Citation Nr: 0911928 Decision Date: 03/31/09 Archive Date: 04/08/09 DOCKET NO. 00-02 066A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a seizure disability. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION The appellant in this case is a Veteran who had active duty service from January 1943 to June 1944. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 1999 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In a December 2001 decision, the Board reopened the Veteran's claim of service connection for a seizure disorder and then denied the claim on the merits. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter, 'the Court'). In a December 2002 Order, the Court vacated the Board's December 2001 decision and remanded the case to the Board for compliance with the instructions included in the December 2002 Joint Remand. Subsequently, in November 2003 and September 2004, the Board remanded the matter. In August 2005, the Board again denied the issue on appeal. The Veteran appealed the Board's August 2005 denial of service connection for seizure disorder to the Court. By Order dated July 26, 2006, the Court vacated the Board's August 2005 denial of service connection for seizure disorder and remanded this matter to the Board for compliance with the instructions included in the July 2006 Joint Remand. In December 2006, the Board remanded the case for additional development of the evidence. The Board has since solicited an independent medical expert (IME) opinion to complete development of the evidence to decide this case; the resulting February 2009 IME opinion addressing key questions in this appeal is now of record and has been considered in this decision. The Veteran testified at an RO hearing in April 2000 and at a Board videoconference hearing in June 2001. FINDINGS OF FACT 1. The Veteran's chronic seizure disorder was not noted upon his entrance to military service. 2. The Veteran manifested a seizure disorder during service. 3. The evidence does not clearly and unmistakably demonstrate that the Veteran's seizure disorder did not increase in severity during service. CONCLUSIONS OF LAW 1. The presumption of soundness applies, and is not rebutted, regarding a seizure disorder. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2008). 2. A seizure disorder was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304(b) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). In light of the favorable decision as it relates to the issue of entitlement to service connection for a seizure disorder, no further discussion of VCAA is necessary at this point. Analysis This appeal involves a claim of service connection for a seizure disorder. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic disability during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service- connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Wagner, 370 F.3d at 1096. Effective May 4, 2005, VA amended its regulations at 38 C.F.R. § 3.304(b) to reflect a change in the interpretation of the statute governing the presumption of sound condition. The final rule conforms to Federal Circuit precedent Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), and applies to claims, which were pending on or filed after May 4, 2005. As the Veteran's case was pending as of that date, the amendment applies. In the case at hand, the Board notes that a history or finding of epilepsy was not noted upon the Veteran's enlistment examination dated in December 1942; nor was there any notation otherwise regarding any seizure disorder or other relevant disability. The induction examination report includes a notation that the Veteran did not claim "epilepsy" among other disorders. Physical examination revealed no disorders of the nervous system. Since epilepsy was not noted on the entrance examination, the Veteran is entitled to the statutory presumption of soundness. The next question to be considered, therefore, is whether there is clear and unmistakable evidence to rebut the presumption. The record includes copies of morning reports which appear to document medical treatment in March 1944. Service treatment records further reveal that the Veteran was admitted to a military medical facility in May 1944. The chief complaint was reported as intermittent rare convulsions since 13 years of age, about once a year. Under a section for reporting injuries, it was expressly noted that there was no history of head injury. Service treatment records further detail the Veteran's history as 'attacks of unconsciousness with convulsions since age of 13 years occurring about once a year.' It was noted that no warning preceded these attacks. It was reported that the Veteran would fall to the ground, have tonic and clonic convulsions for about a minute and that this was followed by 20-30 minutes of stupor and then the Veteran falls in to a deep sleep for several hours. It was reported that the Veteran had had two attacks since entering the service with the second occurring March 13, 1944, when he was seen by a Captain Falk, his medical officer. During the course of the military hospitalization, physical examination was essentially negative as was an electroencephalogram. The reported diagnosis was epilepsy, grand mal, idiopathic. A Board of Medical Officers reviewed the Veteran's medical records and determined that the Veteran was unfit for service because of epilepsy, idiopathic, grand mal type. The Board of Medical Officers further concluded that the disqualifying disability was not incurred in service but existed prior to induction and was not aggravated by service. The June 1944 Report of Board of Medical Officers noted that the Veteran had been under observation by one or more members of the Board of Medical Officers for 19 days. Even assuming that the evidence may clearly and unmistakably show that the Veteran had a seizure disorder pre-existing service, the decisive aspect of this case is the conflicting nature of the significant evidence concerning whether any such pre-existing seizure disorder was permanently aggravated during service beyond the natural progress of the pathology. The presumption of soundness is not rebutted merely by the showing that the injury preexisted service. As set forth in VAOPGCPREC 3-2003, the law does in fact require that there must also be clear and unmistakable evidence that the disability was not aggravated during service in order to rebut the presumption of soundness. In this case, the evidence addressing this question is critically mixed and contradictory, and thus the evidence does not clearly and unmistakably show that such a seizure disorder was not permanently aggravated during service. One of the main arguments advanced by the Veteran is that the severity of his seizure disorder is significantly related to a head injury allegedly suffered when he fell off of a truck in-service. The Veteran provided a history for his January 2005 VA examination in which he described that the 1944 in- service seizure occurred after an injury to the head. The Board observes that pertinent service treatment records dated in June 1944 include a specific notation that there was no history of a head injury. However, the record also includes several statements from fellow servicemen, some of which include comments regarding their knowledge of such an injury from recollections contemporaneous to the period in question. Additionally, there is also a statement from Henry Falk, M.D., dated in December 1998, in which he indicated that the Veteran had relayed to him that he was treated by him when he fell off a truck in England in March of 1944 and suffered a seizure a short time later. Dr. Falk indicated that he did not have any medical records and that his memory of the event was a bit hazy; yet the Board does note that the service treatment records appear to confirm that Dr. Falk treated the Veteran at the time in question, and the Board observes that Dr. Falk does not make any statement contradicting the Veteran's account of head injury. In this regard, Dr. Falk's statements reflects pertinent witness testimony that does not clearly and unmistakably contradict the Veteran's account of in-service head injury. There are conflicting indications with regard to whether the Veteran suffered a significant head injury during service. While the contemporaneous evidence from the service treatment records does not appear to be consistent with the Veteran's account, when viewed in light of the Veteran's testimony and other submitted evidence, there is some reasonably probative suggestion that a head injury took place in service. The Board finds that the aggregated evidence does not 'clearly and unmistakably' demonstrate that the Veteran's documented in-service seizure was not preceded by a head injury. The Veteran's testimony, the reasonably consistent witness statements submitted, and the fact that the doctor who treated the Veteran for the seizure at the time in question did not contradict the Veteran's account regarding a head injury, have all been given careful consideration by the Board. Although the evidence is not in the Veteran's favor or in a state of equipoise, the Board's analysis under the higher clear and unmistakable evidence standard. The Board is unable to conclude that there is 'clear and unmistakable' evidence to show that the alleged head injury did not occur, and there is at least some reasonable supporting evidence to suggest the occurrence of a head injury. Thus, accepting for the purposes of this analysis that the Veteran suffered the alleged head injury during service, the Board finds that the broader evidence does not clearly and unmistakably show that such head injury did not permanently aggravate a pre-existing seizure disorder. The Board finds that the conflicting probative evidence provides sufficiently plausible support of the possibility of in-service aggravation. The 1944 service treatment records document history provided by the Veteran that he suffered two preservice seizures and that they occurred about once a year. Service treatment records refer to two seizures during service. It appears that the time of the first was not documented. The second appears to have occurred in March 1944. Based on this evidence, it does not appear that there was any clear increase in the frequency of the seizures during service. The service treatment records also do not suggest any increase in the underlying severity of the disorder during service. It appears that the nature of the seizures were the same during service as reported to have occurred prior to service. Looking to post-service evidence, particularly the January 2005 VA examination report, it appears that the Veteran reportedly suffered additional seizures in 1947, 1948, and 1965. Medical evidence suggests that he has been on Dilantin since 1965 and has been seizure free since then. Nevertheless, post-service medical opinions present competent medical evidence indicating that it is not 'clearly and unmistakably' apparent that the severity of the seizure disorder was not aggravated during service. A January 2005 VA examination report finds that the Veteran's seizures were "less than 50/50 probability due to his head injury." This does not constitute 'clear and unmistakable evidence' that his seizure disorder was not aggravated by an in-service head injury. A May 2005 VA examination report states that "there are no exacerbating factors in the military" because "he has had a substantial decrease in his epilepsy" since service. However, based upon consideration of the same factual history, an October 2003 medical statement from a Dr. Jones opines that "it seems quite reasonable to directly link the seizure activity of the veteran to his head injury during the service" and "the head injury during the service could very well have exacerbated his epilepsy (condition of seizure activity) in severity and frequency." Additionally, a May 2001 private medical statement from a Dr. Bash opined that "the patient's inservice head injury is the initial event that caused his persistent seizure disorder." Although some of the evidence makes different assumptions regarding the original onset of the Veteran's seizure disorder, the competent probative evidence does present a reasonably plausible link between an increase in the severity of the Veteran's seizure disorder and an in-service head injury. The Board notes that the general absence of seizures following the Veteran's service appears to have been attributed to a successful plan of treatment involving effective medication (the Veteran has testified that his single post-service seizure occurred when he was not taking his medication); it appears plausible, then, that the general absence of seizures following service is not a clear and unmistakable demonstration that the underlying seizure disorder was not aggravated. The Board solicited an Independent Medical Opinion to clarify and develop evidence addressing this claim, and the February 2009 response to this request has been carefully considered. In pertinent regard, the February 2009 Independent Medical Examiner opined, after reviewing the evidence in the claims file, that "a head injury could possibly exacerbate or cause seizures although there is no conclusive proof that it did in this case." In light of this conclusion, which is consistent with the broader discussion presented in the February 2009 opinion, the Board finds that this evidence shows no 'clear and unmistakable' demonstration that a pre- existing seizure disorder was not aggravated during service. Although the evidence does not clearly show that the Veteran's seizure disorder was aggravated during service, the Board is of the opinion that there is no 'clear and unmistakable' evidence that the seizure disorder was not aggravated during service. While the evidence may not thoroughly demonstrate in-service aggravation of the seizure disorder, the Board is satisfied that the evidence does not provide a 'clear and unmistakable' showing that the Veteran's preexisting seizure disorder was not permanently worsened by service. Thus, the presumption of sound condition on entering service has not been successfully rebutted. The seizure disorder diagnosed during service must therefore be viewed as having been incurred during service. ORDER Service connection for a seizure disability is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs