Citation Nr: 0109649 Decision Date: 03/30/01 Archive Date: 04/03/01 DOCKET NO. 93-01 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran served on active duty from February 1985 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In December 1994 and August 1997, the case was remanded for further development. The matter is now ready for final appellate consideration. In September 1997, the veteran's claims file was transferred to the Waco, Texas RO, which in August 2000 issued a supplemental statement of the case (SSOC) addressing the issues considered herein. FINDING OF FACT The preponderance of the evidence is against finding that the appellant demonstrated either a seizure disorder or schizophrenia during his active duty service, and the preponderance of the evidence is against finding that either disorder was compensably disabling within a year of the veteran's separation from active duty. CONCLUSION OF LAW Neither a seizure disorder nor schizophrenia was incurred or aggravated during active service, and neither disorder may be presumed to have been so incurred. 38 U.S.C.A. § 1131 (West 1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. § 3.303, 3.307, 3.309 (2000). REASONS AND BASES FOR FINDING AND CONCLUSION i. Background The veteran filed his claim for compensation for schizophrenia and a seizure disorder in July 1991. He contends that he experienced his first seizure the day after his separation from active duty, and that he was treated for a psychosis within one year after such separation. He maintains that these disorders can be traced to a head injury that he says he sustained while on active duty. A review of the service medical records fails to reveal any evidence that the veteran sustained a head injury during service. Moreover, they do not indicate that he manifested a psychiatric disorder or seizures at that time. The service medical records do note a diagnosis of suspected psychogenic back pain in December 1986. Physical examination for medical board proceedings in January 1987, revealed the appellant to be neurologically and psychiatrically normal. Post-service records show that in July 1987, the appellant was seen at a VA Medical Center (VAMC) for a multiple year history of heavy cocaine use, and that he was treated that month for cocaine dependence. VA records document a diagnosed seizure disorder beginning in October 1988. At that time a treatment note states by way of history that the veteran had been seen three days before at a private hospital for a seizure, and that he had come to VA to refill his anti-seizure medication. VA records also show that the veteran was treated at a VAMC for seizures in February and March 1989. In February 1989, the appellant was noted to have attempted suicide, and in March 1989, he was diagnosed with schizophrenia after it was determined that he suffered from auditory hallucinations and paranoia. The veteran was hospitalized by VA in March 1989 with complaints of auditory hallucinations, which reportedly first began following a claimed head injury in 1985. The diagnoses included organic hallucinations, polysubstance abuse, and a seizure disorder. Diagnoses of a seizure disorder, psychosis, drug abuse, and alcohol abuse also are set out in a hospitalization record dated in April 1989 from the West Los Angeles (Wadsworth) VAMC, at which time a head CT scan was reported as normal. At that time the veteran reported a history of a seizure disorder since June 1987 secondary to head trauma. Records from the VAMC in Fresno, California indicate that the veteran was treated as an inpatient in January 1990 for organic hallucinosis and cocaine abuse. The claims file also contains a November 1991 statement submitted by the veteran's treating VA psychiatrist who opined that the appellant's schizophrenia was related to his seizure disorder and a past head injury, and not to drug use. Also of record is a November 1991 VAMC discharge summary that noted diagnoses of chronic paranoid schizophrenia, a history of alcohol abuse, and epilepsy. Medical records from the Patton State Hospital in Patton, California document that the veteran was admitted in October 1994 after having been found incompetent to stand trial for attempted burglary. These records document diagnoses of schizoaffective disorder, depressed, and cocaine abuse. In May 1998, a statement by a VA staff psychiatrist was obtained. The psychiatrist reviewed the claims folder and addressed the contention of the veteran that he had received continuous treatment for a seizure disorder since the day after his separation from active duty. The psychiatrist observed that the medical records of the veteran do not document any treatment for a seizure disorder or psychosis during the year following his discharge from service. He noted that when the veteran was treated for cocaine dependence at the West Los Angeles (Brentwood), California VAMC in July 1987, no cognitive deficits or psychosis was identified. In August 2000, the veteran was found to be competent for compensation purposes by VA. ii. Analysis a. Duty to assist VA has a duty to assist a veteran who has filed a claim for a VA benefit with the development of any evidence that is potentially probative of that claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The Board finds with respect to the claims now before it that VA has fulfilled this duty. In this regard, the Board notes that in December 1994 and August 1997 remands, it instructed the RO to obtain from the veteran signed releases permitting it to secure private medical records that might substantiate his claims. The veteran had asserted that there were records that would show that he was treated at Lake Charles Memorial Hospital for seizures in May 1987, as well as from January to March 1988. In addition, an October 1988 treatment note from a VAMC stated that the veteran had been seen three days before at Kern County Medical Center for a seizure. The treatment note said that the veteran had come to the VAMC to obtain a refill of anti- seizure medication, thus suggesting that he may have been diagnosed with a seizure disorder sometime before October 1988. It is documented in the claims file that in December 1994, August 1997 and January 1998, the RO sent the veteran at his address of record forms for release of those records and asked the appellant to sign and return those forms. However, the veteran failed to execute and return either set of releases. The RO's efforts to secure releases in accordance with prior remands comport with the directives of the new legislation that forms necessary to complete an application for benefits and notice of information and evidence required to substantiate a claim be furnished to claimants. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ____ (to be codified as amended at 38 U.S.C. §§ 5102 & 5103, respectively). The veteran, however, failed to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is not a one way street. "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.") The Board acknowledges that for one of the two sets of records the claims file contains a release that the veteran executed in 1991. (The Board notes as well that the RO went on in 1991 to try to obtain the records that were released but met with no success.) In the Board's experience, however, a release dated in 1991 is too old to serve to secure records in 2001. Current releases were required in the cases of both sets of records, and despite multiple efforts by the RO to secure them the veteran failed to furnish them. The RO last reminded the veteran of his default and the consequent unavailability of the records in question in its August 2000 supplemental statement of the case, but the veteran did not submit executed releases thereafter. Nor, of course, did the veteran submit the medical records in question himself, although in seeking the releases the RO also advised him of his option to do so. This evidence might have substantiated the contention of the veteran that he was diagnosed with a seizure disorder within the year following his separation from active duty. As such, under the law referred to below, the evidence might have helped to establish entitlement to service connection got a seizure disorder on a presumptive basis. Now, however, because of the veteran's failure to cooperate, the claim must be considered without this evidence. Also in accordance with the instructions in the August 1997 Remand, the RO scheduled the veteran for a VA examination. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, § 3(a), 114 Stat. 2096, ____ (2000) (to be codified at 38 U.S.C.A. § 5103A.) The examination was first scheduled for a date in September 1997. The veteran, however, failed to report for the study. Another examination was scheduled for a date in May 1998. Again, the claims file reflects that the veteran failed to attend. The veteran has not contended that he did not receive the notice of these examinations. Indeed, a presumption of regularity attaches to the acts of public officials, and this presumption is rebuttable only by clear evidence to the contrary. See Ashley v. Derwinski, 2 Vet. App. 62 (1992). Given this presumption and the fact that the claims file contains no evidence to the contrary, it must be concluded that the veteran was given due notice of his scheduled examinations with the VAMC. See Mason v. Brown, 8 Vet. App. 44, 53-55 (1995). Furthermore, the veteran has not offered any good cause for having failed to submit to examination. 38 C.F.R. § 3.655 (2000) Because the veteran failed without good cause to report for examination, and thus prevented the development of evidence pertinent to his claims, they will be considered on the basis of the other evidence of record. 38 C.F.R. § 3.655(b). b. Seizure disorder and schizophrenia In general, service connection may be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Direct service connection may be established for a current disability when the evidence shows affirmatively that the disability resulted from injury or disease incurred (or aggravated) during active service. Id. Direct service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). If in the case of a veteran with 90 days or more of continuous active service occurring after December 31, 1946, schizophrenia and/or a seizure disorder becomes manifest to a compensable degree within the post-service period prescribed by law, the particular disease will be considered to have been incurred in service even absent evidence to that effect unless there is affirmative evidence to the contrary (including a showing of an intercurrent cause for the disease). 38 C.F.R. §§ 3.307, 3.309. Thus, service connection requires a conclusion that a veteran has a current disability which is related to an injury or disease incurred (or aggravated) in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). Furthermore, the separate facts supporting service connection- - a current disability, the incurrence or aggravation of an injury or disease during service, and a nexus, or causal relationship, between the in-service injury or disease and the current disability, see Caluza v. Brown, 7 Vet. App. 498, 506 (1995) - - each must be established by competent evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). When a proposition is medical in nature, such as medical nexus, etiology, or diagnosis, then usually only evidence founded on medical expertise, as opposed evidence consisting of lay opinion or assertions, will be considered competent to address it. Voerth v. West, 13 Vet. App. 117 (1999). A claim of entitlement to service connection will be granted unless a preponderance of the evidence of record is against it. Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, § 4, 114 Stat. 2096, ____ (to be codified as amended at 38 U.S.C. § 5107). The medical evidence of record demonstrates that the veteran suffers from schizophrenia and a seizure disorder. The other elements of entitlement to service connection have not, however, been established by competent evidence sufficient to warrant a finding of service connection for either disability. There is no showing in the medical documentation of record that during his active service, the veteran developed any condition that might have represented, or incurred any injury that might have led to, either a seizure disorder or schizophrenia. Nor is there a medical opinion of record linking the post-service development of either condition to anything that occurred during service. The November 1991 opinion of the VA psychiatrist purports to establish a link between the seizure disorder and the veteran's service, but because it is founded on an assumption that the veteran sustained a head injury during service. That assumption has not been verified by the evidence, and hence, a medical opinion based on a faulty history has no probative value. See generally, Black v. Brown, 5 Vet. App. 177 (1993). Although service connection may be established for a disease first diagnosed after discharge when the evidence taken together establishes that the disease was incurred during service, 38 C.F.R. § 3.303(d) the preponderance of the evidence is against such a conclusion in this case. In advancing his claim, the veteran has argued that he developed his seizure disorder and schizophrenia within a year after his separation from active duty. If that were the case, then as noted above, service connection on a presumptive basis might be warranted. The record does not, however, document a diagnosis of either disorder within the one-year post-service presumptive period. The veteran has opined that he developed these disorders as a result of a head injury sustained during service. However, as is noted above, there is no evidence that such an injury occurred. Finally, it is apparent from the record that the veteran is not trained in the field of medicine but rather, is a lay person. As such, he is not competent to offer a diagnosis or explain the medical causes and etiology of his current disabilities. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, a preponderance of the evidence being against the claims, entitlement to service connection for a seizure disorder and schizophrenia is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claims of entitlement to service connection for a seizure disorder and schizophrenia are denied. DEREK R. BROWN Member, Board of Veterans' Appeals