Citation Nr: 1303628 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 08-00 128A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a seizure disorder, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1974. He also had additional service with the United States Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which determined that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a seizure disability. In November 2012, the Veteran submitted additional evidence with a waiver of consideration by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The Veteran was scheduled to present testimony at the Board's Central Office in Washington, DC, before a Veterans Law Judge in April 2009. However, the Veteran failed to report to the hearing. As the record does not contain further explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2012). In June 2009, the Board found that new and material evidence had not been received to reopen the claim of entitlement to service connection for a seizure disorder. In an August 2011 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's June 2009 decision and remanded the claim for readjudication consistent with the Court's memorandum decision. In May 2012, the Board reopened the Veteran's claim and remanded it in order to obtain a VA examination. The case has now been returned to the Board for further appellate action. FINDING OF FACT The Veteran's seizure disorder is a disease which had its onset during a period of inactive duty for training, his seizure disorder was not permanently aggravated as a result of his service or a service-connected disability, and the most probative evidence fails to link the Veteran's current seizure disorder to service or to a service-connected disability. CONCLUSION OF LAW The requirements for establishing service connection for a seizure disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an October 2005 letter issued prior to the February 2006 initial rating decision, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A May 2012 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In a June 2012 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection on a secondary basis. The case was last readjudicated in November 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, service personnel records, VA treatment records and examination reports, medical treatise evidence, and additional lay evidence. Additionally, there is substantial compliance with the Board's prior remand instructions. The Board's instructions included providing additional VCAA notice, requesting information regarding any additional treatment records, and scheduling the Veteran for a VA examination in order to obtain opinions regarding direct and secondary service connection, to include on the basis of aggravation. In response, the AOJ sent the Veteran May 2012 and June 2012 letters that provided notice of what information and evidence was needed to substantiate his claim for service connection on a secondary basis, as well as how disability evaluations and effective dates are assigned. The AOJ also scheduled the Veteran for a June 2012 VA examination. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Furthermore, the June 2012 VA medical opinion is adequate because the examiner explicitly considered the Veteran's claims file and medical records, provided a detailed description of the Veteran's generalized tonic-clonic seizure disorder (grand mal), and included comprehensive rationales with citations to the Veteran's medical history for her medical opinions. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although the Board acknowledges the Veteran's January 2008 statement that "The doctor didn't wait around until I came out of the seizure to talk to me," the Board notes that this refers to an earlier examination because it predates the June 2012 date of examination. As such, it has no bearing on the adequacy of the June 2012 opinion. As discussed above, the Board has considered and complied with applicable VCAA provisions. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In the present case, the Board finds that the evidence does not support an award of service connection for a seizure disorder. The Board acknowledges that the Veteran has a current diagnosis of a seizure disorder during the pendency of the claim-in this case, in or after August 2005. Specifically, the June 2012 VA examiner diagnosed the Veteran with generalized tonic-clonic seizure disorder (grand mal). McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). However, the evidence does not show in-service incurrence or aggravation of a disease or injury and a nexus between an in-service injury or disease and the current disability. The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Presumptive periods do not apply to periods of active duty for training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In this case, the Veteran's service treatment records indicate that he experienced his first possible seizure while on inactive duty training in December 1978. Service treatment records also reflect that the Veteran experienced a grand mal seizure in June 1979 while on active duty for training; the Veteran was driving a military vehicle at the time, and the seizure resulted in a traffic accident. A 1993 VA hospital summary noted the Veteran was being followed for a seizure disorder secondary to alcoholism. During a 1995 VA examination, the Veteran reported that he had his first seizure in 1978, with no additional seizures until 1992, when he began having grand mal seizures several times a month. The competent evidence of record indicates that the Veteran's December 1978 seizure during inactive duty training is attributable to a disease rather than an injury. Service connection cannot be awarded for a disability resulting from a disease that was incurred during inactive duty training. Therefore, further development of that theory of entitlement is not warranted. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). The Board has also considered whether the documented June 1979 grand mal seizure during active duty training caused or aggravated his current seizure disorder. As an initial matter, the Board finds that the presumption of soundness is inapplicable because the Veteran's seizure disorder was initially documented during inactive duty training in December 1978, as discussed above. 38 C.F.R. § 3.304. With respect to the theories of causation and aggravation on a direct basis, VA obtained an opinion from an examining physician in June 2012. She opined that: The Veteran's pre-existing seizure disorder was not permanently worsened beyond normal progression (aggravated) during the Veteran's active duty for training in June 1979....There was no documentation to suggest that he had permanent aggravation by training in service. There would be no clinical reason as to why the training would permanently aggravate the condition. There were no records that indicated the seizure disorder was caused by or aggravated by an injury during military active duty or training. Based on [the] lack of evidence of permanent aggravation by training, [the] presence of possible factors that caused intermittent seizures in the past, [the] lack of recent seizure activity, and medical knowledge, the seizure disorder was not permanently aggravated by [the Veteran's] training in [the] military. The Board has also considered whether the Veteran's service-connected diabetes mellitus, type 2, caused or aggravated his current seizure disorder. VA also obtained an opinion from the June 2012 examining physician as to that possibility. She opined that: Hypoglycemia associated with treatment for DM [diabetes mellitus] can sometimes cause seizures; however, [the] veteran stated [that] he never had any seizures associated with hypoglycemia (there was also no documentation to suggest any hypoglycemia induced seizures). There were no records indicating any relation between his DM and the seizures. His seizures started long before [the] onset of the DM (DM onset ~1997 per some VA records), and no records indicated any permanent worsening due to DM. The types of seizures he has do not appear to be associated with DM-no causation [is] established in [the] records, [and the Veteran] has other reasons for some of his seizures (such as alcohol use). Based on [the] lack of evidence of connection between the DM and the seizures in [the] records (including no seizures associated with hypoglycemia), [the] onset of seizures prior to DM, [the] presence of other inciting factors for seizures (such as alcohol), and medical knowledge, the seizure disorder was not caused by DM. The Board finds that the June 2012 VA examiner's opinions with respect to the questions of causation and aggravation on a direct and secondary basis are the most probative of record. The examining VA physician's opinions constitute competent medical evidence because she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, the Board finds that the VA examining physician's etiological opinions are credible based on their internal consistency and her duty to provide truthful opinions. Additionally, in determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. On this basis, the June 2012 VA examiner's opinion is entitled to the highest probative value because she explicitly considered the Veteran's claims file and medical records, discussed his medical history in great detail in her report, and interviewed the Veteran. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Morris v. West, 13 Vet. App. 94, 97 (1999) (a diagnosis that the appellant was "possibly" suffering from schizophrenia was deemed speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link is too general and inconclusive); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). On this basis, the June 2012 VA examiner's opinion is entitled to the highest probative value because her etiological conclusions were unequivocal and conclusive. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). On this basis, the June 2012 VA examiner's opinion is entitled to the highest probative value. Her reasoning with respect to direct service connection was clear: There was no clinical reason why the training would permanently aggravate the condition, there were no records that indicated the seizure disorder was caused by or aggravated by an injury during military active duty or training, and there was a lack of recent seizure activity. The VA examiner's reasoning with respect to secondary service connection was likewise clear: The Veteran stated that he never had any seizures associated with hypoglycemia, and there was also no documentation to suggest any hypoglycemia induced seizures; there were no records indicating any relation between his DM and the seizures; his seizures started long before the onset of the DM; no records indicated any permanent worsening due to DM; and the types of seizures he has do not appear to be associated with DM. Consequently, the Board finds that the June 2012 VA examiner's opinions as to the likelihood of causation and aggravation on both a direct and secondary basis warrant the greatest probative weight. By contrast, the Board finds that the Veteran's own lay statements linking his seizure disorder to service, or to his service-connected DM, are not entitled to any probative weight because under the circumstances of this particular case he is not competent to opine on such complex medical diseases. 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 all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). 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). However, lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (rheumatic fever is not a condition capable of lay diagnosis). 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, 492 F.3d at 1376-77 (Fed. Cir. 2007). In this case, the Veteran is competent to report that he experienced seizures in 1978 and 1979, and again from 1992 to approximately 2000. However, because seizure disorders, as well as any possible interactions with DM and herbicides, involve complex medical questions and the interpretation of objective medical tests, the Veteran is not competent to render a nexus opinion on those matters. Woehlaert, 21 Vet. App. at 462. Consequently, the Veteran's August 2005 statement that "[Y]ou don't know what affects Agent Orange has on people," and his December 2012 contentions via his representative that his seizure disorder was permanently aggravated by service, or secondary to or aggravated by his DM, do not constitute a competent medical nexus opinion. The Board also notes that generally, generic information in a medical journal or treatise is too general and inconclusive to constitute the sole basis for establishing a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 227 (1999). In this case, the Veteran submitted an article from an internet source, dated April 2002, entitled "Holiday Heart Syndrome," regarding cardiac rhythm disturbances caused by alcohol use. The Board finds that the article does not provide a nexus between the Veteran's seizure disorder and his service, or between his seizure disorder and his DM. Furthermore, the article was of record in the claims file reviewed by the June 2012 VA examiner, who nevertheless rendered a negative nexus opinion after her review thereof. Consequently, the Board finds that the article cannot warrant a grant of service connection. With respect to chronicity and continuity of symptomatology, the Veteran has reported that his current symptomatology was not continuous. Layno, 6 Vet. App. at 470. Specifically, he reported at his May 1995 VA examination that his first seizure after 1978 (presumably, 1979) did not occur until 1992. Moreover, the June 2012 examiner found that the Veteran had not had a seizure since 2000. Therefore, service connection on the basis of continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). Furthermore, the Board finds that service connection is also not warranted on the basis of chronicity because the Veteran was not diagnosed with a chronic seizure disorder in service. Id. In sum, the Board finds that the most probative evidence fails to link the Veteran's current seizure disorder to service, or to a service-connected disability. Accordingly, service connection for a seizure disorder is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a seizure disorder, to include as secondary to service-connected diabetes mellitus is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs