Citation Nr: 0835411 Decision Date: 10/15/08 Archive Date: 10/27/08 DOCKET NO. 02-02 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for head injury residuals, to include a seizure disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from January 1980 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. That decision found that new and material evidence had not been submitted to reopen a claim for service connection for head injury residuals, including a seizure disorder. In August 2003, the Board reopened the claim for service connection, and in August 2003 and in May 2007 remanded the claim to the RO for additional development. In April 2002, the appellant testified during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Evidence of record demonstrates that head injury residuals, to include a seizure disorder, were not manifest during active service and were not a result of any established event, injury, or disease during active service. CONCLUSION OF LAW Head injury residuals, to include a seizure disorder, were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the appellant in letters from the RO dated in November 2002, May 2004, August 2006, October 2007, March 2008, and June 2008. These letters notified the appellant of VA's responsibilities in obtaining information to assist the appellant in completing his claim, and identified the appellant's duties in obtaining information and evidence to substantiate his claim. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in August 2008. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in August 2006. The Board notes that the development it requested in its May 2007 remand, information concerning a 1977 motor vehicle accident and the appellant's consent to a period of observation and evaluation for inpatient video EEG monitoring to confirm the presence of a seizure disorder-was not accomplished because the appellant did not respond positively to the RO's letters of March and June 2008 and an August 2008 telephone contact. In addition, the Board notes that R.J.H., M.D., did not respond to the RO's letter of September 2004 requesting a rationale for his November 2002 nexus opinion. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). He must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). 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 relevant evidence. The Board finds that further attempts to obtain additional evidence in this matter would be futile. Therefore, the claim must be decided based upon the available medical evidence. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with the claim would not cause any prejudice to the appellant. Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and a chronic disease of the nervous system, becomes manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Factual Background and Analysis The appellant contends that he sustained a head injury at Fort Collins, Colorado, in 1980 while on maneuvers and, as a result, developed a seizure disorder which, he claims he did not have before he entered service. The veteran's January 1980 enlistment examination is silent as to any abnormalities. In the Report of Medical History taken in conjunction with his enlistment physical examination, the veteran, who was almost 30 years old at the time of enlistment, responded "nono" to the question regarding his usual occupation. Regarding the question as to whether he had ever been rejected for military service, he responded, "I been military at 18. I am". This response was crossed out on the report. In a February 1, 1980 report, it was indicated that the veteran did not suffer from epilepsy, hepatitis, diabetes, alcoholism, leukemia, cancer, and other disorders. Because he had a positive tine test for tuberculosis, he was placed on INH. In June 1980, the veteran complained of peripheral neuritis in the right arm. He indicated that the neuritis started before he was placed on INH. A July 1980 service treatment record revealed that the veteran complained of neuritis in both lower extremities. He said that he lost feeling in both legs while driving a car. He had been on isoniazid (INH) since February 1980. The record also indicated that in June 1977 the veteran was involved in a motor vehicle accident and sustained an injury to the cervical spine. August 1980 service treatment records revealed that the veteran was seen for swelling in his right hand and that he had a history of numbness in his right hand. Four days later he "fell out" down range, where he was a cook, with a complaint of heat stroke. He reported that he felt weak, dizzy, and that his hands felt prickly; the veteran thought he may have fainted. Examination was normal, with possible heat stroke noted. No head injury or seizure disorder is noted in the available service treatment records. Service personnel records in the claims file revealed that the veteran was given an honorable discharge in March 1981 for erroneous enlistment, inability to read and write, unadaptability to training, and lack of motivation. It was indicated that the recruiter showed the veteran the ASVAB (Armed Services Vocational Aptitude Battery) questions and answers prior to his taking the test to determine his competence to enter the military. (The Board notes that the National Personnel Records Center informed the RO in March 2008 that there was no evidence in the veteran's personnel file to indicate he had attempted to enter service prior to 1980.) The veteran declined a separation physical examination. March 1992 VA hospital records noted that the veteran was in jail in late January 1992 for failure to pay child support when he suffered several seizures and felt a tingling in his extremities. He said that he hit the back of his head on the concrete floor. A grand mal seizure while in jail was noted and that he frequently had episodes of starring for a few seconds, stuttering speech, and weakness of the right arm and leg. The veteran's history of seizure disorder was said to date back to 1980 when he was struck in the head with an empty tank shell casing. The veteran reported that he "fell out" twice after that and was placed on Phenobarbital for approximately three years and then taken off the medicine and that he did not return to see his doctor after that. He continued to have minor seizure spells of starring and stuttering. A CT scan of the brain found no abnormalities. An EEG was within normal limits when the veteran was awake and drowsy. The veteran also was seen for psychological testing while in the VA hospital. He was discharged with a diagnosis of right hemi paresis believed to be malingering and a history of seizure disorder. A June 1992 statement from the veteran's mother in his Social Security Administration (SSA) file indicated that the veteran developed his stuttering about a year before. A June 1992 VA medical record noted the veteran reported a mild seizure the previous week. A December 1992 private medical record revealed that the veteran complained of a light seizure that day. A May 1993 decision by the SSA noted that the veteran's first major seizures, and his disability for purposes of the SSA, occurred in February 1992. The decision noted that the veteran said that he developed minor seizures in 1982. November 1994 VA medical records noted the veteran had a seizure the previous week and a diagnosis of seizure disorder. A December 1995 private medical record showed a normal CT scan of the brain. A November 1996 private medical record revealed the veteran's violent behavior as his girlfriend complained that he tore up the living room and the rescue squad reported that he tried to punch them. Alcohol was noted on his breath, and the impression was psychotic break. July 1997 private medical records noted another seizure while in jail and a diagnosis of alcoholism and possible seizure disorder. The veteran gave a history of a seizure disorder since 1986. An August 1998 private medical record noted that the veteran's seizures were often brought on when he got agitated. In a private medical record of R.C.C, M.D. dated in September 1998, the veteran's physician revealed that the veteran had requested a letter stating that his seizures might be related to when he was struck in the head during service. The doctor reviewed some records from the VA hospital and concluded that he could not state certainly beyond a shadow of a doubt and could not really say that the veteran's seizures might be related to his injury while in service. Dr. C, stated that he declined to write the nexus letter requested by the veteran. A September 1999 private medical record noted that the veteran reported a couple of light seizures the previous week. A March 2000 private medical record noted a seizure or stroke the previous month during a verbal altercation concerning a car in the veteran's yard. A CT scan of the brain was negative. A magnetic resonance imaging (MRI) scan of the brain showed the left mesial temporal lobe slightly diminished in volume compared with the opposite side, but there was no intra or extra axial mass, fluid collection, vascular anomalities or areas of abnormal enhancement. A September 2000 private medical record revealed that the veteran had two or three headaches a day. Dr. C. questioned whether Phenobarbital toxicity might have played into the frequency of headaches. The veteran underwent a VA examination in November 2000. He complained of two to three weekly episodes of blacking out associated with generalized convulsions. The veteran told the examiner that when he was in the military he had heat stroke which was later followed by seizures. On neurological examination, the veteran was noted as dullish in intellect, but his cranial nerves were normal. The examiner, who lacked access to the claims file, diagnosed seizure disorder, apparently stable. The examiner opined that the veteran was being under treated because he was only given a medication choice of Dilantin and Phenobarbital. Probable dementia of unknown cause also was diagnosed. Private medical records of R.J.H., M.D., dated in November and December 2000 reveal that the veteran underwent a right carotid endarteratomy in November 2000. He had a history of seizure disorder he dated back to 1979. Dr. H. noted that the veteran had intermittent trouble controlling his right foot and right arm weakness after seizures. His impression was that this was Todd's paralysis following seizure. A private December 2000 EEG reflected no clear seizure activity. During a hearing at the RO in April 2002, the veteran testified that he did not have seizures before he entered service. He said that he suffered a head injury while loading shields on a tank as cooks helped load tanks down range and that the next day he suffered what the records called a heat stroke. He said that after he was treated for heat stroke he was put on light duty at the night bakery and suffered a seizure one night. Then he was given duty at the orderly room desk before being processed for discharge. He testified that he suffered a number of seizures in service and once was taken by ambulance from the barracks to the hospital. He said that he did not know then that he was suffering from seizures, but that he was blacking out. He also testified that an examination revealed seizures in 1989, but that doctor was now deceased. (Transcript, at pp. 2-5). A brief November 2002 signed handwritten statement of Dr. H. stated that the veteran's seizure disorder was post-traumatic and related to a closed head injury from a military accident. A November 2003 VA medical record noted that the veteran suffered a seizure two weeks before and that he was taken to a local hospital and given Dilantin. A December 2003 VA medical record revealed that the veteran dated the onset of his seizures to 1981 when he was in the service when he fell and hit his head. The veteran reported that he was unconscious and remained in the hospital for one day. Shortly afterward he had a seizure and was discharged from the service. Post service, he was treated with Phenobarbital and Dilantin, but continued to have one or more seizures a week. The doctor prescribed Keppra as 10 years of Dilantin and Phenobarbital had not prevented seizures. A January 2004 private medical record from Chesterfield General Hospital revealed that the veteran was treated for a seizure, his first in about two to three months, which he apparently suffered at a local car wash. A January 2004 VA medical record revealed that the veteran said that he had suffered a seizure two days before while at a grocery store when he "blacked out". He reported that people told him that he was trying to swallow his tongue. He was taken by ambulance to a local hospital where he was treated. March 2004 VA medical records noted that the veteran had a long history of seizures dating back to 1981. A CT scan of his head was unremarkable and an EEG failed to show any seizure activity. It was noted that he was having fewer seizures and improving with Keppra. The veteran underwent a VA examination in June 2004. He told the examiner that he had multiple falling out spells in service and that he had a head injury in service when something hit him in the head and knocked him unconscious while his unit was unloading a tank. He said that he now had falling out spells at least once or twice a week. The examiner noted that a neurological consultation in service had been requested but never conducted because the veteran said that he was discharged before that was accomplished. On examination, it was noted that the veteran was alert, but stuttered, but otherwise had a normal mental status. The neurologist stated that the veteran had a diagnosis of seizure disorder, although there was no confirmatory evidence in the claims folder or by report of abnormal laboratory testing. The examiner recommended that the best approach for objective information was to have the veteran admitted for video and EEG clinical monitoring to determine whether the veteran had seizure or pseudoseizures. He further stated that otherwise the issue could not be resolved during the examination. The examiner offered no opinion as to the etiology of either the seizures or pseuodoseizures. A September 2004 VA medical record noted that the veteran reported five seizures over the weekend. Another September 2004 VA medical record noted that the veteran had suffered 10 seizures since he was started on Keppra, although their frequency was less frequent. A December 2004 VA medical record noted that the veteran continued to have seizures, although only three since September 2004. The doctor prescribed Gabapentin. A February 2005 VA medical record noted a long history of generalized tonic clonic seizures as well as low back pain. The doctor noted only one light seizure since she last saw the veteran in December 2004. The veteran underwent another VA examination in October 2006 for a clarifying diagnosis. The examiner noted that brain scans and EEGs in the file were reportedly normal and that the 1992 discharge from a VA hospital indicated a diagnosis of hysterical paralysis, but that he was also treated with anti-epileptic medications. The veteran complained of at least three seizures a month. Following a review of the claims folder and physical evaluation, the neurologist considered the question of pseudoseizures vs. seizures, and indicated that the inpatient video EEG monitoring may or may not serve to confirm seizures vs. pseudoseizures. In addition, he stated that it was not possible to confirm the diagnosis of epilepsy vs. pseuodseizures, or a combination thereof, based on the currently available objective evidence. (To date, no inpatient video and EEG monitoring study has been performed.) A July 2007 VA medical record indicated that the veteran's seizure disorder was stable and that he was taking Dilantin. An August 2007 VA medical record noted that the veteran's seizures overall seemed to be better and that emotional stress seemed to trigger his blackouts. Mental health treatment was noted as helpful. Based upon the evidence of record, the Board finds that head injury residuals, including a seizure disorder, were not manifest during active service and did not develop as a result of an established event, injury, or disease during active service. As noted above, the appellant has been diagnosed with a seizure disorder on several occasions, but VA examiners in June 2004 and October 2006 were not able to confirm a current disability as the veteran had not made himself available for a period of observation and evaluation, to include inpatient video EEG monitoring to confirm the presence of a seizure disorder vs. pseudoseizures. However, even assuming that the appellant has a current epilepsy disability (which has never been confirmed) and is not suffering from pseudoseizures, there is no competent medical evidence indicating that this disorder is associated with any established event, injury, or disease during active service. Service treatment records referred to the veteran fainting in August 1980 and his neurological complaints of record concerned numbness and tingling in his extremities. The only evidence of a head injury in service is the veteran's testimony and what he later related to medical professionals who repeated that history in their records. While the veteran can attest to factual matters of which he had first- hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005), and while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). There is no competent medical evidence in the record of a seizure disorder until 1992, or 11 years after the appellant's discharge from service. Further, the veteran conceded during his RO hearing that no one referred to his fainting spells in service as seizures and he testified that he was first diagnosed post-service in 1989 by a doctor who is now deceased. In order to prevail on the issue of service connection on the merits, there must be medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson, 12 Vet. App. at 253. As noted above, there is no medical evidence in the record suggesting a connection between the veteran's service and any current seizure disorder, except for the private November 2002 statement of Dr. R.J.H. His handwritten note on a medical prescription form stated that the veteran's seizure disorder was related to a closed head injury from a military accident. But there is no medical evidence of such an accident in the service treatment records. Moreover, it has been held that "a bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record." Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). As noted above, Dr. H. did not respond to an invitation to share his rationale with VA. Thus, since Dr. H.'s opinion was based on no more than the veteran's self-reported history and is not supported by a review of the veteran's claims file, his findings are not considered probative and have been afforded little weight by the Board in its analysis. The Board notes that another private physician, Dr. C., expressly declined the appellant's September 1998 invitation to furnish a nexus opinion. Dr. C. reviewed VA hospital records and concluded he could not state with certainty that the veteran's seizures might be related to some injury in service. None of the three VA examiners of record offered an opinion as to etiology. There is no competent medical evidence that the Board can rely on in this matter to show a connection between the appellant's post-service seizures and his period of active service. Therefore, the Board finds entitlement to service connection for head injury residuals, including a seizure disorder, is not warranted. The Board has considered whether service connection for head injury residuals, including a seizure disorder, could be established on a presumptive basis. To establish service connection for a disability on a presumptive basis, the disability must manifest itself to a compensable degree within one year of the veteran leaving active duty. See 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, no competent medical evidence demonstrates that the appellant experienced a seizure disorder to a compensable level within a year after his discharge from active duty. As noted above, though the appellant told the SSA that he first suffered minor seizures in 1982 there is no medical evidence to show any seizures until 1992. Therefore, service connection for head injury residuals, including a seizure disorder, cannot be established on a presumptive basis. While the appellant believes his seizure disorder was incurred as a result of service, he is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. 492. There simply is no probative, competent medical evidence in support of this claim. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert, 1 Vet. App. at 55; Ortiz, 274 F. 3d 1361. The preponderance of the evidence is against the appellant's claim for service connection for head injury residuals, including a seizure disorder. ORDER Entitlement to service connection for head injury residuals, including a seizure disorder, is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs