Citation Nr: 21040790 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-01 038 DATE: July 7, 2021 ORDER Entitlement to service connection for focal motor seizures, as secondary to hemorrhagic cerebrovascular accident, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to January 30, 2020, is remanded. FINDING OF FACT The Veteran's focal motor seizures are proximately due to his service-connected hemorrhagic cerebrovascular accident. CONCLUSION OF LAW The criteria for service connection for focal motor seizures, as secondary to a hemorrhagic cerebrovascular accident, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1969 to February 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in March 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In July 2019, the Board remanded the issues of entitlement to service connection for bilateral hearing loss, hypertension, hemorrhagic cerebrovascular accident and seizures, and TDIU, for further development. In June 2020, the Board granted service connection for hypertension and remanded the issues of bilateral hearing loss, hemorrhagic cerebrovascular accident and seizures, and TDIU. In September 2020, the RO granted service connection for hemorrhagic cerebrovascular accident frontal, upper left extremity muscle weakness, and lower left extremity muscle weakness. In March 2021, the RO granted service connection for bilateral hearing loss and a TDIU, effective January 30, 2020. 1. Entitlement to service connection for a seizure disorder. The Veteran seeks entitlement to service connection for a seizure disorder. See April 2013 statement. Of note, this issue was originally claimed by the Veteran and adjudicated by the RO as a claim for service connection for a seizure disorder. The July 2019 Board remand rephrased the issue as "service connection for a hemorrhagic cerebrovascular accident and seizure disorder." Importantly, in September 2020, the RO then granted service connection for hemorrhagic cerebrovascular accident, however, there was no discussion or analysis regarding the issue of a seizure disorder. Therefore, although the RO considered the September 2020 rating decision a complete grant of benefits sought on appeal for this issue, the Board finds the issue of entitlement to service connection for a seizure disorder is still on appeal. Additionally, the Board notes that the issue was not included on the most recent supplemental statement of the case in May 2021; however, the Veteran is not prejudiced by the Board's proceeding with an adjudication in the matter, as the below decision grants the Veteran's claim in full. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); 38 C.F.R. § 3.303. Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Because the Board is granting this claim on a secondary basis based on causality, it will not discuss direct service connection in this section. The Veteran was afforded a VA examination in June 2013, at which time he was noted to have a diagnosis of focal motor seizures, which required continuous medication for control. As such, element (1) set forth under Allen, current disability, has been satisfied. The Veteran is service connected for a hemorrhagic cerebrovascular accident. See September 2020 rating decision. The Board finds that the evidence is at least in equipoise that his focal motor seizures are proximately due to his service-connected hemorrhagic cerebrovascular accident. An August 2013 VA treatment note states the Veteran was there for a follow up for a right frontal intracerebral brain hemorrhage (ICH) "with resulting seizure like activity 3 months later." It was then noted that given his history of a focal seizure with ICH he would need to be on antiepileptic medications. In June 2013, the VA examiner opined that the Veteran's seizure was most likely caused by his brain bleed. In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. Accordingly, the Board finds that element (2) under Allen, nexus, has been satisfied and the appeal for entitlement to service connection for a seizure disorder, diagnosed as focal motor seizures, is granted as proximately due to his service-connected hemorrhagic cerebrovascular accident. REASONS FOR REMAND 2. Entitlement to a TDIU, prior to January 30, 2020. As noted, entitlement to a TDIU was granted in a May 2021 rating decision, effective January 30, 2020. However, the Veteran asserts he could no longer work due to his service-connected disabilities as early as May 2011. Prior to January 30, 2020, the Veteran did not meet the schedular percentage requirements for entitlement to a TDIU. As a result of this Board decision, however, the Veteran has been granted entitlement to service connection for focal motor seizures. The AOJ must assign disability ratings in the first instance; such assignment may impact whether the Veteran satisfies the schedular requirements for a TDIU rating, prior to January 30, 2020, as set forth in 38 C.F.R. § 4.16 (a). Thus, a decision by the Board on the Veteran's TDIU claim would be premature. (Continued on the next page) The matters are REMANDED for the following action: Assign a disability rating and effective date for the Veteran's focal motor seizures; readjudicate the Veteran's claim for entitlement to a TDIU, prior to January 30, 2020. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.