Citation Nr: 21013158 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-25 064 DATE: March 8, 2021 ORDER An increased (compensable) rating for heat intolerance is denied. REMANDED Entitlement to service connection for a seizure disorder is remanded. FINDING OF FACT During the entire period on appeal, the Veteran’s heat intolerance did not manifest by a chronic fatigue syndrome (CFS) that has waxed and waned but resulted in at least a one-week-per-year combined period of incapacitation that required bedrest accompanied by treatment by a physician or produced symptoms that had to be controlled by continuous medication. CONCLUSION OF LAW The criteria for a compensable rating for heat intolerance have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.88b, Diagnostic Code (DC) 6354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1996 to June 1998. In July 2020, the March 19, 2019 Board of Veterans’ Appeals (Board) decision that denied a compensable rating for heat intolerance and remanded a service connection claim for seizures was vacated. The Board notes that additional medical records, VA examinations, and the transcript of the January 2021 Board hearing have been added to the record since the last supplemental statement of the case was issued in March 2017. Initial RO consideration of additional evidence submitted subsequent to a substantive appeal (VA Form 9) received after February 2, 2013, is automatically waived unless the veteran requests in writing that the RO initially review such evidence. 38 U.S.C. § 7105 (e) (2012). An increased (compensable) rating for heat intolerance Here, the evidence of record demonstrates that, in May 1997, while helping heat casualties, the Veteran himself suffered a heat stroke. In November 2008, he applied for disability-compensation benefits for heat intolerance. In July 2009, the RO awarded service connection for this disability, under Diagnostic Code (DC) 6399-6354. A noncompensable evaluation was assigned. The “6399” portion of the DC utilized to rate the Veteran’s heat intolerance indicated that the disability was not listed in the Schedule for Rating Disabilities since it was rated by analogy with a closely-related disease or injury. 38 C.F.R. §§ 4.20, 4.27. Here, the RO determined that the closely-related disease was CFS, and the Veteran has not challenged that determination. Therefore, the “6354” portion of the DC utilized to rate the Veteran’s heat intolerance referred to DC 6354 that governs CFS ratings. Under DC 6354, a 10 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or symptoms that are controlled by continuous medication. A 20 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. See 38 C.F.R. § 4.88b, DC 6345. Finally, Note to DC 6345 clarifies that “the condition is considered incapacitating only while it requires bedrest and treatment by a physician.” Id., Note. The Veteran contends that his heat intolerance disability has limited his employment opportunities because he would be unable to work in an environment that had high temperatures, such as a factory, a warehouse, or a restaurant kitchen. See April 2010 statement from the Veteran. In his April 2015 notice of disagreement (NOD), the Veteran asserted that the evaluation of his heat intolerance disability should be increased to 60 percent disabling based on his limited employment opportunities and his inability to conduct any activity in an environment with the temperature rising above 70 degrees, since there were many days when he could not leave his bed for unspecified “periods of time” and found it difficult to leave his house. January 2009 post-service treatment records show the Veteran’s reports that occasionally, his fatigue was more frequent during the summer months. During a July 2013 VA examination, he reported that he was experiencing heat intolerance every summer, clarified that he felt flushed, had headaches, and felt dizzy, and stated that he had also been experiencing the same symptoms in an air-conditioned environment. Further, during the July 2013 VA examination, he reported that: (1) when the outdoor temperatures ranged from mid to upper 90 degrees, he could not play golf; and (2) he stopped fishing during the summertime since he could not be outdoors when the temperatures were above 80 degrees. (The Board notes that the temperature reports as to the summer of 2013 at the location where the Veteran resided were incorporated into the July 2013 VA examination report by the examiner, albeit this information is a public record.) In July 2014, during a psychological assessment in connection with his depressive disorder, the Veteran reported experiencing fatigue and that he “just want[ed] to sit on the couch.” In January 2016, his treating practitioner recorded that the Veteran experienced fatigue after repeating 10 left and 10 right “mule kicks.” Further, during his April 2016 counseling session, the Veteran’s consultant: (1) recorded his report that he made sure to exercise lightly and get plenty of rest at night; (2) observed that the Veteran “may have diminished focus/attention in performing work tasks due to fatigue” and, thus, could benefit from a flexible work schedule. The Veteran was afforded another VA seizure disorder examination in January 2020. No symptoms of his heat intolerance disorder were reported. The record, however, does not contain any evidence indicating –and the Veteran has not asserted –that his heat intolerance has manifested by symptoms that had to be controlled by continuous medication or resulted in periods of incapacitation of a combined yearly duration of at least one week when he required treatment by a physician and bedrest. Moreover, while the Veteran’s post-service treatment records reflect his systemic reports and his diagnosis of fatigue, the evidence does not demonstrate that his fatigue required treatment by a physician at any point. Thus, while the Board acknowledges the Veteran’s assertion that his disability necessitates periods of rest, limits his employment opportunities, prevents him from enjoying certain summertime recreational activities, and requires him to monitor the vigor of his daily exercise, the evidence does not show that the severity of his disability warrants a compensable rating. Specifically, there is no evidence showing that his fatigue results in combined yearly periods of incapacitation of at least two or more weeks, or that his fatigue is nearly constant and restricts his routine daily activities. Therefore, the benefit of the doubt doctrine is inapplicable, and his claim for an increased (compensable) rating is denied as to the entire period on appeal. REASONS FOR REMAND Entitlement to service connection for a seizure disorder is remanded. The Veteran was afforded a VA examination and medical opinion in July 2013. The VA examiner diagnosed him with generalized convulsive seizures. The examiner, however, clarified that: (1) upon reviewing his service treatment records (STRs), she could not find support for his statement that he had a history of heat exhaustion prior to the May 1997 heat stroke; (2) the