Citation Nr: 0521010 Decision Date: 08/03/05 Archive Date: 08/17/05 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 HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. N. Hyland, 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 further action. Subsequently, in November 2003 and September 2004, the Board remanded the matter. The veteran testified at an RO hearing in April 2000 and at a Board videoconference hearing in June 2001 FINDINGS OF FACT 1. A seizure disability was not noted upon entry into service. 2. Clear and unmistakable evidence shows the veteran's seizure disability preexisted service. 3. Clear and unmistakable evidence shows no increase in the severity of the veteran's seizure disability during his period of active duty service. CONCLUSIONS OF LAW 1. The presumption of soundness is rebutted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2002). 2. The veteran's preexisting seizure disability was not aggravated during active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the RO furnished VCAA notice to the veteran subsequent to the initial denial of the veteran's claim. Because the VCAA notice in this case was not provided to the appellant prior to the initial adverse RO decision, it can be argued that the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that notice error of this kind may be non-prejudicial to a claimant. In this respect, all the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). VA has fulfilled its duty to notify the appellant in this case. In the March 2004 and January 2005 letters, VA informed the appellant of the applicable laws and regulations, including applicable provisions of the VCAA, the evidence needed to substantiate the claim, and which party was responsible for obtaining the evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the letters, VA informed the appellant that it would obtain the available records in the custody of federal departments and agencies and request medical records from identified private health care providers. The March 2004 letter also advised the appellant to submit any relevant evidence in his possession. The Board finds that these documents, when taken together, fulfilled VA's duty to notify, including the duty to notify the veteran to submit any pertinent evidence in his possession, and that any defect in the timing of such notice constitutes harmless error. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made numerous attempts to assist the appellant in obtaining the evidence necessary to substantiate his claim, including obtaining medical records identified by the appellant. The record includes service medical records, private medical records and VA medical records. The appellant has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. As such, there has been substantial compliance with the assistance provisions set forth in the new law and regulation. As the veteran has been afforded several VA examinations, the Board finds that the record as it stands contains adequate medical evidence to adjudicate the claim. Thus, the requirements of 38 C.F.R. § 3.159(c)(4) have been met. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim under consideration and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The issues are now ready to be considered on the merits. Analysis 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 or disease 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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. 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). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 Until recently, the provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence show that an injury or disease existed prior to service in order to rebut the presumption of soundness; however, during the course of this appeal, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, No. 02-7347 (Fed. Cir. June 1, 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service, and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong (clear and unmistakable evidence that the disorder was not aggravated by service) of this rebuttal standard attaches. VAOPGCPREC 3-2003. The presumption of soundness at entry into service attaches only where there has been an induction examination in which the claimed disability was not detected. In the case at hand, 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 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 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 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 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 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. 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. Regulations 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. Additionally, the May 2005 VA examination report notes that the examiner reviewed the veteran's c-file and stated that the veteran had a diagnosis of epilepsy prior to joining the military. 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. In fact, the veteran provided a history for his January 2005 VA examination in which he claimed that his seizure occurred in 1944 while in the military after an injury to the head. The record also includes several statements from fellow servicemen, some of which include comments regarding their knowledge of such an injury. 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 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. The veteran appears to also be making the argument that while he suffered fainting spells prior to service, no seizure disorder was diagnosed prior to service. An October 2003 letter from Dr. William Jones, M.D. states that the veteran did not have a diagnosis of seizures prior to active duty service. A May 2001 letter from Dr. Craig Bash, M.D. asserts the same basic contention - that there is no evidence of a medical diagnosis of epilepsy prior to active duty 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. The Board notes that the May 2001 letter from Dr. Bash 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. As 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 determined that a seizure disability preexisted active duty service, the Board must now move to the second prong of the presumption of soundness test regarding whether or not the evidence shows the veteran's pre-existing disability was clearly and unmistakably not aggravated during active duty service 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, particularly the January 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. 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. 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 consistent 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. The Board notes that the examiner from the January 2005 VA examination stated that even if the veteran did in fact suffer the head injury he described, such injury was not a "reasonable explanation" for a seizure. Finally, the Board notes that the May 2005 VA examination report notes the veteran's in-service history of seizures and states that there was no increase in severity of the veteran's seizure disability during active duty 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 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 is 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. Finally, the May 2005 VA examiner, after thoroughly reviewing the veteran's c-file and medical records determined that the veteran's seizure disorder did not increase in severity during active duty service. The Board believes that the totality of the evidence reaches the high level of clear and unmistakable evidence that the seizure disorder preexisted service and that it did not increase in severity during service. To summarize, the Board finds that there is clear and unmistakable evidence that a seizure disorder preexisted the veteran's military service. Further, there is clear and unmistakable evidence that there was no increase in the severity of the underlying seizure disorder during service, including as to the claimed head injury during service. As such, entitlement to service connection for a seizure disorder is not warranted. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs