Citation Nr: 21041858 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 13-18 500A DATE: July 10, 2021 ORDER Entitlement to service connection for a seizure disorder is granted. Entitlement to a rating in excess of 10 percent for status post residuals of lung abscess and chronic obstructive pulmonary disease (lung disability) before May 20, 2015 is denied. Entitlement to a rating in excess of 30 percent for a lung disability from May 20, 2015 to the present is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Seizure disorder is not noted on the Veteran's entrance examination and there is no clear and unmistakable evidence that the Veteran had seizures before he entered service. 2. Resolving reasonable doubt in the Veteran's favor, his seizure disorder began during active service. 3. Before May 20, 2015, The Veteran's lung disability results in a forced expiratory volume in one second (FEV-1) of no less than 87 percent of the predicted value, a ratio of FEV-1 to forced vital capacity (FVC) of no less than 111 percent, and diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) of no less than 68 percent. 4. From May 20, 2015 to the present, the Veteran's lung disability results in a FEV-1 of no less than 61 percent of the predicted value, a ratio of FEV-1 to FVC of no less than 60 percent, and a DLCO of no less than 60 percent; there is no evidence of maximum oxygen consumption of 20 ml/kg/min or less, cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by echo or cardiac catheterization), episode(s) of acute respiratory failure, or the Veteran requires outpatient oxygen therapy CONCLUSIONS OF LAW 1. The criteria for service connection for a seizure disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for a rating in excess of 10 percent for a lung disability before May 20, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6844. 3. The criteria for a rating in excess of 30 percent for a lung disability from May 20, 2015 to the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6844. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1959 to April 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran appeared at a hearing before a Decision Review Officer (DRO) at the DRO. A transcript of the hearing is of record. The Veteran originally requested a hearing before the Board. In August 2014, the Veteran withdrew that request in writing. 38 C.F.R. 20.704(e). In September 2017 and May 2020, the Board remanded the case to the RO for additional development. As the requested development has been completed for the issues decided in this decision, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a seizure disorder Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as epilepsies (seizure disorders). See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). If a disability is noted upon entrance, the disability is considered a pre-existing disability. If the disability is not noted upon entering service, then the presumption of soundness applies, 38 U.S.C. § 1111. The burden is on the VA to show by clear and unmistakable evidence that not only did the disability pre-exist service but that it was not aggravated by service to rebut the presumption. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).) It is evident that the Veteran has a seizure disorder. Service treatment records and medical records since separation have diagnosed the Veteran with a seizure disorder and ongoing treatment for seizures continues to the present day. In this case, the first issue before the Board is whether the Veteran had a seizure disorder which pre-existed service. The Veteran had a normal entrance examination in April 1959, and he did not report a history of epilepsy, seizures, or convulsions. As the Veteran reported other ailments during the entrance examination such as a history of mumps and whooping cough, and, if the Veteran had experienced seizure problems before service, the Board would expect that he would have reported seizure problems to medical professionals. Seizure problems are the type of problem that a reasonable person would report upon entering the military with access to healthcare. The first reference to seizures occurred in August 1959; the record stated that the Veteran had a history of grand mal type convulsions starting in February 1959, or before service. He had been placed on medication with no further convulsions until he ran out of medication one week earlier. He then started having convulsions. The diagnosis was "epilepsy, grand mal EPTS" (EPTS means existed prior to service). December 1959 treatment record indicated the Veteran's seizures had occurred for about 5 months always at night. This placed his seizures starting in approximately July 1959. The January 1960 treatment records noted that the Veteran complained of increased seizures during the past month. In November 1960, the Veteran received a neurological evaluation for his seizures. The neurologist's note indicates the Veteran began having nocturnal grand mal seizures. Despite medication, the seizures continued. The neurologist increased the Veteran's prescription to decrease the amount of seizures. The neurologist specifically