the Veteran’s treatment records contained competent evidence of persistent or recurrent symptoms of a heart condition for which he continues to be evaluated. Recently, the Veteran was referred to cardiology for intermittent episodes of dizziness and blurred vision in March 2019. The Veteran previously reported experiencing three heart attacks. As previously mentioned, the Veteran is service connected for OCD which he contends caused or aggravated a heart condition. The Veteran’s representative submitted a medical article discussing an association between mental health disorders and heart conditions as well as stress being a risk factor for heart disease. There is insufficient competent medical evidence on file to determine the nature and etiology of any heart condition and whether it was caused or aggravated by the Veteran’s service-connected OCD. Based on the above, the Board finds a VA examination is necessary to reconcile whether the Veteran’s service-connected OCD caused or aggravated his claimed heart condition. 4. Entitlement to a TDIU prior to June 10, 2013, is remanded. As previously mentioned, the Veteran was granted a TDIU effective June 10, 2013. The remaining period on appeal is now before the Board following referral for extraschedular consideration. The Board finds entitlement to a TDIU during the remaining period on appeal is intertwined with the pending service connection claims being remanded for further development herein because the Veteran may meet the schedular criteria at an earlier date if service-connection should be granted for any of these pending claims. Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two or more issues are inextricably intertwined if one claim could have significant impact on the other). Of note, the record contains evidence related to contentions of unemployability as a result of the Veteran’s reported stroke and residuals thereof. Accordingly, a TDIU during the remaining period on appeal is remanded as inextricably intertwined. See Harris, 1 Vet. App. 180 (holding if a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any seizure disorder and its relation, if any, to service or to service-connected OCD. The claims file and this remand should be made available to the examiner for review. The examiner shall determine whether the Veteran has a seizure disorder. If the Veteran has a seizure disorder, the examiner shall render an opinion, including rationale, addressing the following: (a) Whether the Veteran’s seizure disorder “at least as likely as not” first incurred in service or within a year of service; In consideration of this inquiry, the examiner is directed to specifically address the conflicting reports in the record regarding the onset of the Veteran’s symptoms, such as statements indicating he first experienced seizures in high school, versus statements indicating his onset was in-service, versus statements that seizures began after service. The examiner is also directed to consider in-service records of “passing out” in 1969 and 1972 as well as post-separation documented reports of “passing out.” The examiner shall also address the medical article submitted by the Veteran’s representative suggesting an association between tetany seizures and hypocalcemia manifesting as a mental health disorder in consideration of the Veteran’s treatment records reflecting a vitamin D deficiency. A complete rationale for any opinion expressed should be provided. (b) To the extent the Veteran’s seizure disorder did not first manifest in service or within a year of service, whether the Veteran’s seizure disorder is nonetheless at least as likely as not (50 percent or greater probability) related to service, to include the in-service documented episodes of “passing out” and in service records reflecting a vitamin D deficiency. (c) Alternatively, whether the Veteran’s seizure disorder was caused or aggravated by his service-connected OCD. In addition to the above considerations, the examiner shall also address the medical article submitted by the Veteran’s representative in context of the mental health disorder claimed connection. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Return the entire claims file and this remand to the June 2018 VA examiner, if available, or to an appropriate examiner for review. The necessity of an in-person examination is left to the discretion of the examiner. The examiner shall issue an addendum opinion, including rationale, addressing whether it is at least as likely as not (50 percent or greater probability) the Veteran’s stroke was aggravated by his service-connected OCD. The examiner is specifically directed to address the medical article submitted by the Veteran’s representative in October 2019 discussing association between mental health disorders and heart conditions and stroke. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any heart condition. The claims file and this remand should be made available to the examiner for review. If the Veteran has a heart condition, the examiner shall issue an opinion, including rationale, addressing whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected OCD caused or aggravated his heart condition. The examiner is specifically directed to address the medical article submitted in October 2019 discussing an association between mental health disorders and heart conditions as well as stress being a risk factor for heart disease. The examiner is also directed to address the Veteran’s repeated reports of symptoms including dizziness, chest pain, and blurred vision as well as his November 2010 statement of having a history of three heart attacks. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After the above development, and any other development deemed necessary, readjudicate the claims including the inextricably intertwined TDIU claim for the time period prior to June 10, 2013. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.