Citation Nr: 1321319 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 09-30 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a seizure disorder, to include as a residual of malaria. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from June 1967 to February 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). The case was before the Board in March 2012 when it was remanded to the RO for additional development. In January 2013, the Board remanded the issue on appeal to the RO to obtain Social Security Administration (SSA) records and an additional nexus opinion on his seizure disorder. SSA records were subsequently obtained and added to the claims files, and an additional opinion was obtained in January 2013 and added to the claims files. As the requested actions have been complied with, there has been substantial compliance with the January 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Veteran and his wife testified at a travel board hearing with the undersigned Veterans Law Judge (VLJ) in November 2011; a copy of the transcript is of record. FINDING OF FACT The most probative competent evidence of record fails to demonstrate that it is at least as likely as not that the Veteran currently has a seizure disorder that was present in service or is otherwise related to service. CONCLUSION OF LAW A seizure disorder was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in April 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. The Veteran was informed in the April 2008 letter of the factors for consideration in the assignment of a disability rating and/or effective date in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the April 2008 letter also informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA medical examination with nexus opinion was obtained in March 2012, with an additional opinion obtained in January 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2012 and January 2013 VA examination reports obtained in this case are adequate, as they are predicated on a reading of relevant medical records in the Veteran's claims files. The examiners considered all of the pertinent evidence of record and provided a rationale for the nexus opinions on file. There is adequate medical evidence of record to make a determination on the service connection issue decided in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his November 2011 travel board hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These 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. The Veteran was assisted at the November 2011 hearing by his accredited representative from the Wisconsin Department of Veterans' Affairs. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his complaints during service. They also asked questions to ascertain the existence of any potentially available outstanding evidence to substantiate the claim. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. 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 service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim The Veteran seeks service connection for a seizure disorder, to include as a residual of malaria. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, 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). In the case of a seizure disorder, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). The Veteran's service treatment records do not reveal any complaints or findings indicative of a seizure disorder, including on separation examination in February 1969, when his head and neurologic system were normal. The Veteran was hospitalized at Madison General Hospital in April 1984 for a seizure. A CT of the brain was within normal limits. An EEG was thought to be abnormal. The diagnosis was idiopathic seizure disorder. Treatment reports from F. S. Edelman, M.D., dated from May 1994 to November 2005, reveal that complex partial seizures with a yet unidentified focus were noted in May 1994. An MRI of the brain in April 2001 was considered normal; an MRI in July 2004 suggested slight atrophy at the hippocampus on the right. It was noted in November 2005 that the Veteran had had a history of complex partial seizures since 1986. He was doing well and thought to be seizure free until he had a complex partial seizure, with loss of consciousness, while driving on November 7th. The Veteran was seen at a private Emergency Ward in April 2004 for seizure activity after an off-duty policeman saw him driving on the wrong side of the road. He had no recollection of driving on the wrong side of the road when stopped. He was hospitalized at Meriter Hospital in June 2004 due to seizure activity. The discharge diagnosis was partial complex epilepsy with three seizures on the day of admission. Also on file is a May 2005 SSA Disability Determination in which the Veteran was denied benefits for epilepsy and sleep-related breathing disorders. Private treatment reports dated from January 2006 to March 2008 reveal that the Veteran had intractable seizures. He reported a history significant for a fever when he was 20 years old in Vietnam; he also had malaria at that time. According to an April 2008 letter from Dr. R. Sheth, a neurologist with the University of Wisconsin Hospital and Clinics, the Veteran had a past history of complex partial seizures attributed to an acute onset of prolonged febrile illness while serving in Vietnam. Although the illness was presumed to have been caused by malaria, he was unsure of the causative agent of encephalitis during the illness. Dr. Sheth noted that epilepsy has been proven to be a consequence of infection. The Veteran was status post right anterior temporal lobectomy and amygdalohippocampectomy in October 2006, which was performed to control seizures. According to the results of a physical evaluation conducted in August 2008 for MetLife, the Veteran was totally disabled with intractable epilepsy. The Veteran testified at his November 2011 hearing that he suffered from high fevers while serving in Vietnam, which can trigger epilepsy later in life; that he was treated for malaria in service; that he had gastrointestinal problems in service; and that he had a head injury in service, with periods of dizziness beginning in approximately 1970. The Veteran's wife testified that she started noticing problems in about December 1984, while the Veteran testified that he started having seizure problems in 1978. VA treatment reports dated from December 2009 to March 2012 shows treatment for seizures. A VA neurological evaluation, including review of the claims files, was conducted in March 2012. The diagnosis was generalized non-convulsive epilepsy with intractable epilepsy. The examiner concluded that, based on the evidence, it was not at least as likely as not that the Veteran's seizure disorder was causally related to service because the Veteran's febrile illness was not of sufficient severity or duration to be considered a medically reasonable cause for intractable epilepsy that began 15 years later. In response to the March 2012 Board remand, an additional opinion was obtained in January 2013 in which it was concluded, after review of the claims file, that the Veteran's epilepsy was less likely than not incurred in or caused by an in-service injury, event, or illness because seizures were first reported in 1985 and there was no report of change in mental status after any fever, head injury, malaria, or intestinal parasite in service. There is evidence on file both for and against the Veteran's claim for service connection for a seizure disorder. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board finds the March 2012 and January 2013 VA nexus opinions against the claim to be of more probative value, when considered along with the other evidence of record, than the April 2008 opinion from Dr. Sheth. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). Although Dr. Sheth relates the Veteran's seizures to an acute onset of prolonged febrile illness in Vietnam, due to malaria, this opinion is not based on a review of the claims files and does not include a clear rationale based on the medical evidence of record. Moreover, Dr. Sheth does not address the long gap between service discharge in 1969 and the initial evidence of seizures in 1984. On the other hand, the March 2012 and January 2013 VA opinions are based on a review of the claims files and examination of the Veteran. The VA opinions that the Veteran's post-service epilepsy is not causally related to service, to include headaches, fever, malaria, or gastrointestinal problems, are supported by a clear rationale with reference to the medical evidence of record, to include the absence of evidence of a seizure disorder for approximately 15 years after service discharge. The hearing testimony and lay statements on file have been taken into consideration in this case. Although the Veteran and his wife are competent to report on his subjective symptoms involving fever and signs of epilepsy, the Board finds that the Veteran and his wife, who have not been shown to have had any medical training, are not competent to opine as to whether the Veteran currently has a seizure disorder due to service because this determination of etiology requires medical expertise. In fact, the Veteran has not contended that he had seizures in service or soon thereafter. Rather he testified in November 2011 that his seizure problems started in 1978, which is a number of years after service discharge. Because all of the requirements for service connection are not shown, the Veteran does not have a seizure disorder due to service. The Board also finds that the preponderance of the evidence is against the Veteran's service connection claim, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a seizure disorder, to include as a residual of malaria, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs