Citation Nr: 1301966 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 07-12 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to service connection for Dementia with Lewy Bodies (DLB), to include as secondary to service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for non-epileptic events, to include as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1955 to February 1959 and from April 1959 to January 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). In a March 2008 statement, the Veteran requested a local Travel Board hearing, which was held before the undersigned Veterans Law Judge in April 2008. A transcript of that hearing is associated with the record. The issue on appeal was previously stated as service connection for a head injury resulting in a seizure disorder. However, when a claimant files a claim for VA benefits, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the medical evidence indicates different causes for the Veteran's symptoms, so the issues on appeal have been recharacterized as shown above. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed seizure disorder. 2. The Veteran's DLB is not etiologically related to his active service, and was not caused or permanently aggravated by his service-connected PTSD. 3. The Veteran's non-epileptic events are etiologically related to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a seizure disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. The criteria for service connection for DLB, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for non-epileptic events, claimed as secondary to service-connected PTSD, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 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 v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "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)). 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) (2012). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2006). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. Seizure Disorder The Veteran contends that he has a seizure disorder that was caused by his active service, to specifically include a head injury that occurred in 1957. A review of the Veteran's service treatment records (STRs) shows that on an undated report of medical history, the Veteran reported dizziness or fainting spells and he explained he had headaches, dizziness, and fainting spells following a concussion in 1957. A January 1957 clinical record shows that the Veteran was treated at the base hospital on McConnell Air Force Base in Kansas for a fractured right fibula. The clinical record notes that the Veteran could not remember how he was injured. On December 1974 retirement examination the Veteran denied any dizziness or fainting spells and on clinical evaluation his neurological system was found to be normal. Private treatment records from Valley Neurology Associates show that the Veteran was seen for complaints of episodic alterations in levels of consciousness in January 2002. After examination and magnetic resonance imaging scan (MRI), an impression of partial complex seizures was noted. The record indicates that the Veteran continued to receive follow-up treatment at Valley Neurology Associates to monitor his seizure disorder until December 2004. Private treatment records from the Barrow Neurological Institute (BNI) show that in June 2006 the Veteran was seen by Dr. R.M., with complaints of an increase in seizure events, despite treatment and anti-epileptic medication. After examination, and witnessing one of the seizure events, Dr. R.M. stated that the symptoms described by the Veteran, and witnessed during the examination, were characteristic of non-epileptic events. Although the existence of partial complex seizures, as diagnosed in January 2002, could not be completely ruled out, Dr. R.M. noted that the likelihood that the Veteran had partial complex seizures was low. Dr. R.M. recommended a period of in-patient monitoring to determine the nature of the Veteran's seizure events, and suggested that he be weaned off of his anti-epileptic medication. A September 2006 treatment record from BNI shows that the Veteran was seen by Dr. R.M. for follow-up treatment. The results of his in-patient monitoring study were reviewed, and it was noted that seven of his spells were captured on electroencephalography (EEG) and all were shown to be non-epileptic in nature. Dr. R.M. assessed non-epileptic events and suggested the Veteran follow-up with a psychiatrist or psychologist, as such events could be caused by major life stressors. VA treatment records from November 2004 through August 2010, show that the Veteran receives regular medical treatment for a variety of health concerns, including his reported "seizures". The Veteran consistently described his "seizures" as staring episodes, without convulsions. He has reported that he attributes the "seizures" to his service-connected PTSD or to anxiety. On September 2010 VA examination, the Veteran reported episodic loss of consciousness 2 to 5 times a day, lasting 20 to 45 seconds, or up to a minute. The Veteran compared the episodes to falling asleep. The Veteran reported that he had been diagnosed with non-epileptic events by BNI in 2006. After examination, and review of the claims files, the VA examiner diagnosed Dementia with Lewy Bodies (DLB). The examiner did not find clinical evidence to warrant a diagnosis of a seizure disorder, and noted that June 2006 in-patient monitoring studies at BNI revealed results that excluded the possibility of seizures as there were no abnormalities found on EEG consistent with epilepsy or seizures. The examiner explained that the episodes the Veteran reported were more likely fluctuations in alertness secondary to DLB. Also of record, are various lay statements from the Veteran and his spouse that contend that the Veteran has a seizure disorder, with references made to various VA and private treatment records indicating the Veteran receives treatment and is on medication for such a disorder. However, while the Board acknowledges that the Veteran and his spouse are competent to give evidence about observable symptoms such as fluctuations in attention and alertness, they are not competent in this instance to opine as to whether the Veteran has a seizure disorder. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The competent medical evidence in this case shows that the Veteran does not have a currently diagnosed seizure disorder, and that his seizure-like events are non-epileptic in nature and likely related to major life stressors or to his DLB. Under 38 U.S.C.A. §§ 1110, 1131, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Here, the VA examiner found that the Veteran does not have a seizure disorder, and cited to the BNI treatment records which showed no evidence of epilepsy or seizures after in-patient monitoring. Accordingly, service connection for this disability is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Dementia with Lewy Bodies The Veteran contends that he has DLB related to his active service, specifically to an in-service head injury, or that his DLB was caused or chronically worsened by his service-connected PTSD. A review of the Veteran's STRs is silent for treatment for or a diagnosis of dementia. As noted above, an undated report of medical history shows the Veteran reported dizziness and fainting spells following a 1957 concussion. However, the Veteran denied dizziness and fainting spells on his December 1974 separation examination. On clinical evaluation his neurological system was found to be normal. Private treatment records from Valley Neurology Association show that in October 2004, after MRI, the Veteran was given a diagnosis of mild dementia, degenerative. The Veteran received follow-up care at Valley Neurology Association until December 2004. VA treatment records show that the Veteran seeks ongoing care for symptoms associated with his DLB. There is no indication from the VA treatment records that his DLB is related to his active service, or his service-connected PTSD. On September 2010 VA examination the examiner noted that August 2010 VA treatment records noted the possibility of DLB as the cause of various symptoms reported by the Veteran; including, syncope, dementia, and parkinsonism. After examination and review of the claims files, the examiner diagnosed DLB, which can cause fluctuations in alertness, visual hallucinations, dementia, and parkinsonism. In a March 2012 addendum opinion, an examiner different from the September 2010 examiner, opined that the Veteran's DLB was not caused or aggravated by his active service, to include any head injury sustained therein, or his service-connected PTSD. The examiner explained that DLB is a degenerative disease of the brain of unknown cause, but that it is not a presumptive condition related to or caused by military service. The examiner noted that while the Veteran's PTSD manifests in significant symptoms, he explained that the symptoms of the Veteran's DLB including syncope, parkinsonism, gait disturbance, tremors, and dementia, were not worse in the presence of his PTSD symptoms. The Board finds that the opinion is clearly expressed, based on an informed review of the Veteran's medical history, and persuasive. It is significant that there is no contrary medical opinion of record. In sum, the Board acknowledges that the Veteran has a current diagnosis of DLB; however, there is no indication from the VA or private treatment records that his DLB is related to his active service, to include any head injury sustained therein, or that it is related to his service-connected PTSD. Furthermore, the March 2012 VA examiner competently opined that the Veteran's DLB was not related to his active service, or his service-connected PTSD. Therefore, the Board finds that the preponderance of the evidence is against the claim. Accordingly entitlement to service connection for DLB is not warranted. Non-Epileptic Events The Veteran contends that his non-epileptic events are caused by, or related to, his service-connected PTSD. The Veteran has not alleged, nor is there evidence to suggest that the non-epileptic events are directly related to his active service. With regard to the Veteran's main secondary service connection contention, the Board notes that the record includes evidence both for and against his claim. The evidence against the Veteran's claim consists of the September 2010 VA examination. On September 2010 VA examination, the examiner attributed the Veteran's non-epileptic events to his DLB. The examiner noted that DLB causes fluctuations in alertness and based on the Veteran's reports of his non-epileptic events, the most likely cause was his DLB. The evidence for the Veteran's claim consists of the March 2012 VA addendum opinion and various private and VA treatment records. The private treatment records of the Veteran's treatment at BNI suggest that his non-epileptic events are caused by major life stressors, and Dr. R.M. suggested that he follow up with a psychiatrist or psychologist. The VA treatment records show that the Veteran has received ongoing care related to his non-epileptic events. The VA treatment records note the Veteran's statements attributing his non-epileptic events to his service-connected PTSD. An August 2010 VA treatment record notes that the Veteran's non-epileptic events were likely related to post traumatic causes. In the March 2012 addendum opinion, the examiner opined that the Veteran's non-epileptic events were elements of his PTSD expressions. The examiner noted that he recognized the fluctuations in attention to be longer than the duration reported by the Veteran and that the record indicated the Veteran had reported the onset of his non-epileptic events at least 15 years earlier, which resulted in a diagnosis of partial complex seizures. However; as noted above, it was later determined that the Veteran did not suffer from a seizure disorder. The examiner noted that the non-epileptic events usually arise from non-physical emotion type causes, and thus it was his opinion that the Veteran's service-connected PTSD was the most likely cause of the non-epileptic events. The examiner also noted that he had been involved in the Veteran's care from 2005 to 2006. The Board has reviewed the various medical opinions against the backdrop of the overall medical history documented in the claims file. It is clear that the Veteran suffers from non-epileptic events manifested by staring episodes lasting for a minute, or longer. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, specifically, ordering a new VA examination. However, under the "benefit-of-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993); Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Thus, upon review of the evidence of record, the issue of whether the Veteran's non-epileptic events are caused, or aggravated, by his service-connected PTSD is at least in relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for non-epileptic events secondary to service-connected PTSD is warranted. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in July 2005, October 2005, and March 2006 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The March 2006 letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records, and he was afforded a VA medical examination in September 2010, and an addendum opinion was obtained in March 2012. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a seizure disorder is denied. Entitlement to service connection for DLB, to include as secondary to service-connected PTSD, is denied. Entitlement to service connection for non-epileptic events, to include as secondary to service-connected PTSD, is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs