Citation Nr: 1219331 Decision Date: 06/01/12 Archive Date: 06/13/12 DOCKET NO. 08-22 957A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a seizure disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to April 1967, including combat service in the Republic of Vietnam. He received the Air Medal, Distinguished Flying Cross, and Purple Heart Medal. This matter originally came before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Veteran testified before the undersigned at an August 2010 videoconference hearing at the RO. A transcript of the hearing has been associated with his claims folder. In September 2010 the Board remanded the claim for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A seizure disorder was initially demonstrated years after service and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service, to include exposure to Agent Orange. CONCLUSION OF LAW A seizure disorder was not incurred in or aggravated by active service, to include exposure to Agent Orange, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSIONS Notice and Assistance As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim decided below has been accomplished. In particular, the VCAA duty to notify was satisfied by a letter sent to the Veteran in September 2007, which fully addressed what evidence was required to substantiate the Veteran's claim, and the respective duties of VA and a claimant in obtaining evidence. The letter also specifically advised the Veteran of the Dingess elements, to specifically include that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman, 19 Vet. App. at 484. The Board also finds that there is no indication that any additional action is needed to comply with the duty to assist the Veteran in connection with the claim decided below. First, the Veteran's service treatment records are on file, and the claims file contains all available records from the VA and non-VA sources the Veteran identified as having relevant records. The Veteran has not identified and the file does not otherwise indicate that there are any additional pertinent records that should be obtained before the appeal is adjudicated by the Board. In addition, the Veteran was afforded a VA examination to determine whether his claimed disability is related to service. The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the claimed symptoms in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Board accordingly finds no reason to remand for further examination. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. The duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2010 hearing, the undersigned noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. This included identifying the opportunity to schedule a further VA medical examination. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) and has not identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, VA complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board also finds that there was compliance with the September 2010 Board remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board directed the AMC/RO to schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his claimed condition. As indicated, this was accomplished in October 2010 and April 2011. For these reasons, the Board finds that the Board's September 2010 remand directives have been complied with and, therefore, no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries, 22 Vet. App. at 104-05. Hence, the Board may proceed with adjudicating the issue based on the record. In light of this evidentiary development, the Board finds that all necessary facts have been properly developed in regard to the Veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist in the development of evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service Connection The Veteran contends that he has a seizure disorder that is related to his period of active duty service, and specifically to his exposure to Agent Orange in Vietnam. Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and epilepsy becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a)(2011). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(a)(3)(West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2011). The presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition other than those for which the Secretary has specifically determined that a presumption of service connection is warranted. See National Academy of Sciences report, "Veterans and Agent Orange: Update 1996," dated March 14, 1996. The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease, Parkinson's disease, B-cell leukemias, and AL amyloidosis. See 38 C.F.R. § 3.309(e). The foregoing diseases shall be service connected if a Veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Hepatobiliary cancers, nasopharyngeal cancer, bone and joint cancer, breast cancer, cancers of the female reproductive system, urinary bladder cancer, renal cancer, testicular cancer, leukemia (other than CLL), abnormal sperm parameters and infertility, Parkinson's disease and parkinsonism, amyotrophic lateral sclerosis (ALS), chronic persistent peripheral neuropathy, lipid and lipoprotein disorders, gastrointestinal and digestive disease, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, cognitive and neuropsychiatric effects, gastrointestinal tract tumors, brain tumors, endometriosis, adverse effects on thyroid homeostasis, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). In order to establish service connection by presumption, based on herbicide exposure, a disease listed above (see 38 C.F.R. § 3.309(e)) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). The Veteran asserts that service connection is warranted for a seizure disorder. However, after having considered the evidence, the Board finds service connection for such disability is not warranted as the preponderance of the evidence is against the claim. The service treatment records do not show any complaints or treatments of seizure activity. A private physician's record dated in April 1973 reflects that the Veteran experienced an apparent grand mal seizure in February 1973. It noted that the Veteran reported that in August 1972 he had experienced an episode of feeling "odd and dreamy" and in October 1972 had experienced a brief episode of feeling sick and weak. A May 1973 treatment record from this same physician indicated that the Veteran had another seizure in April 1973. Dilantin was prescribed. A November 2003 VA treatment record noted that the Veteran was still taking Dilantin for his seizure disorder. A May 2005 treatment record noted that the Veteran was using Phenobarbital and Dilantin. He had had no seizure activity and no auras recently. A private physician's statement dated in October 2006 noted that the Veteran was being followed for complex-partial and generalized convulsive epilepsy which was well-controlled on Dilantin and Phenobarbital. On VA Agent Orange examination in December 2009 the Veteran reported a history of seizures, with none in the past 30 years and no auras in the past five years. On VA examination in October 2010 the Veteran reported having an onset of seizures in 1973. He reported that his seizure disorder was well-controlled with medications since that time. After reviewing the claims folder and taking the Veteran's history, the examiner stated that the Veteran's seizure disorder did not have its onset during service or within one year of discharge from service. In an addendum examination report dated in April 2011, the VA examiner stated that given that the Veteran's first seizure occurred approximately six years after his exposure to Agent Orange ended, it was unlikely that the seizure disorder resulted from Agent Orange exposure. He also noted that review of medical literature on neurologic effects of Agent Orange failed to confirm an association of Agent Orange exposure and seizure disorder either concomitant with or after exposure. In order to establish service connection on a presumptive basis, the Veteran's seizure disorder (i.e.--epilepsy) must have become manifest to a degree of 10 percent or more within one year from the date of termination of his period of service. In this case, there is no evidence that the Veteran's seizure disorder manifested itself to a compensable degree within one year of his separation from service. As noted above, the Veteran indicated that his seizures first began in 1973, with some possible auras noted in 1972. The first diagnosis of seizure disorder is in 1973. Hence, the Board finds that evidence of record does not establish that the Veteran is entitled to service connection on a presumptive basis for his current seizure disorder. The Veteran has asserted that his seizure disorder is related to Agent Orange exposure. In order for a Veteran to establish service connection on a presumptive basis for a disability that results from exposure to (herbicides) Agent Orange while serving in Vietnam, the disability must be one that is statutorily listed as a presumptive condition. With respect to the Veteran's claim for service connection as a residual of exposure to Agent Orange, it is not disputed that the Veteran served in Vietnam and was, thus, exposed to Agent Orange. However, the Board notes that the disabilities that have been positively associated with Agent Orange do not include seizure disorders. See 38 C.F.R. §§ 3.307, 3.309 (2011). Further, there is no competent medical evidence of record that causally links the Veteran's seizure disorder to exposure to Agent Orange in service. Combee v. Brown, 34 F. 3d 1039 (Fed Cir. 1994). Rather, the VA examiner's opinion was that there was no such relationship between exposure to Agent Orange and a seizure disorder. Therefore, in the absence of any evidence to the contrary, the Board finds that there is simply no medical evidence of record supporting a causal connection between the Veteran's exposure to herbicides during service and his current seizure disorder. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. In this case, the Veteran is competent to report that he first experienced seizure episodes in 1973 and that he may have experienced auras in 1972. However, as a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana, see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Although the Board does not question the sincerity of the Veteran's conviction that he has a seizure disability related to his military service, in light of the foregoing, the Board finds that the preponderance of the evidence is against the claim and there is no doubt to be resolved. As such, the benefit sought on appeal must be denied. In reaching this conclusion, the Board does not wish in any way to diminish the Veteran's heroic and well-decorated Vietnam combat service, for which he was awarded the the Air Medal, Distinguished Flying Cross, and Purple Heart Medal. Although the Board is sympathetic to his claim, the Board it is without authority to grant his claim on an equitable basis, and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Service connection for a seizure disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs