Citation Nr: 21026599 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-40 850 DATE: May 3, 2021 ORDER New and material evidence having been received, the appeal to reopen service connection for a seizure disorder (previously claimed as primary generalized epilepsy) is granted. New and material evidence not having been received, the appeal to reopen service connection for a low back disorder (previously claimed as a back injury) is denied. Service connection for a seizure disorder is denied. Service connection for amputation below the left knee is denied. Service connection for a gunshot wound to the left lower leg is denied. Service connection for a torn meniscus in the right knee is denied. Service connection for an eye disorder is denied. Service connection for right ear hearing loss and/or right ear disorder is denied. Service connection for left ear hearing loss and/or left ear disorder is denied. Service connection for interstitial cystitis is denied. Service connection for memory loss/dementia is denied. FINDINGS OF FACT 1. In an unappealed September 1996 rating decision, the Regional Office (RO) denied service connection for primary generalized epilepsy on the basis that the evidence did not show that preexisting epilepsy had been aggravated by service; evidence received since the September 1996 rating decision relates to whether epilepsy had preexisted service, which is necessary to substantiate a claim for service connection. 2. In an unappealed July 1996 rating decision, the RO denied service connection for a back injury on the basis that the evidence did not show a currently diagnosed back disorder; evidence received since the July 1996 rating decision is new to the claims file but does not have any tendency to establish a currently diagnosed back disorder. 3. A seizure disorder, to include primary generalized epilepsy, was not "noted" at entry into active service in April 1994; a seizure disorder, to include primary generalized epilepsy, clearly and unmistakably existed prior to service; a seizure disorder, to include primary generalized epilepsy, was clearly and unmistakably did not increase in severity beyond a normal progression during service. 4. Service connection for amputation below the left knee, as a matter of law, is denied. 5. Service connection for a gunshot wound to the left lower leg, as a matter of law, is denied. 6. The Veteran is not currently diagnosed with a torn meniscus in the right knee. 7. The Veteran is not currently diagnosed with an eye disorder. 8. The Veteran does not have a right ear hearing loss disability or other right ear disability. 9. The Veteran does not have a left ear hearing loss disability and/or a left ear disability. 10. The Veteran is not currently diagnosed with interstitial cystitis. 11. The Veteran is not currently diagnosed with memory loss/dementia. CONCLUSIONS OF LAW 1. The September 1996 rating decision denying service connection for primary generalized epilepsy became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the September 1996 rating decision is new and material to reopen service connection for a seizure disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The July 1996 rating decision denying service connection for a back injury became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has not been received to reopen service connection for a low back disorder/back injury. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 5. The evidence is clear and unmistakable that the Veteran had a preexisting seizure disorder, to include primary generalized epilepsy. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. 6. The evidence is clear and unmistakable that a preexisting seizure disorder, to include primary generalized epilepsy, was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. 7. The criteria for service connection for amputation below the left knee have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 8. The criteria for service connection for a gunshot wound to the left lower leg have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 9. The criteria for service connection for a torn meniscus in the right knee have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 10. The criteria for service connection for an eye disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 11. The criteria for service connection for right ear hearing loss and/or a right ear disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385. 12. The criteria for service connection for left ear hearing loss and/or a left ear disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385. 13. The criteria for service connection for interstitial cystitis have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 14. The criteria for service connection for memory loss/dementia have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from April 1994 to September 1995. Reopening Service Connection Legal Criteria Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. Reopening service connection for a seizure disorder In a September 1996 rating decision, the RO denied service connection for primary generalized epilepsy on the basis that the evidence did not show that the preexisting epilepsy was aggravated by service. Because the Veteran did not submit a Notice of Disagreement, and no additional evidence was received within one year of the notice of the rating decision, the September 1996 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the September 1996 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records, private treatment records, lay statements, and the November 2020 Board hearing transcript, which evidence is new because they have not been previously submitted. Evidence received since the September 1996 rating decision includes the Veteran's November 2020 Board hearing testimony that he did not experience seizures prior to service. The Board finds that such evidence relates to whether a seizure disorder preexisted service, so could reasonably substantiate a claim for service connection for a seizure disorder. As such, the Board finds that the additional evidence is new and material to reopen service connection for a seizure disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Denial of reopening service connection for a low back disorder A July 1996 rating decision denied service connection for a back injury on the basis that the evidence did not show a currently diagnosed back disorder. Because the Veteran did not submit a Notice of Disagreement, and no additional evidence was received within one year of the notice of the rating decision, the July 1996 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the July 1996 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records, private treatment records, and lay statements, which evidence is new because it has not been previously submitted; however, the evidence received since the July 1996 rating decision is not material because it does not have any tendency to establish a currently diagnosed low back disorder, so does not raise a reasonable possibility of substantiating the claim for service connection for a low back disorder. For these reasons, the Board finds that the evidence received since the July 1996 rating decision does not relate to a showing of a currently diagnosed low back disorder; thus, the evidence received since the July 1996 rating decision is not new and material evidence to reopen service connection for a low back disorder/back injury. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As discussed in detail below, the Board has found that the Veteran's bipolar disorder clearly and unmistakably preexisted active duty service, and clearly and unmistakably was not aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Accordingly, the direct service connection provisions of 38 C.F.R. § 3.303(a), (d) and presumptive service connection provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 do not apply in this case. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran need not produce any evidence of aggravation in order to prevail under the no-aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Conversely, the burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. The Veteran is currently diagnosed with amputation below the left knee and gunshot wound to the left leg, which are not "chronic" diseases under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 3. Service connection for a seizure disorder The Veteran asserts that a seizure disorder, including primary generalized epilepsy, had its onset during service and did not preexist service. See November 2020 Board hearing transcript. On an August 1992 service enlistment physical, the neurologic system was found to be clinically normal. On an associated Report of Medical History, the Veteran denied a history of epilepsy or fits. As noted above, only such conditions as are recorded in examination reports are to be considered as noted; therefore, the Board finds that a preexisting seizure disorder was not "noted" at service entrance. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Board finds that a seizure disorder, to include primary generalized epilepsy, clearly and unmistakably existed prior to active service. Service treatment records from June 1995 reflect the Veteran suffered a seizure while playing video games with friends. The Veteran was transported to the hospital in a confused and postictal state and was ultimately diagnosed with primary generalized epilepsy. Upon interview, the Veteran described suffering a similar seizure episode about 18 months prior to entry into active service. The Veteran described suddenly blacking out while taking a shower, at which time his father heard a thumping sound coming from the shower, and found him unresponsive and convulsing in the shower with his extremities moving in a tonic/clonic fashion. Following this episode, the Veteran's father noted he was postictal as well. The Veteran reported he did not seek medical treatment after this episode and did not report this event upon his admission into active service. A Report of Medical Board relating to the June 1995 seizure event also notes that the Veteran's medical history included febrile seizures as a child, in addition to the seizure episode that occurred prior to service. The Report of Medical Board includes the opinion of the Medical Board, which includes a medical doctor, that the Veteran was not fit for active duty due to epilepsy, which the Medical Board concluded was neither incurred in, nor aggravated by, a period of active service. In a statement signed in July 1995, the Veteran stated he had been informed of the contents, opinions, and recommendations of the Medical Board and indicated that he did not desire to submit a statement in rebuttal. As discussed above, the Veteran previously sought service connection for primary generalized epilepsy, which was denied in a July 1996 rating decision and then again in a September 1996 rating decision, the latter of which became final. See January 1996 VA Form 21-526. In the both the July 1996 rating decision and the September 1996 rating decision, service connection for primary generalized epilepsy was denied on the basis that the condition preexisted service and was not aggravated by active duty service. The Veteran did not challenge these findings contained in the July 1996 and September 1996 rating decisions. The earliest contention that a seizure disorder did not preexist service appears in a January 2019 Statement submitted in relation to the current appeal wherein the Veteran asserts that he did not suffer from any seizures until he entered active service. The Veteran and the Veteran's father also testified during the November 2020 Board hearing that the Veteran never had seizures before service. The Veteran's and his father's new and recent assertions that the Veteran never experienced a seizure prior to service were made years later and for compensation purposes. This new and inconsistent story attempting to deny preexisting symptoms, a story that was first presented in 2019, is entirely incompatible with more contemporaneous, detailed, and specific histories and symptoms presented by the Veteran for treatment purposes, including during service. This new generalized denial of preexisting symptoms also is entirely incompatible with the contemporaneous assessment by the Medical Board that was based on a review of the history, history from the Veteran, medical records, and examination of the Veteran. Specifically, the June 1995 service treatment records and the Report of Medical Board discussed above contain the Veteran's own detailed reports of experiencing a seizure 18 months prior to service, in addition to suffering febrile seizures as a child. For these reasons, the Veteran's and his father's newly proffered general denial of preservice symptoms is not credible, so is of no probative value. Based on the foregoing, the Board finds that the evidence demonstrates that the Veteran's seizure disorder, including primary generalized epilepsy, clearly and unmistakably preexisted service. As to the question of whether the evidence is clear and unmistakable that the preexisting seizure disorder, including primary generalized epilepsy, was not aggravated by service, the Board finds that the evidence of record demonstrates that the preexisting seizure disorder, to include primary generalized epilepsy, was clearly and unmistakably not aggravated by service. The evidence demonstrates that the Veteran suffered a single seizure event during service while playing video games. The Report of Medical Board discussed above which was based on the Veteran's own history, review of service medical records, and examination of the Veteran by at least one medical doctor noted the Veteran's prior history of a seizure event 18 months before service as well as his history of febrile seizures as a child, and the medical opinion that the preexisting epilepsy was neither incurred nor aggravated by a period of active service. Instead, the Veteran asserts that a closed head injury sustained in May 1994 is the cause of the current seizure disorder, to include primary generalized epilepsy. Service treatment records from May 1994 reflect the Veteran suffered a syncopal episode after working out and fell on the back of his head. The Veteran was transported to the hospital with complaints of a headache in the back of the head. The Veteran was found to be oriented with short- and long-term memory intact. A computerized tomography (CT) scan of the head was negative for bleeding or fractures. The diagnosis was an acute closed head injury. In two subsequent follow up medical visits the Veteran reported he still had a headache, which was assessed as a head contusion. See May 1994 service treatment record. The record includes a June 2018 private medical letter from Dr. T.H. that states the Veteran has a chronic neurological problem likely resulting from a traumatic brain injury. Dr. T.H. does not specify what type, or the nature of, the chronic neurological problem the Veteran suffers from, but private treatment records from Dr. T.H. indicate the Veteran was being seen for partial symptomatic epilepsy with complex partial seizures. See July 2018 private treatment record. Dr. T.H. does not provide a rationale for the opinion that a chronic neurological problem, which appears to be referring to the Veteran's seizure disorder, was caused by a traumatic brain injury during service. Dr. T.H. also does not acknowledge or discuss the accurate fact that the Veteran's seizure disorder preexisted service or that the Veteran suffered febrile seizures as a child. Because Dr. T.H.'s opinion is not supported by medical rationale and is based on incomplete facts and an inaccurate medical history, the Board finds that Dr. T.H.'s July 2018 private medical opinion is of no probative value in showing either that the Veteran's seizure disorder was caused by the closed head injury during service, or that the seizure disorder was worsened beyond its normal progression (aggravated) by the closed head injury sustained during service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, as such purported opinion is of no probative value). For these reasons, the Board finds that, while the presumption of soundness attaches, the Veteran's seizure disorder, to include primary generalized epilepsy, clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated therein by the occurrence of a single seizure event in June 1995. As there is clear and unmistakable evidence that the Veteran's preexisting seizure disorder, including primary generalized epilepsy, was not aggravated by service, the Board finds that service connection for a seizure disorder, to include primary generalized epilepsy, is not warranted, and the appeal for this issue must be denied. 4. Service connection for amputation below the left knee 5. Service connection for a gunshot wound to the left lower leg The Veteran contends that a gunshot wound to the left lower leg and amputation below the left knee is the result of a seizure disorder. This is the Veteran's sole contention as the gunshot wound and the amputation both occurred following service separation. See November 20202 Board hearing transcript. Specifically, during the November 2020 Board hearing, the Veteran testified that in 1996, in the year following service separation, he suffered a seizure while holding a rifle, which resulted in a gunshot wound to his left lower leg. The Veteran testified that the gunshot wound resulted in an amputation below the left knee. Initially, the Board finds that the Veteran is currently diagnosed with residuals of a gunshot wound to the left lower leg in the form of amputation below the left knee. See May 1996 private treatment records. As discussed above, service connection for a seizure disorder has been denied; therefore, as a matter of law, the Veteran is unable to receive service connection on a secondary basis (38 C.F.R. § 3.310) for a gunshot wound to the left lower leg and amputation below the left knee because it is claimed as due to the non-service-connected seizure disorder. The evidence does not demonstrate, nor does the Veteran contend, that the gunshot wound to the left lower leg and amputation below the left knee occurred during service. The undisputed evidence shows post-service onset of injury and amputation due to non-service-connected etiology. As a theory of secondary service connection is based on the law and not the facts of the case, service connection under this theory must be denied on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). For these reasons service connection for a gunshot wound to the left lower leg and amputation below the left knee must be denied as a matter of law. 38 U.S.C. § 7104 (providing that the Board only decides actual case questions of law or fact). 6. Service connection for a torn meniscus in the right knee 7. Service connection for an eye disorder 8. Service connection for right ear hearing loss and/or right ear disorder 9. Service connection for left ear hearing loss and/or left ear disorder 10. Service connection for interstitial cystitis 11. Service connection for memory loss/dementia The Veteran asserts that service connection for a torn meniscus in the right knee (right knee disorder) is warranted because he injured it during service. Alternatively, the Veteran contends that a right knee disorder is the result of an amputation below the left knee. See November 2020 Board hearing transcript. The Veteran asserts that right and left ear hearing loss is the result of acoustic trauma and/or a concussion sustained during service; the Veteran contends that the concussion sustained during service also resulted in memory loss/dementia. See November 2020 Board hearing transcript. The Veteran generally asserts service connection for an eye disorder and interstitial cystitis. See June 2013 VA Form 21-526EZ. The determinative question in this case is whether the Veteran has current disabilities of the right knee, right and/or left ear hearing loss, right and/or left ear, eyes, interstitial cystitis, and/or memory loss/dementia. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current disability for right knee, right and/or left ear hearing loss, a right and/or left ear disorder, an eye disorder, interstitial cystitis, and/or memory loss/dementia. VA and private treatment record during the relevant claims period on appeal do not reflect any complaints, symptoms, treatment, or diagnoses for a right knee disorder, right and/or left ear hearing loss, a right and/or left ear disorder, an eye disorder, interstitial cystitis, and/or memory loss/dementia. In the absence of a current disability at any time during or immediately prior to this claim period, the appeals for service connection for a right knee disorder, right and/or left ear hearing loss, a right and/or left ear disorder, an eye disorder, interstitial cystitis, and memory loss/dementia must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.