Citation Nr: A25028811 Decision Date: 03/27/25 Archive Date: 03/27/25 DOCKET NO. 210903-183992 DATE: March 27, 2025 ORDER The claim of entitlement to service connection for a seizure disorder is denied. The claim of entitlement to service connection for vertigo is denied. The claim of entitlement to service connection for a traumatic brain injury (TBI) is denied. REMANDED The claim of entitlement to service connection for bladder incontinence, to include a urinary frequency disorder, is remanded. The claim of entitlement to service connection for migraine headaches is remanded. The claim of entitlement to service connection for right thumb pain is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a seizure disorder at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran has had a condition assessed as vertigo at any time during or approximate to the pendency of the claim. 3. The evidence of record persuasively weighs against finding that the Veteran has had a TBI at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a seizure disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for vertigo are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Marine Corps from March 2000 to June 2014, which included service in Southwest Asia (SWA). He received the Iraq Campaign Medal with one star, among other notable decorations. The rating decision on appeal to the Board of Veterans' Appeals (Board) was issued in August 2021 by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The modernized review system, also known as the Appeals Modernization Act (AMA), applies to these appeals. In August 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a July 2021 decision. In August 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2021 decision. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2021 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. As for the service connection claims for a seizure disorder, vertigo, and a TBI, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for migraine headaches, a bladder disorder, and a right thumb condition, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. The claim of entitlement to service connection for a seizure disorder. See section three, below. 2. The claim of entitlement to service connection for vertigo. See section three, below. 3. The claim of entitlement to service connection for a TBI. The Veteran seeks service connection for conditions claimed as a seizure disorder, vertigo, and TBI. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. 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(b). The benefit-of-the-doubt rule applies if the competing evidence is "nearly equal" or in "approximate balance." The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The question for the Board is whether the Veteran has current disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a seizure disorder, vertigo, or a TBI, and has not had such diagnoses at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In assessing whether the Veteran has a current diagnosis, the Board has considered all evidence available for review, including the Veteran's lay statements, service records, and medical records. According to the Veteran's April 2020 VA 21-526EZ, Fully Developed Claim, he listed the claimed conditions of seizure disorder, vertigo, and TBI but did not include any other information regarding the conditions, such as the onset, history, or potential cause of the conditions. He did not include any information regarding when, where, or whether he received medical treatment for the claimed conditions. Review of the Veteran's service treatment records (STRs) does not reveal complaint, treatment, or diagnosis for the conditions during the Veteran's service. The Veteran's post-service VA treatment records that are available for the Board's review indicate that he has expressly denied experiencing the claimed conditions or symptoms thereof. For example, in a June 2018 mental health treatment note, the Veteran reported having a history of migraine headaches but denied a "history of head trauma, seizure disorder, dizziness, vertigo," and other conditions. His head was noted as "normocephalic, atraumatic." An emergency room treatment examination in June 2018 also noted no dizziness present. In a July 2018 social work intake questionnaire, the Veteran denied seizures. A December 2020 VA traumatic brain injury screening was negative, noting that the Veteran "denies experiencing any TBI related events during deployment." A corresponding new patient note indicates that he reported "no [history] of head trauma. No explosion or blasts in the past." VA examinations regarding the Veteran's service-connected posttraumatic stress disorder (PTSD) identified no TBI present or shown in the Veteran's medical history. Likewise, these VA examinations did not suggest the presence of symptoms of vertigo or a seizure disorder. In a September 2021 Appellate Brief, the Veteran's representative at the time did not identify any evidence of record that could support a finding of a current diagnosis or identify evidence of recurrent symptoms of the claimed conditions. The Board acknowledges that on the same date as the Veteran submitted his VA 10182, he submitted a legacy notice of disagreement regarding the same claimed conditions, and he asserted that the conditions "were incurred or aggravated during my tour of active duty." However, this and other lay statements of record do not include any indication or evidence regarding what, if any, persistent or recurrent symptoms the Veteran may experience pertaining to the claimed conditions. Based on the evidence above, the Veteran's lay statements and medical records consistently indicate that the Veteran does not have a seizure disorder, TBI, or vertigo, and has not had such disorders during the appeal period. The Veteran is competent to report subjective symptoms, such as dizziness. He is also competent to report a history of head injury and of experiencing seizures; however, he has expressly denied such experiences and symptoms. The Board finds this lay evidence to be persuasive and to weigh against the Veteran's claims. The Board acknowledges that the AOJ did not provide VA examinations in developing these claims. VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also acknowledges that the threshold to provide VA examinations is low; however, as discussed above, this threshold is not met as there is no competent evidence of a current disability or of persistent or recurrent symptoms of a disability for the claimed conditions. Similarly, as the Veteran has denied relevant symptoms pertaining to TBI, vertigo, and seizures, there is no indication that the conditions may be secondarily related to a service-connected condition. Further, there is no indication from the Veteran's STRs to show that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies. The Veteran did not complain of and was not diagnosed with the claimed conditions during his service. As such, the Board finds it was appropriate for the AOJ not to provide VA examinations regarding these conditions. Under the AMA, VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error. 38 U.S.C. § 5103A(e); 38 C.F.R. § 3.159(c). Remand by the Board in the AMA is proper for correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. §?20.802(a). For the issues of entitlement to service connection for a seizure disorder, vertigo, and TBI, the Board finds no basis to award the benefits sought and further finds no pre-decisional errors that would permit the Board to remand these matters for additional development. Accordingly, the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for the conditions claimed as a seizure disorder, vertigo, and a TBI is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The claim of entitlement to service connection for bladder incontinence, to include a urinary frequency disorder, is remanded. See section three, below. 2. The claim of entitlement to service connection for migraine headaches is remanded. See section three, below. 3. The claim of entitlement to service connection for right thumb pain is remanded. The Veteran seeks service connection for conditions claimed as bladder incontinence, migraine headaches, and right thumb pain. For these conditions, the Board finds that the AOJ committed duty to assist errors prior to issuing the rating decision on appeal and that these errors must be corrected to properly adjudicate the claims. Specifically, unlike the Veteran's claims for vertigo, TBI, and seizures, there is indication in the Veteran's medical records that he has complained of symptoms that may be relevant to each of the claimed conditions. For example, in a June 2018 VA Mental Health Discharge summary, he reported having a history of migraine headaches, "urinary frequency" and a history of fracture of the right thumb. A December 2020 VA treatment record shows that the Veteran had a history of migraines with photophobia. Regarding the thumb and migraine conditions, the AOJ favorably found that the Veteran had been "diagnosed with a disability" based on these VA treatment records. See August 2021 Rating Decision. There is also at least an indication that the conditions may have been incurred in or are associated with the Veteran's service. For example, a Medical Surveillance Questionnaire completed by the Veteran during his service, includes a list of "potential hazards" the Veteran was exposed to because of military occupations. The Veteran reported exposures including "gas chamber," "radiation," and "OC spray." Regrettably, the AOJ did not obtain VA medical opinions addressing whether the claimed conditions could have been related to these (or other) toxic or hazardous exposures during the Veteran's service, which included extensive service in SWA. Additionally, while the AOJ did obtain a medical examination and opinion regarding the migraine condition, the "examination" was conducted based solely on "review of available records (without in-person or video telehealth examination)" because the examiner found the "existing medical evidence provided sufficient information" regarding the claimed condition. Despite this conclusion, the examiner stated they could not "confirm a diagnosis of migraines with medical records provided." Considering the AOJ's favorable finding of a current diagnosis and the medical evidence that the Veteran experiences migraines with photophobia, the VA medical opinion is inadequate. The examiner's opinion also fails to adequately address whether the condition was caused or is aggravated by the Veteran's service-connected psychiatric disorder. As for the bladder incontinence claim, while complaint of "urinary frequency" does not establish that the Veteran has a current bladder disability, the reported symptom is at least enough to fulfill the first prong of the McLendon test and to expand the claim. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As discussed above, the Veteran's service records establish that he had service in SWA and that he reported exposure to potentially "hazardous" materials and conditions. As such, the AOJ should have obtained a medical examination and opinion regarding the nature and etiology of the claimed bladder condition. Finally, as for the thumb condition, the Board acknowledges that the Veteran did not complain of thumb pain at his separation from service and that the circumstances surrounding his history of fracture of the finger are unclear from the evidence currently of record. Nevertheless, the Board finds that the AOJ committed a pre-decisional duty to assist error in failing to obtain a medical examination regarding the condition. First, there is evidence of recurrent thumb pain that the Veteran reports is related to his active service. Further, it appears that the AOJ failed to consider whether such an injury could have been incurred during the Veteran's combat service in SWA. See 38 U.S.C. § 1154(b) (an evidentiary mechanism which permits Veterans who have engaged in combat to effectively establish the incurrence or aggravation of a disease or injury in service by lay or satisfactory evidence of service incurrence or aggravation, even though there is no official record of such incurrence or aggravation in service). As such, remand is warranted to ascertain the nature and etiology of the claimed conditions. In remanding this case, and unless otherwise stated above, the Board makes no express or implied credibility determinations regarding the evidence currently of record. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations regarding the nature and etiology of the claimed conditions of migraine headaches, right thumb pain (with history of fracture), and bladder incontinence (to include a urinary frequency disorder). 2. The examiners must review all relevant evidence of record, including all STRs and relevant personnel/decoration records, VA treatment records and past examinations, all lay statements provided by the Veteran, and any contentions submitted by his representative. The examiners should be provided relevant information regarding the Veteran's history of in-service exposure to hazardous materials and circumstances, to include as identified on the Veteran's Medical Surveillance Questionnaire. The examiners should be provided a copy of this remand. 3. Migraine Headaches: (a.) The examiner should take a history from the Veteran regarding the migraine headache condition, including the approximate date and circumstances of incurrence and the course since onset. (b.) The examiner shall opine whether the disability is at least as likely as not related to service. In so opining, the clinician should consider whether the condition is related to the Veteran's service in SWA, to include his reported and presumed exposures to hazardous materials and conditions. (c.) The examiner shall opine whether the migraine headache is at least as likely as not due to the Veteran's service-connected PTSD with moderate alcohol use disorder. (d.) The examiner shall opine whether the migraine headache disorder is at least as likely as not aggravated, i.e., made worse, by the Veteran's service-connected PTSD with moderate alcohol use disorder? The examiner should provide a rationale to support all opinions. 4. Bladder Incontinence/Urinary Frequency Disorder: (a.) The examiner should take a history from the Veteran regarding the claimed bladder incontinence/urinary frequency disorder, including the approximate date and circumstances of incurrence and the course since onset. (b.) The examiner should identify whether the Veteran has a current genitourinary condition, to include a bladder incontinence/urinary frequency disorder. (c.) For any identified condition, the examiner should opine whether the disability is at least as likely as not related to service. In so opining, the clinician should consider whether the condition is related to the Veteran's service in SWA, to include his reported and presumed exposures to hazardous materials and conditions. The examiner should provide a rationale to support the opinion(s). 5. Right Thumb: (a.) The examiner should take a history from the Veteran regarding the thumb condition, including the approximate date and circumstances of incurrence and the course since onset. (b.) The examiner should identify whether the Veteran has a current right thumb condition, to include as due to pain. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (c.) For any identified condition, is the disability at least as likely as not related to service, to include as during a combat deployment to SWA? The examiner should provide a rationale to support the opinion(s). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, Associate 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.