Citation Nr: 21022242 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-16 176 DATE: April 15, 2021 ORDER Service connection for a seizure disorder is denied. REMANDED The claim of entitlement to service connection for an acquired psychiatric disability, to include cyclothymic disorder is remanded. The claim of entitlement to a disability rating in excess of 10 percent for service-connected bilateral foot disability with bunions and callouses is remanded. FINDING OF FACT The probative evidence of record does not establish that the Veteran’s seizure disorder is etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for a seizure disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to October 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which, in part, found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for a seizure disorder, denied service connection for an acquired psychiatric disorder, and continued a 10 percent disability rating for the Veteran’s service-connected bilateral foot condition. The Veteran’s claims were most recently before the Board in September 2019. At that time, the Board reopened the previously denied claim of entitlement to service connection for a seizure disorder based on the submission of new and material evidence and remanded this claim as well as claims for a higher disability rating for the Veteran’s bilateral foot disorder and a total disability rating based on individual unemployability (TDIU) for more development. The Board also denied service connection for an acquired psychiatric disorder. With regard to the psychiatric disorder issue, the Veteran appealed the September 2019 Board decision denying service connection for an acquired psychiatric disorder to the United States Court of Appeals for Veterans Claims (Court). In November 2020, through a Joint Motion for Partial Remand (JMPR), the Court remanded the Veteran’s claim for action consistent with the JMPR. With regard to the TDIU issue, the Board took jurisdiction of this issue in September 2019 as part and parcel of the claim for an increased rating for the Veteran’s bilateral foot disorder pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Thereafter, by rating decision dated in TDIU, the RO granted a TDIU effective February 24, 2011. Significantly, the Veteran’s claim for an increased rating for his bilateral feet disorder has only been pending since September 2017 as he did not file a notice of disagreement with a December 2016 rating decision granting service connection and assigning an initial rating. Given this, the assignment of a TDIU since February 24, 2011 represents a full grant of benefits on appeal and the Board will not address it. 1. Service connection for a seizure disorder is denied. The Veteran contends that he has a seizure disorder that is etiologically related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Epilepsies is one such chronic disease. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a documented seizure disorder. Specifically, private treatment records dated as early as July 1997 show a diagnosis of a seizure disorder. Furthermore, the Veteran contends that he developed seizures in or within one year of discharge from service. Thus, the first two elements of service connection have been met. Shedden, supra. The Veteran’s service treatment records (STRs) are silent for any reports of seizure-like activity and the Veteran has not presented service-concurrent medical evidence suggesting that he had seizures during service. Rather, the Veteran has submitted recent medical evidence suggesting that he had seizures within one year after discharge from service such that his disorder would qualify as a chronic disability. Without addressing each piece of evidence that suggests that the Veteran has had a seizure disorder since service or shortly thereafter, the Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report that he has seizures and the onset of the seizures. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds the relationship of seizures to service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a diagnosis or connection between the two. While the Board finds the Veteran competent to report when his seizures started, the Board finds other evidence to be more probative. The Veteran submitted a number of documents from Phoebe Putney Memorial Hospital. In one of the earliest medical records, dated in July 1997, it was noted that the Veteran’s seizure disorder was first documented approximately six years prior in 1991, more than 10 years after his discharge from service. While the Veteran contends that his seizures first began in service and, while a subsequent March 2010 private treatment record shows a history of seizures since 1980, the Board gives the July 1997 private treatment record more weight because it is a concurrent medical record, unrelated to any claim for benefits. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the Veteran’s statements that he had a seizure disorder since service or shortly thereafter to not be factually accurate. Turning back to records suggesting that the Veteran’s seizure disorder has been present since service, as these records rely on the Veteran’s statements which contain an inaccurate factual premise, they are entitled to no weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value.). Service connection for may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s and an in-service injury, event or disease. 38 U.S.C. §§ 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Further, the Board finds that no examination is required because there is no credible evidence establishing that the seizure disorder manifested during an applicable presumption period for which the veteran qualifies. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Board finds that a remand for an examination and/or medical opinion is not warranted in this case. Thus, the weight of the evidence is against the claim for service connection for a seizure disorder. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. The claim of entitlement to service connection for an acquired psychiatric disability, to include cyclothymic disorder is remanded. The JMPR directed the Board to consider whether the Veteran’s assertions of an in-service event warranted a VA examination. Specifically, it was noted that a September 2017 private medical opinion noted the Veteran’s discussion of an incident in service where a tank was being unloaded off of a trailer and one of the tracks went off the side of the trailer, causing it to tilt; and that the Veteran had symptoms of anxiety and worry that were initially attributed to military service. The September 2019 Board decision found “that the evidence of record has not corroborated an in-service stressor, VA’s duty to provide the Veteran with an examination has not been triggered. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4)(noting that the second element for when VA’s duty to provide an examination has been triggered is the occurrence of an in-service event).” However, the lack of a stressor was in the context of the claim of entitlement to service connection for posttraumatic stress disorder (PTSD), not service connection for an acquired psychiatric disability, to include cyclothymic disorder. Service connection for non-PTSD disorders do not need a corroborated stressor. A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board finds that the criteria are met because the Veteran is competent to assert that the claimed incidents occurred during service. As such, the Board finds that a remand for an evaluation is warranted in this case. 3. The claim of entitlement to a 10 percent rating for a bilateral foot disability is remanded. The Veteran’s claim for an increased rating for his bilateral foot disability was previously remanded to obtain updated medical records and to provide all the records to a VA examiner to ascertain the current severity of the Veteran’s claim. The decision noted that the only examination in the file as of that date was from November 2017 and that “the examiner’s inability to evaluate the entire medical history renders the November 2017 examination inadequate for rating purposes.” Pursuant to the September 2019 Board remand, the Veteran was afforded an examination for his feet in February 2020. Based on this examination, an August 2020 rating decision discontinued the rating for “bunions and callouses” and instead separated out several disabilities, providing separate ratings for those disabilities: bilateral metatarsalgia, bilateral flatfoot, bilateral hallux valgus, and bilateral hammer toes. However, the total combined rating did not exceed 10 percent; thus, an increased rating was not awarded. The agency of original jurisdiction (AOJ) implemented these ratings effective April 5, 2018, the date of a claim for benefits. However, the Veteran’s claim has been pending since September 2017. While the Veteran is now in receipt of separate ratings for his bilateral foot disabilities, it appears that this decision may be in error. Significantly, a January 2018 VA examiner noted the various manifestations of the Veteran’s foot disabilities and opined that the foot conditions found on the November 2017 examination were not related to the Veteran’s callouses because callouses are a skin condition and are not related to the newly diagnosed conditions. The February 2020 examination did not address the relationship between callouses and the newly service-connected bilateral foot conditions. Thus, the Board questions whether the award of separate ratings for bilateral metatarsalgia, bilateral flatfoot, bilateral hallux valgus, and bilateral hammer toes was proper. Further, the Board finds that while the November 2017 VA examiner did not have access to the Veteran’s records, the examiner has the medical expertise to observe the Veteran’s feet. In this regard, the November 2017 examiner stated as follows: “Veteran’s feet are in a crippled condition with bilateral permanent contractures. Veteran presents with a shuffling ambling gait. Safe ambulation is impaired.” The February 2020 examiner did not find such severe symptomology. Thus, a remand is required for a new examination to address the discrepancy in the severity of the Veteran’s bilateral foot disabilities when comparing the November 2017 and February 2020 VA examinations and to comment as to the propriety of the separate ratings for bilateral metatarsalgia, bilateral flatfoot, bilateral hallux valgus, and bilateral hammer toes. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records from September 2020 to the present. 2. Scheduled the Veteran for an examination with a qualified clinician to determine the nature and etiology of his claimed acquired psychiatric disability. The examiner should address whether the Veteran’s acquired psychiatric disability, to include cyclothymic disorder, is at least as likely as not related to the Veteran’s military service. The Veteran is competent to report whether an in-service incident occurred, to include the following: an incident in service where a tank was being unloaded off of a trailer and one of the tracks went off the side of the trailer, causing it to tilt; and that the Veteran had symptoms of anxiety and worry that were initially attributed to military service. 3. Schedule the Veteran for an examination by an appropriate clinician, to include a podiatrist if possible, to determine the current severity of the Veteran’s service-connected bilateral foot disability. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). After evaluation, the examiner should address whether the Veteran’s bilateral metatarsalgia, bilateral flatfoot, bilateral hallux valgus, and bilateral hammer toes conditions are (a) caused or (b) aggravated by the originally service-connected bunion and callous disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.