Veteran’s separation-from-service examination indicated that he had no residuals of his heat stroke; (3) his separation-from-service examination lacked a notation that he had seizures in service, and the STRs did not reflect that he suffered a seizure at the time of his heat stroke; (4) the Veteran wrote “I am in good health” during his separation-from-service examination; and (5) she could not locate any medical record indicating that he was evaluated or treated for a seizure disorder prior to his April 2013 evaluation by a neurologist, i.e., 15 years after his discharge. Basing her opinion predominantly on the absence of medical records as to a seizure from his discharge to April 2013, and noting that “[m]oderate[-]to[-]severe residual neurological deficits in classic heat stroke [are such that] an individual can recover from these deficits with appropriate treatment [and l]ong[-]term effects of heat stroke are rare,” the examiner found that it was less likely than not that this disability was caused by or related to the Veteran’s service or his heat intolerance. The Board’s review of the evidence of record determined that: (1) the Veteran has consistently reported that his seizure episodes included loss of consciousness, followed by fatigue and inability to recall what occurred during these episodes or how long the episodes lasted; (2) the record of his May 1997 heat stroke shows that he experienced loss of consciousness during that incurrence and, thus, it cannot be ruled out that he had a seizure; (3) his separation-from-service examination included his report of a history of unconsciousness and the examiner’s clarification that the reported unconsciousness was related to the Veteran’s memory loss, hence suggesting that the Veteran might have experienced other in-service episodes; and (4) three years prior to the Veteran’s April 2013 neurological examination, i.e., during his March 2010 examination in connection with his back pain, his seizure disorder was recorded as an already-established diagnosis. In its March 2019 remand, the Board found the July 2013 VA examiner’s examination inadequate and her opinion not probative. In this regard, the examiner’s reflections on the alleged lack of in-service record as to the Veteran’s heat exhaustion prior to his heat stroke are neither relevant to the issue of his seizure disorder nor accurate, given that: (1) the STRs reflect his report of a history of heat exhaustion; and (2) his separation-from-service examination reflects the examiner’s notation that he had two seizure episodes within days of suffering from heat exhaustion. Further, the Veteran’s statement “I am in good health” written during his separation-from-service examination cannot be taken at face value given that he simultaneously: (1) reported numerous health conditions; and (2) was referred to a Medical Examination Board is light of the severity of these medical conditions. Moreover, the July 2013 VA examiner’s assertion that the Veteran had no medical records reflecting symptoms of or treatment for seizure until April 2013, failed to consider that by March 2010 his seizure disorder was already well-established, indicating that her review of the Veteran’s claims file was not thorough, and the facts she relied upon were not accurate. Finally, while the July 2013 VA examiner opined as to commonality of residual neurological deficits of a heat stroke, she failed to provide an opinion as to those residuals that are rare, given that it cannot be ruled out that the Veteran has one of those rare conditions. In accordance with the Board’s March 2019 remand, the Veteran was afforded another VA examination and medical opinion in January 2020. The examiner noted that in review of medical information regarding a relationship between heat stroke and seizure, it is noted that the seizure may occur when the internal body temperature reaches 104 degrees, much like what can occur with febrile seizure in a child. Once the fever has been reduced, the likelihood of seizure from heat exposure is not present. The heat stroke was immediately recognized and treated. Treatment was not delayed. The examiner opined that it is unlikely that the Veteran suffered any degree of brain damage related to his heat stroke. The examiner also concluded that the Veteran had no evidence of seizure activity when he had his heat stroke in 1997. This was not diagnosed for many years after separation from the military and appears to be based on the Veteran’s description of his symptoms. There is no clinical evidence to support the cause of the Veteran's reported seizures. This is not uncommon with this diagnosis. The examiner found, as did the July 2013 examiner, that Veteran had no evidence of seizure activity when he had his heat stroke in 1997. However, as noted in March 2019 remand, (1) the STRs reflect the Veteran’s report of a history of heat exhaustion; and (2) his separation-from-service examination reflects the examiner’s notation that he had two seizure episodes within days of suffering from heat exhaustion. Moreover, the January 2020 VA examiner’s assertion that the Veteran’s seizure disorder was not diagnosed for many years after separation from the military and appears to be based on the Veteran’s description of his symptoms failed to consider that by March 2010 his seizure disorder was already well-established. In addition, the Board finds troubling the examiner’s findings that it is unlikely that the Veteran suffered any degree of brain damage related to his heat stroke seeing as though he has been granted service connection for headaches (a neurological disorder), secondary to his service-connected heat intolerance disorder. Based on this evidence, the Board finds the January 2020 examiner’s opinion was based on an inaccurate factual premise, and is therefore, inadequate for evaluation purposes. In light of the foregoing, although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide his claim based on a seizure disorder. 38U.S.C. § 5103A; 38C.F.R. § 3.159. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims file/e-folder. 2. After completing Step 1 and any other development deemed necessary, schedule the Veteran for an appropriate VA examination to assist in identifying the nature and etiology of his seizure disorder. The entire claims file should be made available to the examiner. The examiner’s attention is expressly drawn to the Veteran’s reports that his seizure episodes are usually accompanied by periods of unconsciousness and loss of memory, and followed by periods of sweat and fatigue. If the VA examiner finds that a physical examination is warranted, then an examination should be scheduled. If an examination is scheduled, all appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported. 3. After completing Step 2 and any other development deemed necessary, readjudicate the claim of entitlement to service connection for a seizure disorder, in light of the new evidence. If the benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity to respond. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.