Citation Nr: 21025134 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-18 398 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) effective June 3, 2019, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to increased ratings for paramyoclonus multiplex with tonic-clonic seizures – currently rated as 10 percent disabling prior to June 26, 2013; 20 percent disabling from June 26, 2013, to June 2, 2019; and 80 percent disabling since June 3, 2019 – is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to TDIU prior to June 3, 2019, is remanded. Entitlement to a temporary total evaluation based on the service-connected paramyoclonus multiplex with tonic-clonic seizures requiring hospitalization and convalescence is remanded. Entitlement to service connection for a heart disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for strokes and residuals thereof, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a visual disability manifested by blurry vision, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a headache disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a disability manifested by episodes of dizziness and fainting, to include as secondary to service-connected disabilities, is remanded. REFERRED The issue of entitlement to special adaptive housing grant was raised in a December 2015 report of general information and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. Since June 3, 2019, the Veteran has service-connected for the following disabilities: paramyoclonus multiplex with tonic-clonic seizures, tinnitus, and bilateral hearing loss. 2. Since June 3, 2019, the service-connected disabilities have been rated 80 percent disabling with paramyoclonus multiplex with tonic-clonic seizures being rated 80 percent disabling. 3. The weight of evidence shows that since June 3, 2019, these service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for TDIU effective June 3, 2019, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26, 4.124A (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1972 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 (denying an increased rating for paramyoclonus multiplex with tonic-clonic seizures; denying service connection for strokes, headaches, blurred vision, dizziness, fainting; and denying the reopening of service connection for functional systolic heart murmur) and December 2014 (assigning an initial zero percent disability rating for bilateral hearing loss) rating decisions of a Department of Veterans Affairs (VA) regional office (RO). In July 2018, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. In October 2018, the Board reopened and remanded the issue of entitlement to service connection for a heart disability. The Board also remanded the issues of increased ratings for paramyoclonus multiplex with tonic-clonic seizures and bilateral hearing loss as well as the issues of service connection for strokes and residuals thereof, a visual disability manifested by blurred vision, a headache disorder, and a disorder manifested by dizziness and fainting. In a June 2020 rating decision, a RO assigned an 80 percent disability rating for paramyoclonus multiplex with tonic-clonic seizures effective June 3, 2019. As the 80 percent disability rating is not the maximum rating available for the seizure disorder, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In an August 2012 statement, the Veteran reported that he was not working in part because of his seizure disorder. In a June 2019 VA counseling record – narrative report, a vocational rehabilitation counselor determined that the Veteran had an impairment of employability and that the service-connected disabilities, to include the seizure disorder, materially contributed to this impairment of employability. Since entitlement to TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, it can be part of the initial adjudication of a claim for increase if no formal TDIU claim is filed. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As discussed below, the Board is granting TDIU effective June 3, 2019, the period that the Veteran is eligible for consideration under 38 C.F.R. § 4.16(a). The issue of entitlement to TDIU prior to June 3, 2019, remains pending and is being remanded. 1. Entitlement to TDIU since June 3, 2019 Governing law and regulations TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for TDIU, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Rating specialists must bear in mind that the epileptic, although his or her seizures are controlled, may find employment and rehabilitation difficult of attainment due to employer reluctance to the hiring of the epileptic. Where a case is encountered with a definite history of unemployment, full and complete development should be undertaken to ascertain whether the epilepsy is the determining factor in his or her inability to obtain employment. 38 C.F.R. § 4.124A. Analysis Since June 3, 2019, the Veteran has service-connected for the following disabilities: paramyoclonus multiplex with tonic-clonic seizures, tinnitus, and bilateral hearing loss. Since June 3, 2019, the service-connected disabilities have been rated 80 percent disabling with paramyoclonus multiplex with tonic-clonic seizures being rated 80 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) since June 3, 2019. A March 2016 VA ear conditions examination report reflects that the Veteran reported that he had left his last job in manufacturing because of health issues related to hypertension and seizures. A June 2018 VA Form 28-1902w (rehabilitation needs inventory) reflects that the Veteran worked from January 2017 to January 2018 in the produce department of a retail store and that he had worked full time as a machine operator until June 2014. He reported that he left his job in the produce department because of transportation issues but that he left his job as a machine operator because of medical problems. He noted that he had a high school education and no current vocational certificates or licenses. In a June 2019 VA counseling record – narrative report, a vocational rehabilitation counselor determined that the tinnitus and hearing loss resulted in difficulty understanding verbal communications and follow verbal directives in a loud environment. The counselor added that the tinnitus distracts the Veteran from concentrating and gaining restful sleep, which would interfere with his ability to maintain alertness and physical stamina. The counselor stated that the seizure disorder limits extensive driving, physically demanding activities, working above ground level, climbing, and balancing. The counselor indicated that the Veteran needs to work within a supportive environment that is sensitive to and knowledgeable of action to take when a seizure occurs. The vocational rehabilitation counselor determined that the Veteran had an impairment of employability and that the service-connected disabilities materially contributed to this impairment of employability. The counselor indicated that he had not overcome the effects of the impairment of employability and that he has a serious employment handicap. A November 2019 VA audiological examination report reveals that the tinnitus did not impact ordinary conditions of daily life, including the ability to work, but that the hearing loss did impact ordinary conditions of daily life because he has to have his hearing aids on in order to understand what people are saying. A November 2019 VA seizure disorders examination report reflects that the Veteran had had at least two major seizures in the past year and that the average frequency was at least one in three months over the past year. The examiner stated that due to the seizure disorder, any job involving shooting weapons, working on heights, or prolonged driving would be precarious. The Board places great weight on the June 2019 findings of the VA vocational rehabilitation counselor regarding the impairment from the seizure disorder and the findings from the November 2019 VA examiner regarding the frequency of major seizures. The weight of evidence shows that since June 3, 2019, these service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. Accordingly, entitlement to TDIU since June 3, 2019, in order. REASONS FOR REMAND In its October 2018 remand, the Board directed the RO to obtain all identified outstanding records. The RO received an admission report showing that the Veteran was hospitalized at the Durham VA Medical Center in September 2019 for seizures, but the RO did not obtain any additional records from that facility. The RO should have obtained all records from that facility from March 2016 to the present. The RO should also obtain any additional records from the Salisbury VA Medical Center and its outpatient clinics from December 2019 to the present. In its October 2018 remand, the Board directed the RO to obtain VA examinations and medical opinions regarding stroke and a disability manifested by episodes of dizziness and fainting. No such examinations were conducted to address those specific disabilities, and an October 2018 exam scheduling request shows that the RO did not request these types of examinations. The December 2020 VA medical opinion did not address the stroke at all and did not adequately address the disability manifested by episodes of dizziness and fainting. In its remand, the Board directed the RO to obtain a medical opinion on whether any eye disability manifested by blurred vision was caused or aggravated by the seizure disorder. A September 2019 VA treatment record reveals assessments of stroke with ophthalmic manifestations (diplopia), presumed vitelliform macular dystrophy, and pre-surgical cataracts. A November 2019 VA eye examination report shows that the examiner only diagnosed vitelliform dystrophy of the macula bilaterally and only addressed that disability in the November 2019 and November 2020 medical opinions. Thus, an addendum is necessary to address the nature of the diplopia and cataracts. In its remand, the Board directed the RO to obtain a medical opinion on whether the heart disability and headaches were caused or aggravated by the seizure disorder. In a December 2020 medical opinion, the examiner noted that the medical evidence was insufficient to support a determination of a baseline level of severity and that the medical record did not support any aggravation in the symptoms. The rationale, however, was unclear on whether the examiner was referring to the current heart disabilities, the atypical cluster headaches, or both. Accordingly, an addendum is necessary. In light of the above, the RO did not comply with the directives of the October 2018 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The December 2020 VA medical opinion addressing the headache disorder was predicated the headaches beginning 10 years ago. VA treatment records show that the Veteran was treated for headaches in 1988. In addition to a medical opinion addressing aggravation as discussed above, another medical opinion on direct and secondary causation is also necessary. The December 2020 VA medical opinion addressing the current heart disabilities reflects that the examiner stated that aortic stenosis can be caused by a congenital bicuspid aortic value. A July 2020 private treatment record reveals that the Veteran has a bicuspid aortic value. A medical opinion addressing whether the Veteran’s bicuspid aortic value is a congenital defect is necessary. The December 2020 VA medical opinion addressing the current heart disabilities did not address the in-service orthostatic hypotension. Thus, another medical opinion on direct causation is necessary. A March 2016 VA treatment record reveals that the Veteran was applying for Social Security disability benefits. The RO should obtain any records from the Social Security Administration pertaining to his claim for disability benefits. In a June 1988 claim, the Veteran reported that Dr. Fowler treated him for dizziness. The RO should attempt to obtain these records. The RO should provide the Veteran a formal application for his claim of entitlement to TDIU. The RO has not provided him notice of the information and evidence needed to substantiate and complete the TDIU claim, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A (2012). The June 2018 VA Form 28-1902w (rehabilitation needs inventory) reflects that the Veteran worked from January 2017 to January 2018 in the produce department of a retail store and that he had worked full-time as a machine operator until June 2014. Given that the Veteran filed his increased rating claim in 2012, the RO should ask the Veteran to provide employment and income information from 2011 to 2019. For claims regarding epilepsy and unemployability, further development is required pursuant to 38 C.F.R. § 4.124A. The assent of the claimant should be obtained for permission to conduct an economic and social survey. The purpose of this survey is to secure all the relevant facts and data necessary to permit a true judgment as to the reason for his or her unemployment and should include information as to the following: education, occupations prior and subsequent to service, places of employment and reasons for termination, wages received, and number of seizures. Upon completion of this survey and current examination, the case should have rating board consideration. Where in the judgment of the rating board, the Veteran’s unemployability is due to epilepsy and jurisdiction is not vested in that body by reason of schedular evaluations, the case should be submitted to the Director, Compensation and Pension Service. 38 C.F.R. § 4.124A. The Veteran was examined in December 2019. An economic and social survey is necessary. In July 2012 statement, the Veteran noted that he had been hospitalized in May 2012 and that he needed convalescence for at least six more weeks. In the August 2013 rating decision, the RO denied entitlement to a temporary 100 percent evaluation based on a hospitalization in May 2012 as part of its denial of an increased rating for paramyoclonus multiplex with tonic-clonic seizures. In September 2013, the Veteran filed a timely notice of disagreement with the denial of the increased rating for a seizure disorder. An April 2015 statement of the case did not address entitlement to a temporary total evaluation based on the service-connected seizure disorder requiring hospitalization and convalescence. That statement of the case, instead, merely addressed higher schedular ratings for the seizure disorder. A remand is required for the RO to issue a statement of the case on entitlement to a temporary total evaluation based on the service-connected paramyoclonus multiplex with tonic-clonic seizures requiring hospitalization and convalescence. 38 C.F.R. § 20.200 (2020); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. The RO should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim for TDIU, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. 2. The AOJ must provide the Veteran a formal application for the claim of entitlement to TDIU. 3. Ask the Veteran to provide income and employment information from 2011 to 2019. 4. Obtain VA Form 21-4192 (request for employment information in connection with claim) from all employers from 2011 to 2019. 5. Ask the Veteran to identify all treatment for his paramyoclonus multiplex with tonic-clonic seizures, hearing loss, heart disorders, stroke and residuals thereof, headaches, visual disability, dizziness and fainting spells, and any other disability pertaining to his TDIU claim, and obtain any identified records. Obtain the Veteran’s VA treatment records from the Durham VA Medical Center for the period from March 2016 to the present. Obtain the Veteran’s VA treatment records from the Salisbury VA Medical Center and its outpatient clinics for the period from December 2019 to the present. Ask the Veteran to complete a VA Form 21-4142 for Dr. Fowler and any other relevant private provider. Make two requests for the authorized records from Dr. Fowler and any other relevant private provider, unless it is clear after the first request that a second request would be futile. 