Citation Nr: 0127436 Decision Date: 12/18/01 Archive Date: 12/28/01 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 disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from January 1943 to June 1944. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 1999 rating decision by the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for epilepsy, grand mal idiopathic. A notice of disagreement was received in August 1999, a statement of the case was issued in October 1999, and a substantive appeal was received in February 2000. The veteran testified at an RO hearing in April 2000, and a Board videoconference hearing was conducted in June 2001. Following the June 2001 Board hearing, the veteran submitted additional evidence along with a written waiver of preliminary RO review. See 38 C.F.R. § 20.1304(c) (2001). FINDINGS OF FACT 1. By rating decision in June 1944, a claim by the veteran for entitlement to service connection for epilepsy was denied; a notice of disagreement was not received to initiate an appeal from that determination. 2. Certain items of evidence received since the June 1944 rating decision are so significant that they must be considered in order to fairly decide the merits of the veteran's claim of entitlement to service connection for a seizure disorder. 3. Although a preservice history of epilepsy was not noted at the time of the veteran's entrance examination in January 1943, clear and unmistakable (obvious or manifest) evidence demonstrates that epilepsy existed prior to his entry into service. 4. The seizures during the veteran's service represented temporary flare-ups of the preexisting epilepsy, and there was no increase in severity of the preexisting epilepsy during the veteran's military service. CONCLUSIONS OF LAW 1. The June 1944 rating decision denying entitlement to service connection for epilepsy is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. Evidence received since the June 1944 rating decision is new and material, and the veteran's claim of entitlement to service connection for epilepsy has been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (2001). 3. A seizure disorder was not incurred in or aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.306 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000. Initially, the Board notes that, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001). This newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). After reviewing the claims folder, the Board finds that there has been substantial compliance with the assistance provisions of the new legislation. The record includes available service medical records, a VA examination report as well as private treatment records, a private medical opinion, lay statements, statements from fellow service-members and statements and sworn testimony from the veteran. The Board notes from the record that efforts have been made by the RO to obtain certain identified items of evidence, but some records are no longer available. At any rate, at the June 2001 Board hearing, the veteran indicated that other than evidence he would be submitting after the hearing (which was received and is now of record), he was aware of no other available evidence. Furthermore, the veteran and his representative have been notified of the applicable laws and regulations which set forth the criteria for entitlement to service connection for a seizure disorder. The discussions in the rating decision, statement of the case, and supplemental statement of the case have informed the veteran and his representative of the information and evidence necessary to warrant entitlement to the benefit sought. The Board therefore finds that the notice requirements of the new law have been met. Under the circumstances of this case, where there has been substantial compliance with the Veterans Claims Assistance Act of 2000 and implementing regulations, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). II. New and Material Evidence Analysis. Review of the record reveals a June 1944 claim by the veteran for service connection for epilepsy. By rating decision that same month, the veteran's claim of entitlement to service connection for epilepsy was denied on the basis that the disorder preexisted service and was not aggravated by service. In a June 1944 letter, the veteran was notified that his claim of service connection for a "nervous condition" was denied. He was also informed of appellate rights and procedures. However, a notice of disagreement was not received to initiate an appeal from the June 1944 rating decision, and that rating decision became final. 38 U.S.C.A. § 7105(c). In making this finding, the Board notes the June 1944 notification letter's reference to "nervous condition" rather than epilepsy. However, the Board takes administrative notice of the fact that epilepsies are listed under neurological conditions and convulsive disorders under VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4, § 4.124a. Moreover, the veteran filed a claim for only one disorder in June 1944. Although he described the disorder as epilepsy and the June 1944 notice letter referred to a "nervous condition," the Board finds that the June 1944 letter was sufficient to notify the veteran of the denial of his epilepsy claim despite the different descriptive language used in the June 1944 letter. Although the June 1944 rating decision became final, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. Another claim received from the veteran in September 1998 was viewed by the RO as a request to reopen the epilepsy claim. Although not clearly articulated by the RO in the July 1999 rating decision from which the present appeal arises, it appears that the RO found new and material evidence to reopen the claim, but then proceeded to deny the claim on the merits. Although the RO may have determined that new and material evidence was received to reopen the claim, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, No. 01-7007 (Fed. Cir. Sept. 19, 2001). New and material evidence is defined by regulation as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, the "benefit of the doubt doctrine" does not apply to the preliminary question as to whether new and material evidence has been received to reopen a claim. Martinez v. Brown, 6 Vet.App. 462 (1994). After reviewing the record the Board agrees with the RO's finding that new and material evidence has been received. Evidence received since the June 1944 rating decision includes various lay statements attesting to the events surrounding a seizure during service as well as sworn testimony offered by the veteran at both an RO and a Board hearing. The newly received evidence also includes medical records documenting the veteran's seizure disorder over the years as well as medical opinions addressing the time of onset of the epilepsy as well as a possible relationship to a head injury during service. These items of evidence are new and material to the underlying service connection question. The veteran's claim has therefore been reopened. Given the fact that the RO reopened the claim and proceeded to address the claim on the merits, there is no prejudice to the veteran by the Board's doing so at this time. See generally Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran has been furnished notice of the laws and regulations pertaining to service connection and has had an opportunity to offer argument in response to the RO's denial on the merits. III. Service Connection Merits Analysis. The underlying issue before the Board involves a claim of entitlement to service connection. 