Citation Nr: 0810845 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-34 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran had active service from August 1978 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision of the Columbia, South Carolina regional office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for a seizure disorder. In a February 2006 rating decision, the RO denied entitlement to service connection for PTSD. A notice of disagreement (NOD) has not been received. In March 2008, the veteran's representative submitted argument on the issue of entitlement to service connection for PTSD to the Board. Inasmuch as this argument was not submitted to the RO it does not constitute a NOD, aside from the fact that it was submitted more than one year after the decision at issue. 38 U.S.C.A. § 7105(b)(1) (West 2002) (requiring that NODs be filed with the activity entering the determination). This issue has not been certified to the Board and absent a NOD, the Board does not have jurisdiction over it. 38 U.S.C.A. § 7105(a) (West 2002) (appellate review is initiated by a NOD). A June 2006 letter notified the veteran of a hearing scheduled before a Veterans Law Judge in July 2006. The veteran failed to report for that hearing. The hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d) (2007). FINDING OF FACT The veteran's current seizure disorder is not due to a disease or injury in active service. CONCLUSION OF LAW The veteran's current seizure disorder was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court)has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in July 2004 the RO notified the veteran of the evidence needed to substantiate his claim for service connection. The letter satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element, the July 2004 VCAA letter contained a notation that the veteran should send VA any information that pertained to his claim. This statement served to advise the veteran to submit any evidence in his possession pertinent to the claims on appeal. The veteran has substantiated his status as a veteran and the second and third elements of Dingess notice are satisfied by the July 2004 letter. However, the veteran did not receive notice about the evidence needed to establish a rating or notice regarding an effective date until a June 2006 letter. Since the claim is being denied, no rating is being given and no effective date is being set. He is not prejudiced by the deferred notice on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Thus, all required notice was given. The duty to assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records and VA medical records. To date, VA has not afforded the veteran a VA examination, or obtained a medical opinion regarding his seizure disability. Such an opinion is "necessary" under 38 U.S.C.A. § 5103A(d) when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) there is an indication the current disability or symptoms may be associated with service, and (4) there is not sufficient medical evidence to make a decision. 38 U.S.C.A. § 5103A(c)(4). Evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In the instant case, the veteran's service medical records do not contain evidence of an in-service seizure disorder and there is no competent evidence that a current seizure disorder is related to his service. The veteran has not reported a continuity of symptomatology extending from service. For these reasons, an examination or opinion is not necessary. Cf. McLendon v. Nicholson, 20 Vet App 79 (2006). There is no indication of additional pertinent evidence that has not obtained, or made sufficient efforts to obtain, corresponding records. Therefore, the facts relevant to the veteran's claims have been properly developed, and there is no further action to be undertaken to comply with the provisions of the VCAA and the implementing regulations. See Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. §5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Applicable laws and regulations in service connection claims Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The veteran's service medical records are negative for complaints or treatments related to a seizure disorder. In September 2002 the veteran was admitted to the Dorn Veterans Hospital at the Columbia, South Carolina VA Medical Center (VAMC) after having a seizure. The treating physician noted an extensive history of alcohol abuse and seizure related to alcohol withdrawal. The diagnosis was a seizure disorder that was possibly related to alcohol withdrawal. A September 2002 treatment note from the VAMC reported that the veteran had a seizure disorder that was most likely related to alcohol withdrawal but that an epileptic disorder still could not be ruled out. In October 2002 the veteran was treated by a neurologist at the VAMC. The neurologist noted that the veteran was admitted to the hospital in September because of generalized tonoclonic seizures most likely related to alcohol. The veteran's sister was present at the veteran's admission and confirmed that the veteran was a very heavy drinker who had frequent seizures from drinking. The diagnosis was alcohol- induced seizures. In November 2002 the veteran underwent an electroencephalographic examination (EEG). The impression was a normal EEG. In September 2004 the veteran presented to the VAMC with complaints about anger over the death of a friend who died during basic training. The veteran had memory loss for 2 years that began with seizures from the withdrawal from alcohol. The veteran reported that he was seen by a psychiatrist during boot camp. The diagnosis was PTSD with depression and psychotic features; mood disorder related to general medical condition and seizures. In January 2005 the veteran presented to the VAMC with depression. The assessments were depression, PTSD, hypertension and a seizure disorder. Analysis The record indisputably documents a seizure disorder. The service treatment records do not document a seizure disorder in service. The veteran has reported that he was treated by a psychiatrist in boot camp, but has not indicated how this treatment was related to his seizure disorder. In any event, the service treatment records do not show evidence of this treatment. There is also no competent evidence linking the current seizure disorder to service. Record shows no seizure disorder until approximately 20 years after service when the veteran was admitted to the VA hospital. The veteran has not reported a continuity of symptomatology and the record does not otherwise document such continuity. There is no medical opinion linking the current disability to service. Additionally, in October 2002 a treating neurologist concluded that the veteran's seizure disorder was alcohol induced. As a lay person, the veteran is not competent to render an opinion that the seizure disorder is related to an injury or disease in service. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The medical records do not contain any evidence that the current seizure disorder is related to any disease or injury during service. None of the veteran's treatment records relate any disease or injury in-service to the current seizures. There is no competent opinion linking the current disability to service. The preponderance of the evidence is, therefore, against the claim for entitlement to service connection. VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. 38 U.S.C.A. § 5107(b). That doctrine, however, is not applicable in this case because there is no evidence of an in service disability, there is no competent evidence of a nexus between the current disability and service, and the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for a seizure disorder is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs