11-34 022
11-34 022
| Board of Vet. App. | Mar 22, 2017Background
- Veteran served active duty in the Navy (Aug 1961–Mar 1964); died July 2014; appellant is surviving spouse and substitute claimant.
- VA RO denied service connection for a seizure disorder and higher rating for service-connected claustrophobia with depression in Dec 2009; DRO granted TDIU and DEA with effective date April 16, 2009 in Sept 2011.
- Medical record shows diagnosis of Psychogenic Non-Epileptic Seizures (PNES) and established service connection for claustrophobia with depression.
- January 2014 psychiatrist and February 2017 VHA neurology expert opined PNES were psychogenic and at least as likely as not proximately caused by the service-connected mental condition (stress-triggered).
- An October 2009 VA examiner gave an adverse nexus opinion but did not consider family lay statements about stressors; Board afforded that opinion no probative value.
- Board granted service connection for seizure disorder as secondary to claustrophobia with depression and remanded the remaining issues (higher rating, TDIU/DEA effective date) to the AOJ for further development, including obtaining VA records through July 2014 and assigning an initial rating/effective date for the seizure disorder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for seizure disorder (secondary to claustrophobia with depression) | Seizures are PNES and are proximately caused/triggered by service-connected claustrophobia with depression (supported by psychiatrist and family lay statements) | RO previously denied, asserting seizure not caused by psychiatric condition (earlier negative nexus) | Granted: Board found medical opinions and lay evidence establish nexus; service connection awarded |
| Rating in excess of 70% for claustrophobia with depression | Appellant seeks higher rating for psychiatric disability | RO denied increase in Dec 2009 | Remanded to AOJ for further development (not decided) |
| Effective date earlier than Apr 16, 2009 for TDIU | Appellant contends entitlement to TDIU prior to Apr 16, 2009 | RO assigned Apr 16, 2009 as effective date when granting TDIU | Remanded as inextricably intertwined with the initial rating/effective date assignment for the newly service-connected seizure disorder |
| Effective date earlier than Apr 16, 2009 for DEA benefits | Appellant seeks earlier DEA eligibility date | RO set Apr 16, 2009 | Remanded along with TDIU issue pending AOJ action on seizure rating/effective date |
Key Cases Cited
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (explains requirement that medical opinions provide clear conclusions with supporting data and rationale)
- Reonal v. Brown, 5 Vet. App. 458 (VA must consider competent lay evidence regarding observable stressors/events)
- Allen v. Brown, 7 Vet. App. 439 (standards for establishing secondary service connection)
- Sullivan v. McDonald, 815 F.3d 786 (duty to obtain private/other records and ensure records development)
- Bell v. Derwinski, 2 Vet. App. 611 (requirement to obtain outstanding VA records)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant may submit additional evidence after remand)
- Harris v. Derwinski, 1 Vet. App. 180 (claims inextricably intertwined may be remanded together)