Citation Nr: 1300992 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-44 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for seizure disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from October 1951 to October 1959. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) which found that the Veteran had not submitted new and material evidence to reopen the claim of service connection for a seizure disorder. In the October 2010 statement of the case (SOC), a decision review officer (DRO) found that new and material evidence was submitted to reopen the claim and after de novo review, denied the claim on its merits. The RO originally considered the issue as a petition to reopen a finally denied claim, reopened the claim, and considered the claim on a de novo basis. The Board notes that service connection for a seizure disorder has never been considered prior to the March 2009 rating decision on appeal. However, the RO's error is harmless as it subsequently considered the claim on a de novo basis. In November 2010, the Veteran requested a Board videoconference hearing. In an October 2012 statement, the Veteran's representative withdrew his hearing request Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There is no competent lay or medical evidence of record showing that the Veteran currently suffers from a seizure disorder at any time during this appeal. CONCLUSION OF LAW A seizure disorder was not incurred in or aggravated by active service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in December 2008. See Dingess, supra. VA has obtained service treatment records, Social Security Administration (SSA) records, post-service treatment records, afforded the appellant physical examinations, obtained examinations and medical opinions as to the presence of a seizure disorder, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Epilepsies and other organic diseases of the nervous system may be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). 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 her 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. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. The Veteran contends that he has a seizure disorder due his in-service jeep accident. Based on a careful review of the record, the Board finds that the competent medical evidence of record does not demonstrate that the Veteran currently suffers from a seizure disorder. Although the Veteran has related a history of seizures and treatment for the condition, his STRs and post-service treatment records do not show a diagnosis or treatment of a seizure disorder. The Veteran's service treatment records show that he was hospitalized after he was thrown from a jeep and hit his head on the pavement. He sustained a concussion of the brain, a contusion on the left side of the head, a left subdural hematoma, and abrasions on the scalp, face, knees, left wrist, and left ankle. Skull X-rays obtained on admission were negative. He complained of a headache for several days. A spinal puncture revealed xanthochromic spinal fluid. Repeat punctures indicated that the fluid cleared within a few days. He was discharged about two weeks after the accident. Repeat skull X-rays taken in November 1953 were negative. In January and February 1954, the Veteran was hospitalized for observation of a suspected brain injury. X-rays of the skull taken in January 1954 showed no evidence of prior fracture or subdural hematoma. A Medical Board report dated in March 1954 recounted the history of the Veteran's jeep accident. At the time of his discharge from the hospital, he had some headaches, but made a satisfactory recovery. Since that time, he had progressively worsening symptoms, primarily headache in the left parietal area, described as throbbing and lasting about a day at a time. The headache was unresponsive to medications. The Veteran also described episodes in which he did things that he did not remember and which resulted in administrative difficulties and disciplinary action. Examination was negative for organic pathology. During the observation period, he occasionally complained of headaches. The final diagnosis in the Medical Board report was medical observation for suspect brain injury, not found, and passive aggressive reaction, chronic, moderate, manifested by passive obstructionism, procrastination, inefficiency, and the utilization of somatic complaints to manipulate his environment. It was determined that the Veteran was physically and mentally fit for further duty. The Veteran's September 1955 separation and reenlistment examination was negative for physical abnormality. The report of medical history made no reference to any injuries sustained in the jeep accident. The October 1958 physical for separation and reenlistment was also negative for physical problems. Skull X-rays taken in January 1959 were negative for significant abnormality. In May 1959, the Veteran was diagnosed as having bilateral cochlear nerve degeneration secondary to a brain concussion. Records of a hospitalization at Walter Reed Army Hospital in August and September 1959 showed evaluation for hearing loss. In September 1959, the Veteran was treated for a laceration above the eyebrow. Seven to eight sutures were required. The next day, he complained of increasing pain in the laceration area. The diagnosis was contusion in addition to laceration. The October 1959 separation examination report was negative for physical findings related to the head or cervical spine. It was noted that the Veteran had been hospitalized at Walter Reed Army Hospital for injuries to ears sustained in an accident. The Veteran was afforded a VA examination in July 1968. He reported the same history as on the claim form. His subjective complaints included occasional severe headaches and an inability to stand any pressure on the head because of head injuries. Examination showed that the head, face, and neck were normal. There was a scar on the forehead. The examiner referred to a special report from Maxwell Air Force Base (AFB) dated in March 1954. The Veteran said he had severe headaches two or three times a week since his accident, lasting from about two hours to half a day. Neurological examination was normal. The diagnosis was scars of the mid forehead. The RO received a statement from S. Perry Davis, M.D., dated in October 1972. The Veteran reported a history of being thrown from a jeep in June 1952. He stated that he hurt his back and skinned his head. At that time, the Veteran's complaints regarded the lumbar spine only. In January 1973, the Veteran was afforded a VA orthopedic examination. He related injuring his head and lower back in an auto accident in service. There were no complaints concerning a seizure disorder. TVA treatment records show that in January 1984 he reported a history of a head injury on the job in August. The diagnosis was cerebral contusion and possible fracture of the mastoid area. He complained of headaches, nose bleeds, and hearing problems. His wife stated that he was having difficulty with thought processes. Examination was normal. A computerized tomography (CT) scan was normal without cerebral atrophy. The diagnosis was memory loss and possible Alzheimer's disease. A January 1984 neurological consultation reflects that the Veteran was hit by a piece of wood as he was working on a bulldozer. He fainted for a few minutes. He complained of headaches. Neurological examination was normal. The doctor indicated that there was no evidence of neurological disease. The July 1985 letter from the Veteran's sister-in-law stated that he was seriously injured in a jeep accident in service. They visited him in the hospital at Hunter AFB. The head injury was severe and he had since then had terrible headaches. A letter from the Veteran's daughter, dated in April 1986, indicates that the Veteran was in a jeep accident at Hunter AFB in June 1952. He was knocked unconscious and did not remember much about the accident. He sustained a head injury. Her grandmother said he had a steel plate in his head. He was hospitalized at the base and Walter Reed and in Alabama. She wanted help proving that his severe headaches were caused by the accident. The Veteran remembered that the senator visited him in the hospital when he had the head injury. In the July 1987 letter, the Veteran's daughter stated that the Veteran was in an accident in service in 1952. He sustained a head injury so severe that they put a steel plate in his head. The Veteran had seen VA physicians only. VA physicians had told him that he had Alzheimer's disease and degenerative arthritis. In March 1988, the Veteran complained of headaches. He was later hospitalized from late March 1988 to April 1988. He reported a history of a four-year memory decline with associated personality change. It seemed to follow a head injury, and had been progressive since its onset. The Veteran also complained of right upper extremity pain with movement of the shoulder or neck. Examination was essentially normal. A CT scan of the head showed evidence of cerebral atrophy. A CT scan of the cervical spine revealed some hypertrophic changes at C5-7. The diagnosis included neck and right upper extremity pain secondary to cervical spondylolic (sic) radiculopathy and depression. An April 1988 neuropsychiatric consultation was obtained during the hospitalization. Notes indicated that the Veteran complained of worsening memory loss and occasional confusion subsequent to a head injury four years before. A hand-written notation on the copy of the record indicated that the head injury was in 1952. Testing failed to reveal any consistent memory deficit. An electroencephalogram was found to be normal. The report of the November 1992 VA general medical examination included reports of a history of cervical spine arthritis. The Veteran also indicated that he had been treated for some psychiatric illness. Neurological examination was unremarkable. Thought processes and content were normal. The pertinent diagnosis was cervical spine arthritis. A VA treatment record in February 1996 reflects that the Veteran presented with a long history of DJD of the cervical spine. He complained of posterior neck and bilateral shoulder pain, worse on the right, going back at least to 1988. The diagnosis was central DJD. Thereafter, the Veteran continued to report neck and right upper extremity symptoms through March 1997. A head CT scan performed in October 1996 showed no abnormalities. An electromyogram (EMG) of the right upper extremity performed in October 1996 was normal. The Veteran, his spouse, and his daughter testified during a May 1997 personal hearing. The Veteran stated that he was hospitalized for 17 days after the accident in June 1952. He was unconscious for 24 hours. Upon awakening, he had a neck brace on and was in traction. He had headaches and pain in the back of his head, neck and shoulders. After the hospitalization, he returned to unlimited duty. While in service, he was evaluated by a psychiatrist for about one month in Alabama. He also went to Walter Reed Hospital for evaluation of hearing and headaches. He started going to VA for medical treatment immediately after his discharge from service. He denied ever having another injury to the head or neck other than the 1952 accident. The Veteran's wife testified that she had been married to the Veteran for nearly 45 years. Since the 1952 accident, he complained of headaches and had severe nosebleeds. He also complained of shoulder pain. He did not suffer any injuries to the head or cervical spine after 1952. The Veteran's daughter related that she remembered him having bad headaches and that his neck and shoulders bothered him quite often. She described the Veteran having depression, mood swings, and forgetfulness. He also had nosebleeds. The Veteran submitted a copy of the May 1997 disability determination from the Social Security Administration (SSA). The decision found "severe" impairments according to the Social Security Act, which included degenerative disease of the cervical and lumbar spine, with cervical radiculopathy; profound hearing loss bilaterally; adjustment disorder with mixed anxiety and depressed mood; rule out amnesiac disorder NOS [not otherwise specified]; and rule out early stages of dementia. He was considered disabled for purposes of SSA disability benefits. The Veteran and his spouse testified before a member of the Board in November 1998. In 1952, the Veteran fell off a jeep. When he woke up in the hospital two or three days later, his shoulder and head were skinned and he had bruises. He was hospitalized for about one month. Currently, he had headaches practically all the time and occasionally had bad nosebleeds. He took Tylenol for pain. He had complained of cervical spine problems since the accident. During his treatment after the accident, he was told that his problems with headache and with the neck and shoulder would probably get worse. He was service connected for forehead scars. After the accident, the Veteran was on light duty intermittently until his separation due to his back. He had nosebleeds before he had his heart problems. After service, the Veteran drove trucks. He had no injuries during this time. He was currently retired on Social Security disability. He was evaluated in 1954 for purposes of a medical board. He was found to have a personality disorder. He could not recall whether his physical complaints were related to the psychiatric disorder or to the injury. The Veteran's wife testified that she had known the Veteran before he went into the service. Prior to service, he did not have any problems like his current ones. They got married while he was still in service, but after the accident. He mentioned problems with headaches and had problems with nosebleeds, even after his discharge. The complaints were essentially the same today. He always complained of headaches and had mood swings. A VA traumatic brain injury (TBI) examination was conducted in December 2009. The examiner found no mention of any seizure or epileptic convulsion in the Veteran's claims files. However, a VA treatment record in December 2008 noted that the Veteran had a seizure after his in-service hospitalization. The examiner attributed any symptom the Veteran had to dementia, not a TBI. A VA TBI was conducted in April 2010. The Veteran stated that he was on anti-epileptic medication and that he received all his medication from a VA medical facility. The examiner noted that a review of the Veteran's medications from that VA facility does not indicate any medication for epilepsy. After an examination and review of the Veteran's claims files, the examiner stated that the Veteran's symptoms are not attributable to a TBI or mental disorder. He stated that the symptoms that could possibly be due to post-traumatic epilepsy due to TBI cannot be confirmed either by medical record or history. A 2004 MRI indicated early dementia. The Veteran is not currently receiving anti-seizure medication, his EEG's do not suggest epilepsy, and the history offered by the Veteran's wife is not convincing for epilepsy. The diagnosis was TBI, mild with subarachnoid hemorrhage in service. The examiner noted that this condition caused headaches and back pain. The Veteran submitted articles relating to seizures from professional journals and other periodicals. They describe the symptoms, signs, diagnosis, prophylaxis and treatment of a seizure disorder. These articles do not even purport to address the specific facts of the individual case under consideration. As such they are not significantly probative of the issue before the Board to place the evidence in equipoise. As was stated earlier, current disability is required to establish service connection. See Boyer, Brammer, supra. Laypeople are not competent to state that the Veteran has or ever had a seizure disorder. See Davidson, Jandreau, Kahana. In addition, the VA examiner indicated symptoms described by the Veteran's wife were not symptoms of a seizure disorder. Therefore, in the absence of evidence of a current disability, the preponderance of evidence is against service connection for a seizure disorder and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for a seizure disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs