Citation Nr: 1317848 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 05-01 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1984 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Providence, Rhode Island. In this decision, the RO denied reopening the Veteran's service connection claim for a seizure disorder. In April 2008, a videoconference Board hearing was held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the claims file. This issue was previously before the Board in March 2008, January 2011, and September 2012. On each occasion, it was remanded for additional development. Also, in the Board's January 2011 decision and remand, the Board reopened the Veteran's claim such that it may now be considered on the merits. In its various remand orders, the Board requested the agency of original jurisdiction (AOJ) obtain additional VA treatment records and medical records related to his claim for Social Security Disability benefits and afford the Veteran a VA medical examination and opinion. These actions have all been accomplished by the AOJ, as all pertinent VA and Social Security Administration records have been obtained, and the Veteran was afforded an April 2013 VA medical examination and opinion. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Also remanded by the Board in January 2012 was the Veteran's service connection claim for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). In a January 2013 rating decision, the AOJ granted the Veteran service connection for PTSD with alcohol dependence and depressive disorder. Because the appellant was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDINGS OF FACT 1. The Veteran experienced trauma to the head during service. 2. Competent evidence of record indicates that the Veteran has a current seizure disorder as a result of head trauma experienced during service. CONCLUSION OF LAW The criteria for service connection for a seizure disorder have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. Service Connection for a Seizure Disorder The Veteran seeks service connection for seizure disorder. He asserts that he was struck on the head on several occasions as part of a hazing ritual by fellow soldiers during basic training in service. These repeated head traumas resulted in a seizure disorder, according to the Veteran's account. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Organic diseases of the nervous system, brain thrombosis, and epilepsies are all among the disorders listed as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) potentially applies to the present case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's service treatment records are negative for any diagnosis of or treatment for any trauma to the head during service. On an August 1989 service separation report of medical history, he denied any history of head injury, and no neurological or cranial abnormalities were noted on a concurrent physical evaluation. In his oral testimony and written statements, the Veteran has stated he did not initially report his hazing and head injuries at the time these events occurred, due to his senses of shame and fear following these incidents. Subsequent to service, the Veteran first reported a seizure disorder in 1994, when he sought VA hospitalization and treatment for the same. He reported a history of head trauma at age 18 months, when he fell and struck his head on a radiator in his home. No in-service head trauma was reported. He also reported a 15 year history of alcohol abuse. Thereafter, the Veteran continued to report recurrent seizures, generally occurring during sleep, characterized by shaking, mental incoherence, and urinary incontinence. Subsequent VA clinical treatment records and examination reports confirm a current diagnosis of a seizure disorder. VA examinations in February 2011 and April 2013 also reflect VA physicians' opinions that the Veteran's seizure disorder is at least as likely as not related to head trauma sustained in service. In order for VA to reject a medical opinion due to its factual basis, VA must actually find, based on the evidence, that the factual basis in question is inadequate or inaccurate. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that VA may not disregard a medical opinion solely on the rationale that the opinion is based on history provided by the veteran, but may reject an opinion that is based on facts provided by the veteran that are found to be inaccurate, or if the record contradicts the facts provided by the veteran). It is not enough for VA to find that the reported factual basis is not verified within the record, if the basis is of the type subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the present case, the Veteran is certainly competent to report having undergone hazing during basic training in service, to include multiple head traumas. While the service treatment records do not indicate any treatment for head trauma or hazing-related injuries, he did seek in-service psychiatric treatment in 1987 on a self-referral basis for dealing with "stress and anger", symptoms which could have resulted from hazing or harassment. Post-service, the Veteran first reported in approximately 2004 that he experienced hazing in service and was physically assaulted at that time. Later, he stated that the hazing he experienced included a sexual assault. In December 2012, a VA clinical psychologist reviewed the claims file, examined the Veteran, and determined a diagnosis of PTSD was warranted based on personal assault in service. The examiner determined that the Veteran exhibited a change of behavior in service that was consistent with his reported history of having undergone a personal assault at that time. Based on this finding by a competent VA examiner, the Board finds as credible the Veteran's assertions of having experienced head trauma during service as the result of hazing. Additionally, the competent medical evidence of record indicates this in-service head trauma was sufficient to cause his current seizure disorder. Thus, service connection for a seizure disorder is warranted. ORDER Service connection for a seizure disorder is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs