Citation Nr: 21021022 Decision Date: 05/01/21 Archive Date: 04/09/21 DOCKET NO. 15-08 631 DATE: May 1, 2021 ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to the service-connected asthma and traumatic brain injury (TBI). 2. Entitlement to service connection for cervical and lumbar spinal damage, to include as secondary to the service-connected TBI. 3. Entitlement to service connection for seizures, to include as secondary to the service-connected TBI. 4. Entitlement to disability rating in excess of 10 percent for TBI, to include whether severance of a separate rating for TBI was proper. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to service connection for seizures, to include as secondary to the service-connected TBI, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to the service-connected asthma and TBI is remanded. Entitlement to service connection for cervical and lumbar spinal damage, to include as secondary to the service-connected TBI is remanded. Entitlement to disability rating in excess of 10 percent for TBI, to include whether severance of a separate rating for TBI was proper, is remanded. Entitlement to a TDIU is remanded. FINDING OF FACT The Veteran's seizures are a symptom of his service-connected conversion disorder with mixed symptoms. CONCLUSION OF LAW Seizures, as a separate ratable entity, were not incurred in or aggravated by service and are not proximately due to or the result of a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1973 to May 1993. This case is before the Board of Veterans' Appeals (the Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Houston, Texas. The Veteran testified before the undersigned during a January 2019 travel Board hearing; a copy of the transcript is of record. When this case was previously before the Board in December 2020, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. Duties to Notify and Assist The Veteran and his representative have not raised any argument(s) with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the appeal may be considered on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2017). To establish a right to compensation, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 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 claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In response to the Board's remand, the Veteran was afforded a VA-contracted examination in January 2021 in which the examiner stated that Keppra was commonly used for seizure disorders; however, in this case, it appeared to have been used for the treatment and prevention of the Veteran's migraines, and he was no longer using Levetiracetam to treat a seizure disorder. The examiner stated that the Veteran was actually service connected for conversion disorder and all symptoms found on examination that day were subsumed by that condition; a diagnosis was not warranted at that time. The examiner stated that the Veteran had psychogenic non-epileptic seizures which were the basis for the conversion disorder diagnosis and were fully evaluated in the present examination. The preponderance of the evidence indicates that the Veteran's seizures are not a separate disability, but a symptom attributable to his service-connected conversion disorder. To separately compensate the Veteran for seizures would violate the rule against pyramiding. See 38 C.F.R. § 4.14 (providing that the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited). Therefore, service connection cannot be granted for seizures as a separate disability. For these reasons, the Board finds that service connection for seizures is not warranted. REASONS FOR REMAND Subsequent to the Board's remand in a February 2021 rating decision, the evaluation of conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI was increased to 70 percent effective December 17, 2020. Within this rating decision, the RO stated that examiners from examinations conducted on December 17, 2020, and January 14, 2021, were unable to differentiate symptoms between the current mental health condition(s) and traumatic brain injury. As such, the TBI was added to the mental health conditions as "conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI". To this point, the Board notes that the December 2020 examiner for the psychiatric condition stated that the Veteran did not have a diagnosed TBI but then stated that it was not possible to differentiate what symptom(s) is/are attributable to TBI and any non-TBI mental health diagnosis as the symptoms overlap and exacerbate each other. The January 2021 examiner stated that he was unable to differentiate symptoms of TBI versus the mental disorder without speculation as both shared overlapping commonalities/co-morbid conditions, "please defer to psych examiner". As the December 2020 examiner gave conflicting information and the January 2021 examiner asked for the question to be deferred to a psychiatric examiner, the Board finds that obtaining an addendum opinion on remand is necessary to address whether the Veteran's TBI and non-TBI mental health diagnoses overlap or are separate. In response to the Board's remand, the Veteran was afforded VA-contracted examinations in January 2021 in which the examiner stated that there were no chronic complaints, treatments, or assessments associated with a back disability, a neck disability, or sleep apnea found in the service treatment records (STRs). The examiner stated that the Veteran's retirement examination was negative for complaint of "recurrent back pain" or related findings; thus, a negative opinion was rendered for the back and neck. The examiner stated that the retirement examination noted a sleep study; however, this was non-specific as there were no notes associated with this examination, and the Veteran did not have a sleep study until more than several years after retirement; thus, a negative opinion was rendered. Moreover, the examiner generally opined that a neck disability, a back disability, and sleep apnea were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected TBI; and that the sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected asthma. However, the examiner did not address whether these disabilities were aggravated (permanently worsened) by the Veteran's service-connected TBI and asthma. The Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As such, the Board finds that addendum opinions should be sought on remand to include opinion on aggravation. In regards to the claim for a TDIU, this issue is intertwined with the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the December 2020 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran's TBI. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. The examiner should address: Whether the symptoms of the diagnosed TBI overlap with those from the service-connected conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder or whether they include any that are separate and distinct from his other symptoms. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. Provide the Veteran's claims file to the January 2021 examiner, or appropriate substitute if this examiner is not available, to provide addendum opinions. An examination is only required if deemed necessary by the examiner. The examiner is reminded that the Veteran has a TBI, that has been variously diagnosed, as related to a volleyball accident in service. The examiner should: a) Opine whether it is at least as likely as not (50 percent or better probability) that any sleep apnea, cervical, and lumbar spinal damage diagnosed during the pendency of this claim had their onset in service or are otherwise related to service. The examiner is reminded that absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford, 3 Vet. App. 87, 89. b) Opine whether it is at least as likely as not (50 percent or better probability) that any sleep apnea, cervical, and lumbar spinal damage diagnosed during the pendency of this claim were aggravated (permanently worsened) by the Veteran's service-connected TBI. c) Opine whether it is at least as likely as not (50 percent or better probability) that any sleep apnea diagnosed during the pendency of this claim was aggravated (permanently worsened) by the Veteran's service-connected asthma. A full and complete rationale for all opinions expressed must be provided. 3. Upon completion of the opinions ordered above, review the reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, furnish to the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The appellant should be afforded the appropriate time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.