6. Obtain the Veteran’s federal records from the Social Security Administration regarding the Veteran’s claim for disability benefits. Document all requests for information as well as all responses in the claims file. 7. After the development in 1 through 6 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his strokes and residuals thereof and any disorder manifested by episodes of dizziness and fainting. The examiner should offer an opinion as to the etiology of the symptoms of dizziness and fainting, to include commenting on whether it is attributable to a known clinical diagnosis such as a stroke, a heart disability, or the service-connected paramyoclonus multiplex with tonic-clonic seizures. If that examiner cannot identify a disease or disability that causes dizziness and fainting, the examiner should so state. If the examiner does not attribute the symptoms of dizziness and fainting to a stroke, a heart disability, or the service-connected paramyoclonus multiplex with tonic-clonic seizures, the examiner should specifically opine on whether it is at least as likely as not (50 percent or greater probability) that the disability manifested by dizziness and fainting is related to an in-service injury, event, or disease, including in-service seizures, dizziness and fainting spells, and orthostatic dizziness or hypotension. If the examiner does not attribute the symptoms of dizziness and fainting to a stroke, a heart disability, or the service-connected paramyoclonus multiplex with tonic-clonic seizures, the examiner must opine on whether it is at least as likely as not that the disability manifested by dizziness and fainting was (1) caused by or (2) aggravated by paramyoclonus multiplex with tonic-clonic seizures. If the examiner finds that the disability manifested by dizziness and fainting was aggravated by paramyoclonus multiplex with tonic-clonic seizures, then the examiner should quantify the degree of aggravation. The examiner should specifically opine on whether it is at least as likely as not (50 percent or greater probability) that any of the strokes are related to an in-service injury, event, or disease during his period of active duty from May 1972 to August 1973, including in-service seizures, orthostatic dizziness or hypotension, and the heart murmur noted shortly after separation at the November 1973 VA examination and the June 1975 temporary disability retired list examination. The examiner must opine on whether it is at least as likely as not that any stroke or residuals thereof were (1) caused by or (2) aggravated by paramyoclonus multiplex with tonic-clonic seizures. If the examiner finds that any stroke or residuals thereof were aggravated by paramyoclonus multiplex with tonic-clonic seizures, then the examiner should quantify the degree of aggravation. 8. After the development in 1 through 6 is completed, the AOJ should arrange for the Veteran’s claims file to be reviewed by the VA examiner who prepared the medical opinions in November 2019 and November 2020 for preparation of an addendum opinion. If that medical professional is unavailable, arrange for the claims file to be reviewed by an appropriate clinician. The Veteran should only be scheduled for another examination if the VA examiner or the new clinician deems it necessary. The clinician should specifically opine on whether it is at least as likely as not (50 percent or greater probability) that cataracts are related to an in-service injury, event, or disease, including in-service seizures. The examiner must opine on whether it is at least as likely as not that the cataracts were (1) caused by or (2) aggravated by paramyoclonus multiplex with tonic-clonic seizures. If the examiner finds that the cataracts were aggravated by paramyoclonus multiplex with tonic-clonic seizures, then the examiner should quantify the degree of aggravation. The examiner must opine on whether it is at least as likely as not that the diplopia as a residual of a stroke was aggravated by paramyoclonus multiplex with tonic-clonic seizures. If the examiner finds that the diplopia was aggravated by paramyoclonus multiplex with tonic-clonic seizures, then the examiner should quantify the degree of aggravation. 9. After the development in 1 through 6 is completed, the AOJ should arrange for the Veteran’s claims file to be reviewed by the VA examiner who prepared the medical opinion in December 2020 for preparation of an addendum opinion. If that medical professional is unavailable, arrange for the claims file to be reviewed by an appropriate clinician. The Veteran should only be scheduled for another examination if the VA examiner or the new clinician deems it necessary. The clinician must opine on whether it is more likely than not (probability of greater than 50 percent) that the bicuspid aortic value is a congenital or development defect. If the bicuspid aortic value is a congenital or development defect, the clinician should opine on whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran now has additional disability due to an in-service disease or injury superimposed upon such defect. If the bicuspid aortic value is not a congenital or development defect, the clinician must opine on whether it is clear and unmistakable (undebatable) that the bicuspid aortic value preexisted the Veteran’s service. If the clinician finds the bicuspid aortic value did clearly and unmistakably (undebatably) preexist service, the examiner must opine whether it is clear and unmistakable (undebatable) that the bicuspid aortic value was not aggravated by service. If the clinician finds that the bicuspid aortic value did not clearly and unmistakably preexist service, the clinician must opine whether it is at least as likely as not that the bicuspid aortic value is related to an in-service injury, event, or disease during his period of active duty from May 1972 to August 1973, including in-service seizures, orthostatic dizziness or hypotension, and the heart murmur noted shortly after separation at the November 1973 VA examination and the June 1975 temporary disability retired list examination. If the bicuspid aortic value is not a congenital or development defect, the clinician must opine on whether it is at least as likely as not that the bicuspid aortic value was (1) caused by or (2) aggravated by paramyoclonus multiplex with tonic-clonic seizures. If the clinician finds that the bicuspid aortic value was aggravated by paramyoclonus multiplex with tonic-clonic seizures, then the clinician should quantify the degree of aggravation. The clinician must opine whether it is at least as likely as not that the aortic stenosis is related to an in-service injury, event, or disease during his period of active duty from May 1972 to August 1973, including in-service seizures, orthostatic dizziness or hypotension, and the heart murmur noted shortly after separation at the November 1973 VA examination and the June 1975 temporary disability retired list examination. The clinician must opine on whether it is at least as likely as not that the aortic stenosis was (1) caused by or (2) aggravated by paramyoclonus multiplex with tonic-clonic seizures. If the clinician finds that the aortic stenosis was aggravated by paramyoclonus multiplex with tonic-clonic seizures, then the clinician should quantify the degree of aggravation. The clinician must opine whether it is at least as likely as not that the atrial fibrillation is related to an in-service injury, event, or disease during his period of active duty from May 1972 to August 1973, including in-service seizures, orthostatic dizziness or hypotension, and the heart murmur noted shortly after separation at the November 1973 VA examination and the June 1975 temporary disability retired list examination. The clinician must opine on whether it is at least as likely as not that the atrial fibrillation was (1) caused by or (2) aggravated by paramyoclonus multiplex with tonic-clonic seizures. If the clinician finds that the atrial fibrillation was aggravated by paramyoclonus multiplex with tonic-clonic seizures, then the clinician should quantify the degree of aggravation. With consideration of 1988 VA treatment records showing treatment for headaches, the clinician must opine whether it is at least as likely as not that the current headache disorder is related to an in-service injury, event, or disease, including in-service seizures and headaches. With consideration of 1988 VA treatment records showing treatment for headaches, the clinician must opine on whether it is at least as likely as not that the current headache disorder was (1) caused by or (2) aggravated by paramyoclonus multiplex with tonic-clonic seizures. If the clinician finds that the current headache disorder was aggravated by paramyoclonus multiplex with tonic-clonic seizures, then the clinician should quantify the degree of aggravation. 10. After the development in 1 through 6 is completed, the RO should undertake any necessary development on the claim for increased ratings for paramyoclonus multiplex with tonic-clonic seizures and bilateral hearing loss based on the additional evidence of record. 11. After the development in 1 thorough 6 is completed, the RO with the Veteran’s assent should conduct an economic and social survey. The purpose of this survey is to secure all the relevant facts and data necessary to permit a true judgment as to the reason for his or her unemployment and should include information as to the following: education, occupations prior and subsequent to service, places of employment and reasons for termination, wages received, and number of seizures. After the survey is completed, if the rating board determines that prior to June 3, 2019, the Veteran was unemployable due to epilepsy, the case should be submitted to the Director, Compensation and Pension Service for extraschedular consideration. 12. Send the Veteran a statement of the case that addresses the issue of entitlement to a temporary total evaluation based on the service-connected paramyoclonus multiplex with tonic-clonic seizures requiring hospitalization and convalescence. If the Veteran perfects an appeal by submitting a timely VA Form 9 on an issue, that issue should be returned to the Board for further appellate consideration. 13. After development above has been completed, the RO should readjudicate the Veteran’s claims. The RO should consider whether paramyoclonus multiplex with tonic-clonic seizures is more appropriately rated under Diagnostic Code 8104 (paramyoclonus multiplex) or Diagnostic Code 8910 (grand mal epilepsy) prior to June 3, 2019. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.