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 active military 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 condition 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). Certain chronic disabilities, such as epilepsies, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Further, for purposes of this case it should be noted that a veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service, or where clear and unmistakable evidence (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting disease or injury will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Moreover, temporary flare-ups during service of the symptoms of a disability, without overall worsening of the condition itself, do not constitute aggravation of the disability. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Initially, the Board notes that a history or finding of epilepsy or any other relevant disability was not noted upon the veteran's enlistment examination dated in December 1942. The induction examination report includes a notation that the veteran did not claim "epilepsy, enuresis, asthma, or treatment for syphilis." Physical examination revealed no disorders of the nervous system. Since epilepsy was not noted on entrance examination, the Board finds that the veteran is therefore entitled to the presumption of soundness. The question now becomes whether there is "clear and unmistakable (obvious or manifest) evidence" demonstrating that the disability existed prior to service, thus overcoming the statutory presumption of soundness. 38 C.F.R. § 3.304(b); see also Junstrom v. Brown, 6 Vet. App. 264, 266 (1994). The record includes copies of morning reports which appear to document medical treatment in March 1944. Service medical 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 age of 13 years, about once a year. Under a section for reporting injuries it was expressly noted that there was no history of head injury. Service medical 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 these attacks are preceded by no warning. 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. After reviewing the above-summarized service medical records, the Board believes it significant that the history of preservice periods of unconsciousness and convulsions was apparently furnished by the veteran during the course of receiving medical treatment over a year after entering service. Under such circumstances, the history furnished by the veteran is deemed by the Board to be highly credible. The Board also believes it significant that the history provided by the veteran included great detail, not just referencing the preservice periods of unconsciousness and convulsions, but also setting out the particulars of such attacks including the veteran's actions during the seizures and his behavior after the seizures. This further persuades the Board that the veteran's rendition of this history should be viewed as highly credible. Moreover, such history provided during the course of treatment more than a year after entry into service is to be distinguished from history of a preservice disease or disorder provided by a veteran at the time of entrance examination. Regulation specifically provide that history of preservice existence of conditions recorded at the time of entrance examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). However, the United States Court of Appeals for Veterans Claims has held that, as a matter of law, the presumption of soundness is rebutted by clear and unmistakable evidence consisting of a veteran's own admission of a preservice history of medical problems during inservice clinical examinations. Doran v. Brown, 6 Vet.App. 283, 286 (1994). Moreover, while some post-service medical records include history by the veteran that his seizure disorder began during service, the claims file includes a November 1992 record from John M. Kilian, M.D. documenting a neurological examination at which time the veteran related a history of a seizure disorder since the age of 15. Further, the report of a VA examination in January 1999 is to the effect that the veteran was very frank and forthcoming about the fact that he had two episodes prior to service. One of the main arguments advanced by the veteran is that his seizure disorder was first manifested as a result of a head injury when he fell off a truck inservice. The record does include several statements from fellow servicemen, some of which include comments regarding their knowledge of such an injury. 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 in fell off a truck in England in March of 1944 and suffered a seizure a short time later. However, Dr. Falk also indicated that he did not have any medical records and that his memory of the event was a bit hazy. Significantly, Dr. Falk did not say that he witnessed the head injury, only that he had treated him for a seizure. The Board also notes here that the service medical records dated in June 1944 include a specific notation that there was no history of a head injury. At any rate, assuming for the sake of argument that there was a head injury in early 1944, that fact alone is not relevant to the question of whether the veteran suffered seizures prior to service. Another argument which the veteran appears to be making is that while he suffered fainting spells prior to service, no seizure disorder was diagnosed prior to service. Certain lay statements of record appear to support the veteran's assertion that he had fainting spells prior to service (although others reflect no memory of any fainting spells), and it is true that the record does not include evidence of a medical diagnosis of a seizure disorder prior to service. However, the Board does not view the determinative question to be whether a certain disorder was actually medically diagnosed prior to service, but rather whether there is clear and unmistakable evidence that the disorder preexisted service. As noted above, the Board believes that the history of preservice symptoms furnished to military medical personnel in 1944 must be viewed as highly credible. Based on that history, trained military medical personal, after considering such history and observing the veteran, determined in their medical judgment that the veteran suffered from epilepsy and that the epilepsy preexisted his entry into service. After reviewing the entire record, the Board is compelled to find that the June 1944 opinion by a Board of Medical Officers, based on the highly credible history furnished by the veteran to treating military medical personnel in 1944, constitutes clear and unmistakable evidence of preservice existence of a seizure disorder so as to rebut the presumption of soundness. The Board notes here that in a May 2001 letter, Craig N. Bash, M.D. attempts to discount the preservice history related by the veteran to military medical personnel in 1944 on the basis that the veteran as a layperson is not competent to relay such history and that there is otherwise no medical evidence showing a preservice diagnosis of a seizure disorder. At noted earlier, the Board does not view the timing of the first medical diagnosis of epilepsy to be critical. The veteran furnished a detailed history of preservice periods of unconsciousness and convulsions. A layperson is competent to report factual occurrences based on first hand knowledge. The military medical personnel reached a medical conclusion based on this history, and the Board finds that the opinion of the military medical personnel that the epilepsy preexisted service is clearly and unmistakably supported by the totality of the evidence. Having found that a seizure disorder preexisted service, the next question to be addressed is whether this preexisting seizure disorder was aggravated by the veteran's military service. In this regard, the Board must look to the evidence to determine if there was an increase in severity during service. 38 C.F.R. § 3.306. As noted earlier, temporary flare-ups during service without an overall worsening of the condition do not constitute aggravation of the disability. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Further, in determining whether there was an increase in severity during service, the Board must look to all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The 1944 service medical records document history provided by the veteran that he suffered two preservice seizures and that they occurred about once a year. Service medical 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 increase in the frequency of the seizures during service. Moreover, the evidence available does 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, 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. After considering the available evidence pertaining to the nature and severity of the seizure disorder prior to service, during service, and after service, the Board finds that the seizures during service were essentially flare-ups of the preexisting seizure disorder and not indicative of any increase in the underlying seizure disorder. The preponderance of the evidence is against a finding of any increase in severity during service. It appears that the veteran suffered seizures once a year prior to service and the documented references to two seizures during his approximately 17 months of service is not inconsistent with the reported preservice frequency. There is no evidence showing any increase in either the frequency of seizures or the severity of the attacks during service. The fact that post-service seizures occurred in 1947 and 1948 adds further argument to a finding that nothing during the veteran's service increased the frequency of the seizures. Various medical records reference off-and-on Dilantin treatment over the years, and it appears that the 1965 seizure took place after the veteran stopped taking the medication. The Board acknowledges the May 2001 opinion letter from Dr. Bash. It is clear that Dr. Bash reviewed the veteran's medical records in rendering his opinion. However, the basic premise offered by Dr. Bash is that a seizure disorder did not preexist service but was instead brought on by a head injury during service. As to these assertions, for reasons set forth earlier, the Board has found that there is clear and unmistakable evidence that a seizure disorder preexisted service. With regard to the claimed head injury, service medical records do not document such an injury and it is worthy of note that the June 1944 service medical records are to the effect that there was no history of a head injury, although these contemporaneous records (documenting treatment for a seizure which the veteran now claims was brought on by a head injury) would be exactly the place where one would expect the claimed head injury to have been noted. At any rate, even assuming that the veteran did in fact suffer a head injury a few hours before he had a seizure and assuming that seizures can be brought on by a head injury, it does not necessarily follow that there was any increase in the severity of the preexisting seizure disorder as a result of the claimed head injury. It may have been entirely coincidental that a seizure occurred shortly after a head injury or, even if the head injury did bring on the particular seizure in 1944, this fact alone would not dictate a finding that there was an increase in the underlying severity of the preexisting condition during service. Given the clear evidence of no resulting increase in frequency or severity of the preexisting disorder after the time of the claimed head injury, such an event would, in the Board's view, essentially represent a temporary flare-up of the preexisting condition. The Board notes here that there is also no evidence of any separate disability resulting from the claimed head injury. The questions addressed in this case are in large part medical in nature. As such, they must be addressed by medical professionals as neither the veteran nor the Board are competent to render medical opinions. See generally Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The Board again acknowledges the May 2001 letter from Dr. Bash in which he cites certain evidence in detail and offers opinions regarding the etiology of the veteran's seizure disorder. However, the Board finds that the medical opinions offered by the three medically trained individuals who comprised the June 1944 Board of Medical Officers are more persuasive. The Board of Medical Officers had the opportunity not only to review preservice history provided by the veteran himself during the course of treatment, but also to examine and observe him for a number of days. As discussed earlier, the Board believes the history furnished by the veteran at that time to be highly credible. While the veteran as a layperson was not competent to assert that he suffered from epilepsy prior to service, he was competent to report the particulars of the preservice periods of unconsciousness and convulsions. Trained military medical personnel were then able to conclude that he suffered from epilepsy and that the epilepsy preexisted service. Such matters of diagnosis and etiology were clearly within the realm of the military medical personnel. Likewise, the Board believes that considerable weight should be given to the opinion of the Board of Medical Officers that the preexisting epilepsy was not aggravated during service. Again, they had the first hand opportunity to examine and observe the veteran during the pertinent time period. Moreover, a review of preservice records, service records, and post-service records reveals no persuasive evidence of any increase in the severity of the seizure disorder. To summarize, the Board finds that there is clear and unmistakable evidence that a seizure disorder preexisted the veteran's military service. Further, the clear preponderance of the evidence is against a finding that there was an increase in the severity of the underlying seizure disorder during service, including as to the claimed head injury during service. The preponderance of the evidence is also against a finding that any separate chronic disability resulted from the claimed head injury during service. ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals