Citation Nr: 1648517	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  09-15 868	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for syncopal episodes/blackouts, claimed as a seizure disorder, to include as secondary to service-connected hypertension.

2.  Entitlement to service connection for anemia, to include as secondary to service-connected chronic renal disease/hypertension. 

3.  Entitlement to an initial compensable disability rating for Raynaud's phenomenon.


REPRESENTATION

Appellant represented by:	Travis Sayre, Attorney-at-Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel 


INTRODUCTION

The Veteran, who is the appellant, had active service from December 1975 to December 1979.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from May 2008 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

The Veteran appeared at a hearing before a local hearing officer at the RO in January 2010.  A transcript of the hearing is of record.  

With regard to the claim of service connection for a seizure disorder, the Board notes the holding of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), and has concluded that it is applicable here.  In Clemons, the veteran specifically requested service connection for PTSD; the Board narrowly construed the claim and denied service connection for PTSD based on the absence of a current diagnosis, but the medical record also included diagnoses of an anxiety disorder and a schizoid disorder.  The Court, in vacating the Board's decision, pointed out that a claimant cannot be held to a "hypothesized diagnosis - one he is incompetent to render" when determining what his actual claim may be.  The Court further noted that the Board should have considered alternative current conditions within the scope of the filed claim.  Id.  As it relates to the current claim, while the issue was initially phrased as a seizure disorder, the Board has expanded the issue to include syncopal episodes/blackouts based upon the medical evidence of record and the Veteran's statements of having seizure-like episodes.  

In a May 2014 rating decision, the RO granted service connection for Raynaud's phenomenon and assigned an initial noncompensable disability rating.  The Veteran filed a timely NOD to the initial rating in June 2014.  In the August 2014 remand, the Board remanded this issue for the issuance of a statement of the case (SOC).  To date, the SOC has not been issued.  

The issue of entitlement to an initial compensable disability rating for Raynaud's phenomenon is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). 


FINDINGS OF FACT

1.  The Veteran has not been shown to have seizure disorder; however, the Veteran's syncopal episodes have been shown to be etiologically related to his service-connected hypertension.

2.  The Veteran's current anemia has been shown to be etiologically related to his service-connected chronic renal disease.  


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in favor of the Veteran, syncopal episodes are caused by the service-connected hypertension.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015).

2.  Resolving reasonable doubt in favor of the Veteran, anemia is caused by the service-connected renal disease.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353  (Apr. 30, 2008). 

As the Board is granting the full benefit sought on appeal as it relates to service connection for anemia and syncopal episodes/blackouts, as claimed as seizures, the claims are substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A (a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 

In this regard, in order to establish service connection for the claimed disorder, there must be (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.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b).  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The Board observes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006.  Under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4 ) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  See 38 C.F.R. § 3.310(b) (2015).  To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102. 

In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).



Syncopal Episodes/Blackouts, also Claimed as Seizures

The Veteran maintains that his current blackouts/syncopal episodes, also claimed as seizures, are related to his service-connected hypertension and/or medications taken as a result of his hypertension.  In the alternative, he claims that his seizures had their onset in service.  

A review of the Veteran's service treatment records reveal no complaints/findings of seizures in service.  At the time of the Veteran's August 1979 service separation examination, normal neurological findings were reported.  On his August 1979 service separation report of medical history, the Veteran checked the "no" boxes when asked if he had or had ever had epilepsy or fits; or periods of unconsciousness.  

In June 2007, the Veteran was hospitalized with complaints of feeling hazy.  Following a work-up, the examiner indicated that the Veteran had a probable vasovagal response to hypotension with increase in beta blockers and ambient temperature with overheating.  He stated that this was a difficult case in that he did not have any verification of the Veteran's records.  He noted that clearly one might put a history together with the increase in the beta blocker and the exposure to the heat as simply him having a vasovagal response and momentarily going out and losing consciousness.  

In a September 2007 statement, the Veteran indicated that he had had a number of recent seizures as a result of his high blood pressure.  He reported that he had had at least 6 seizures. 

At his January 2010 hearing, the Veteran testified that the doctors had not reported that he had had seizures but that what he was experiencing was like a seizure disorder.  He noted that it was the doctor's opinion that maybe the medication he was taking for his blood pressure was causing his symptoms.  

At the time of a December 2013 VA examination, the examiner noted that the Veteran did not have a seizure disorder.  She observed that the Veteran had had several EEGs in the private sector and at the Pittsburgh VAMC that did not show any evidence of seizure disorder.  The examiner noted that when the Veteran was admitted in June 2007 at the private sector facility, hypotensive seizure was considered to be a possible cause of the Veteran's symptoms, and an EEG was ordered.  There was no seizure activity (profound hypotension can cause seizure activity but the EEG in 2007 did not show seizure activity so there was no diagnosis of seizure).  The Veteran was diagnosed with a vasovagal episode (syncope).  This was confirmed by providers at the VAMC in Pittsburgh in 2009.  The examiner stated that the Veteran did not have seizures and that the Veteran had had syncopal episodes (passing out).  She opined that these syncopal episodes were most likely caused by or a result of the service-connected essential hypertension.  She noted that the Veteran had vasovagal syncope secondary to hypotension (hypotensive syncope) and that a review of records indicated that the episodes of hypotension and hypertension urgency the Veteran had experienced were possibly due to him self-adjusting his medications. 

As to seizures, in the absence of proof of present disability there can be no valid claim.  See Brammer v. Derwinski, 3 Vet. App. at 225 (1992); see also Degmetich v. Brown, 104 F.3d at 1328 (1997) 

To be present as a current disability, there must be evidence of the condition at some time during the appeal period.  The medical evidence does not indicate that the Veteran has a current diagnosis of seizures. 

Based on the above, to the extent that the medical evidence addresses whether the Veteran has a seizure disorder, it indicates that he does not.  The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record.  See Grover v. West, 12 Vet. App. 109, 112 (1999).  To the extent that the Veteran has indicated that he currently has seizures, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits.  Moreover, as the question of causation extends beyond an immediately observable cause-and-effect relationship he is not competent to render a diagnosis or address etiology in the present case.  Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran currently has a seizure disorder falls outside the realm of common knowledge of a lay person.  An opinion of etiology would require objective clinical testing that the Veteran is not competent to perform.  Consequently, his statements as to a current diagnosis of a seizure disorder are not probative. 

The weight of the evidence is against a finding that the Veteran currently has a seizure disorder.  A necessary element for establishing service connection-evidence of a current disability-has not been shown.

However, the Veteran has been diagnosed as having syncopal episodes.  Moreover, the January 2010 VA examiner has opined that these syncopal episodes were most likely caused by or a result of the service-connected essential hypertension.  Given the finding of syncopal episodes and the medical nexus between the Veteran's service-connected hypertension and these syncopal episodes, service connection is warranted on a secondary basis.  Resolving reasonable doubt in favor of the Veteran, service connection for syncopal episodes is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Anemia

The Veteran maintains that his current anemia arises either as a result of either his service-connected current renal disease or hypertension.  

A review of the Veteran's post-service treatment records reveals that he was seen in August 2005 and was assessed as having new onset anemia and thrombocytopenia as well as mild renal insufficiency and hypertension.  At the time of an October 2005 outpatient visit, the Veteran was diagnosed as having anemia, most likely secondary to erythropoietin deficiency probably from renal insufficiency.  

The Veteran was afforded a VA examination in January 2013.  At that time, the examiner, a VA physician's assistant, noted that while the hematology records prior to 2008 documented that the renal insufficiency was the likely cause of the anemia; the anemia clearly pre-existed the development of renal insufficiency  She observed that the Veteran had anemia in 2005 but did not develop renal insufficiency until (no date provided).  She noted that the hematology note from October 2005 attributed anemia to most likely secondary to erythropoietin deficiency probably from renal insufficiency; however, the Veteran's iron studies and erythropoietin levels were normal as was his renal function.  She opined that there was nothing in the medical records to indicate that the development of mild transient renal insufficiency permanently aggravated the pre-existing anemia.

While the VA examiner has indicated that the Veteran had anemia prior to his development of his chronic renal insufficiency, the Board notes that the anemia was diagnosed at the same time the Veteran was diagnosed as having renal insufficiency.  In addition, the VA examiner did not specifically identify when the Veteran was actually diagnosed with renal insufficiency in her January 2010 VA examination report.  Given the foregoing, the Board is assigning little probative value to the January 2010 VA examiner's opinion.  

In the current case, the medical evidence is at least in equipoise that the Veteran's current service-connected renal insufficiency caused and/or aggravated his current anemia.  In such a case, reasonable doubt must be resolved in favor of the Veteran  Accordingly, service connection for anemia, as secondary to service-connected chronic renal disease, is warranted.  As the Board is granting service connection for anemia as secondary to his service-connected chronic renal disease, there is no need to address the claim of secondary service connection due to hypertension.  


ORDER

Service connection for a syncopal episodes is granted.

Service connection for anemia is granted.

REMAND

As noted above, the RO, in a May 2014 rating decision, granted service connection for Raynaud's phenomenon and assigned an initial noncompensable disability rating.  The Veteran filed a timely NOD to the initial rating in June 2014.  In the August 2014 remand, the Board remanded this issue for the issuance of a statement of the case.  To date, the SOC has not been issued.  The Board is required to again remand the case for issuance of the SOC.  Manlicon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Issue the Veteran and his attorney a Statement of the Case, accompanied by notification of his appellate rights, which addresses the issue of entitlement to an initial compensable disability rating for Raynaud's phenomenon.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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