found the seizures did not exist prior to service. In April 1961, while being treated for pneumonia, the history stated the Veteran had been diagnosed in February 1959 (e.g. before entrance) at Fort Lee in Virginia. Personnel records establish the Veteran had been stationed at Fort Lee from August 1959 to October 1959. The personnel records and the Veteran's DD 214 establish the Veteran entered service from Texas and there is no evidence to establish the Veteran had been in Virginia in February 1959. During the March 1962 separation examination, evaluation of the neurological system was normal. The corresponding report of medical history, however, noted the Veteran had "epilepsy, nocturnal, completely controlled by b.i.d. dilantin- Existed prior to Service." A veteran is 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Rather, the burden remains with VA to show by clear and unmistakable evidence that the Veteran had a pre-existing disease or injury, and if so, it was not aggravated by service. As noted, the Veteran did not have a seizure disorder noted upon his entrance examination. Thereafter, the evidence is conflicting concerning whether the Veteran's seizure disorder existed before he entered service. While later treatment records refer to seizure problems prior to service, the entrance examination does not and therefore, the Veteran is presumed to be sound. There are no pre-service medical records to the contrary. The Veteran has testified and submitted statements that his seizures began in service and he did not have a seizure problem before service. None of the available evidence clearly and unmistakably establishes that the seizures pre-existed service or was not aggravated by the Veteran's service. As there is no clear and unmistakable evidence of a seizure disorder pre-existing service, the presumption of soundness is not rebutted and the Board will consider the Veteran's claim as one for service connection, rather than one based on aggravation of a pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The evidence need only be in equipoise to grant the benefit sought. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the evidence demonstrates that the seizures first manifested in service, the Veteran is entitled to service connection for his seizure disability The Board acknowledges that January 2013, January 2020, and July 2020 VA examiners (with November 2020 addendums) have determined that the Veteran had a pre-existing seizure disorder that was not aggravated by service. The VA examiners, however, only focused upon the service treatment records finding that the Veteran's seizure's existed prior to service. They did not discuss the lack of such a history in the entrance examination or the November 1960 finding by the neurologist that the onset began in service. Further, at least one of the April 1961 service treatment records had the onset of seizures before service but incorrectly placed the Veteran in Virginia. The examiners do not discuss the conflicting service treatment records and explain why the histories showing a pre- existing disability clearly and unmistakably outweigh the other records showing an onset of seizures starting in service. The examiners also do no discuss the Veteran's lay evidence that his seizures did not begin until he was deployed to France. Finally, the examiners apparently also relied upon a July 2002 treatment note indicating the Veteran started seizure medication in 1956. The Board finds the 2002 note, almost 50 years later, does not constitute clear and unmistakable evidence that the Veteran had a seizure disorder before he entered service. Based upon the foregoing reasons, it appears the VA examiner improperly shifted the burden of proof to the Veteran. Accordingly, seizures or epilepsy is not noted by clinical finding even by history on the entrance examination. The Veteran is presumed to have been in sound condition, pertaining to seizures/epilepsy. Seizures, diagnosed as grand mal epilepsy is first documented in August 1959, after the Veteran entered service. The evidence in favor of the claim includes treatment notes after service, from as early as January 1984 to the present for treatment of the Veteran with medications to reduce or prevent seizures. Further an October 2010 VA examiner stated the Veteran's current seizures resulted from the same seizures treated in service. Thus, there is no clear and unmistakable evidence either before, during, or after service that the Veteran's seizure disorder pre-existed service. As the presumption of soundness as to seizures is not rebutted, the Board must find as a matter of law that seizures first documented during service has been affirmatively shown to have had its onset during service. 38 C.F.R. § 3.303 (a). After resolving all doubt in favor of the Veteran, the Veteran's seizure disorder, diagnosed as epilepsy, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted. See 38 C.F.R. §§ 3.303 (b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 2. Entitlement to a rating in excess of 10 percent for status post residuals of lung abscess and chronic obstructive pulmonary disease (lung disability) before May 20, 2015 Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. From February 24, 2009, to May 19, 2015, the Veteran received a 10 percent disability rating pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6844, for his lung disability. The lung disability had originally been service connected as residuals of surgery for a lung abscess but now includes the Veteran's additional lung diagnosis, chronic obstructive pulmonary disease (COPD). The rating criteria for under Diagnostic Code 6844 or for COPD Diagnostic Code 6604, is the same. Ratings are based on findings from a pulmonary function test (PFT), in particular, Forced Expiratory Volume in one second ("FEV-1"), Forced Expiratory Volume in one second/Forced Vital Capacity ("FEV-1/FVC"), and the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) ("DLCO"). A ten percent rating is awarded for FEV-1 71- to 80-percent predicted; or the FEV-1/FVC 71 to 80 percent predicted; or the DLCO is 66 to 80 percent predicted. A 30 percent rating is warranted for an FEV-1 of 56 to 70 percent predicted; or FEV-1/FVC of 56 to 70 percent; or the DLCO is 56 to 65 percent predicted. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or DLCO is 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned for an FEV-1 less than 40 percent predicted; or FEV-1/FVC less than 40 percent; or DLCO is less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or episode(s) of acute respiratory failure; or requiring outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6844. The post-bronchodilator findings for these PFTs are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre-bronchodilator results are used for rating purposes. See 38 C.F.R. § 4.96 (d)(5). In a June 2009 VA examiner, the Veteran reported daytime sleepiness. He is not receiving any treatment such as oxygen use. There is no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, respiratory failure, or congestive heart failure. The VA examiner stated that the Veteran's lung disability caused a moderate impairment on the Veteran's usual occupation and daily activities. It does not appear pulmonary function test were performed with FVC, FEV-1, FEV-1/FVC, or DLCO results. An August 2014 PFT at Veterans Administration medical center (VAMC) showed post bronchodilator FVC 77 percent predicted, FEV-1 87 percent predicted, and a FEV-1/FVC ratio 111 percent predicted. The DLCO was 68 percent predicted. Based on the foregoing medical evidence and the Veteran's statements, the Board finds that an increased evaluation for service- connected lung disability is not warranted. Based on the pulmonary function test, the Veteran did not have a FEV-1 as low as 56 to 70 percent of predicted value, or a FEV- 1/FVC of 56 to 70 percent. Finally, the DLCO was 68 percent. The Veteran does credibly state that he is bothered by shortness of breath, particularly with exertional activities, due to his disability. Nevertheless, the rating, as noted, depends on the results of the pulmonary function tests. The evidence does not show any result warranting an increase to the next higher rating of thirty percent. There also is no evidence that the Veteran has maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by echo or cardiac catheterization), episodes of acute respiratory failure, or requires outpatient oxygen therapy. Accordingly, the Board concludes the Veteran does not meet the criteria for the next highest rating, 30 percent, at any time during the appeal period from the date he filed his claim to May 19, 2015. 3. Entitlement to a rating in excess of 30 percent for a lung disability from May 20, 2015 to the present Since May 20, 2015, the Veteran is currently assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6844, for his lung disability. The PFT performed on May 20, 2015 showed post bronchodilator FVC 78 percent predicted, FEV-1 81 percent predicted, and a FEV-1/FVC ratio 69 percent predicted. The DLCO was 66 percent predicted. The results were interpreted as a submaximal forced expiratory maneuver, but otherwise the results are normal. There was no significant improvement after administration of an inhaled bronchodilator. The diffusing capacity for carbon monoxide was normal. In a June 2016 VA examination, the VA examiner diagnosed not only residuals from the lung abscess surgery in service but also COPD. The Veteran reported symptoms of shortness of breath and decreased endurance. The condition has worsened over time, which the VA examiner attributed to COPD. The Veteran used an albuterol inhaler as needed. He did not need any other type of medication such as corticosteroids. The Veteran did not require outpatient oxygen therapy for his disability. There is no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, respiratory failure, or congestive heart failure. The post-bronchodilator results showed a FVC 78 percent predicted, FEV- 61 percent predicted, and a FEV-1/FVC ratio 60 percent predicted. The test also showed a DLCO 68 percent predicted. The diffusing capacity for carbon monoxide is decreased, consistent with a mild reduction in gas transfer. The examiner also discovered the Veteran had a separation of the latissimus muscle in left mid back and under arm as a residual of the surgery to treat the lung abscess. The muscle injury is now service connected and rated as two separate muscle disabilities. In January 2020, the Veteran underwent a PFT at VAMC. The results showed post bronchodilator FVC 78 percent predicted, FEV-1 92 percent predicted, and a FEV-1/FVC ratio 116 percent predicted. The DLCO was 60 percent predicted. The interpretation of the results is that the Veteran had a mild restrictive ventilatory abnormality. In March 2021, the Veteran underwent another VA examination. The Veteran did not need corticosteroids to treat his lung disability. He still used an inhalational bronchodilator intermittently. The Veteran did not require outpatient oxygen therapy for his disability. He had not been prescribed any other medication regarding his lung disability. The Veteran reported symptoms of shortness of breath and decreased endurance. A PFT was performed but only the pre-bronchodilator results are noted. The VA examiner stated post-bronchodilator results were not indicated. The results showed a FVC 78 percent predicted, FEV-1 61 percent predicted, and a FEV-1/FVC ratio 60 percent predicted. The VA examiner stated the FVC result best indicated the Veteran's level of disability and a DCLO score was not indicated. The examiner also noted the January 2020 PFT test results both pre- and post- bronchodilator results were below 80-120 percent which is a normal range for those tests. These two tests are the best indicators of the Veteran's lung disability and breathing difficulties. Based on the pulmonary function tests, from May 20, 2015 to the present, the Veteran did not have a post-bronchodilator FEV-1 as low as or even near 40 to 55 percent of predicted value, a FEV-1/FVC of 40 to 55 percent, or a DLCO of 40 to 55 percent. There is no evidence the Veteran suffers from cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension demonstrated on an echo or cardiac catheterization, an episode of acute respiratory failure, or the Veteran requires outpatient oxygen therapy. Again, while the Veteran complains of symptoms such as shortness of breath even when walking short distances, his rating depends on the results of the pulmonary function tests. The evidence does not show any result warranting an increase to the next higher rating of sixty percent. Moreover, neither the VA examiners nor other medical professionals of record have indicated that the reported PFT results did not accurately represent the level of pulmonary impairment manifested by the Veteran's lung disability. The Board therefore finds that the PFT results documented in the record provide an appropriate basis for rating the Veteran's service-connected lung disability because they are an accurate representation of the Veteran's respiratory impairment. See 38 C.F.R. § 4.96 (d)(2). Accordingly, the Board concludes the Veteran does not meet the criteria for the next highest rating, 0 percent, at any time during the appeal period from May 20, 2015, to the present. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. With apologies to the Veteran, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection for hypertension. The prior remands noted VA examiners either failed to provide a rationale for their conclusions (June 2016) or explain how the facts they cited from service supported or lead to the conclusion (January 2020). After the May 2020 remand, a VA examiner provided opinions in July 2020. The Board notes the answers are essentially the same answers as provided in January 2020. The examiner once again did not explain how the blood pressure readings recorded in service demonstrated there was no hypertension in service. The examiner also stated that it was less likely than not that hypertension was due to or aggravated by the Veteran's service-connected postoperative residuals of lung abscess with COPD because there was no evidence to support that claim. Thus, once again the VA examiner has provided a conclusory opinion without analysis. The examiner also failed to provide any rationale for the opinion regarding secondary service connection. Thus, the Board must once again remand the Veteran's claim for a new opinion that ensures the Board's evaluation is a fully informed one. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Ongoing medical records should also be obtained. 2. Entitlement to TDIU is remanded. Finally, because a decision on the remanded issue could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In addition, the TDIU claim will also be impacted by the Veteran's now service- connected seizure disorder disability. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his hypertension and TDIU claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current hypertension disability had its onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current hypertension disability is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) any service connected disability to include as a result of the Veteran's service-connected postoperative residuals of lung abscess with COPD, and his seizure disorder. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.