Citation Nr: 1325763 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 07-16 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a seizure disorder secondary to a head injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1983 and from January 1991 to May 1991. He also had periods of National Guard and Reserve service. This matter initially came to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case, most recently in February 2013, for further evidentiary development and adjudication. The agency of original jurisdiction (AOJ) sought the Veteran's service treatment records from his 1991 period of active duty; however, no new records were obtained as a result of this development. The AOJ notified the Veteran of this fact in April 2013 and provided him with a supplemental statement of the case (SSOC) in May 2013, in which the AOJ again denied the Veteran's service connection claim. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The Veteran does not experience a seizure disorder that manifested during service or is otherwise related to service; no head injury was incurred during the Veteran's active military service. CONCLUSION OF LAW A seizure disorder was not incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in April 2006, which predated the July 2006 rating decision. See id. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. 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 Board also finds that VA has complied with all assistance provisions of VCAA, to include compliance with the February 2013 remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's available service treatment records and lay statements of the Veteran, as well as post-service treatment from VA and private treatment providers. Records of the Veteran's award of benefits from the Social Security Administration (SSA) have also been obtained and associated with the claims file. Records from the Veteran's treatment at the Biloxi VAMC were determined to be unavailable, as were any additional service treatment records from the Veteran's 1991 period of active duty. The Veteran was informed of these unavailable records in notice letters sent to him in August 2011 and April 2013. In March 2011, the Army Human Resources Command informed the AOJ that the Veteran's records had been transferred to the National Personnel Records Center (NPRC). The AOJ then requested the Veteran's records from the NPRC, which provided records most recently in March 2013. These records were duplicates of records previously obtained by the AOJ in the course of adjudicating the Veteran's claim. Thus, it appears that these records may represent the Veteran's complete service treatment record. In addition, the AOJ sought records from the Biloxi VAMC, which responded in March 2011 that any such records had been destroyed during Hurricane Katrina and were not available. Based on the above, VA has contacted all appropriate repositories to obtain any outstanding records to no avail. Thus, the Board finds further efforts to obtain any outstanding records would be futile. 38 C.F.R. § 3.159(c)(2). In cases such as these, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367(1991). However, the case law does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an "adverse presumption" where records have been lost or destroyed while in government control that would have required VA to disprove a claimant's allegation of injury or disease). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when there is: (1) evidence of a current disability; (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation; (3) an indication that the current disability may be related to the in-service event; and (4) insufficient evidence to decide the case. The Board is aware that no VA examination was provided to the Veteran in conjunction with his claim for service connection for a seizure disorder but notes that the record does not call for one. See 38 C.F.R. § 3.159(c)(4) (2012). In this case, as discussed below, there is simply no indication that the Veteran incurred a head injury in service or otherwise that his current seizure disorder is in any way linked to active duty, except by way of his unsupported and incredible allegation that he incurred a head injury while in service. As such, VA is not required to afford the Veteran an examination, and therefore, VA has no duty to inform or assist that was unmet. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). See also McLendon, 20 Vet. App. at 84-86 (with no indication that a disability or persistent or recurrent symptoms of a disability may be associated with the service or another service-connected disability, claim may be denied where claimant's submissions are insufficient to grant benefits or trigger duty to assist). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Relevant medical evidence consists of the Veteran's available service treatment records as well as records of his post-service treatment with both private and VA treatment providers. Review of the Veteran's service treatment records reflects no mention of treatment for a head injury or any complaints of seizures or other neurological problems. At his May 1991 separation medical examination, his neurological system was found to be normal. Similarly, on his May 1991 separation report of medical history, the Veteran denied experiencing "epilepsy or fits" or "frequent or severe headaches" and wrote instead that he was "in good health and tak[ing] no medications." Post-service medical records are silent as to any mention of a head injury or seizure disorder until March 1995, at which time the Veteran was hospitalized for a closed-head injury that occurred during an assault. When he was admitted, the friend who transported him to the hospital reported that the Veteran had been smoking crack at the time of the assault. He was hospitalized and diagnosed with a head injury secondary to an assault and a seizure disorder due to the head injury. Subsequent treatment records from both VA and private treatment providers reflect that the Veteran has been treated and hospitalized on many occasions following the initial March 1995 hospitalization for treatment of seizures. His medical history indicates, for many of these treatment records, that his seizure disorder developed secondary to a 1995 head injury. Private treatment records from January 1996 and August 2001 document the 1995 head injury, as do records from VA treatment providers dated in October 1995, November 1995, and February 2001. In addition, the Veteran's SSA records document that he reported having been struck in the head in 1995, causing a head injury that led to his disabling seizure disorder. The Veteran has stated on multiple occasions, including in his October 2006 notice of disagreement and his April 2007 substantive appeal, that he incurred a head injury in 1991, while he was still on active duty, and that his current seizure disorder stems from that in-service head injury. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a seizure disorder. VA and private treatment records confirm that the Veteran currently suffers from a seizure disorder. The Board concludes, however, that the greater weight of the evidence is against the claim. Importantly, no opinion relating the disorder to service is present in the record, and the Veteran has not submitted any competent medical evidence relating his seizure disorder to service. The Board has considered the evidence of record and finds that there is no competent evidence medically relating the Veteran's current seizure disorder to military service. Absent a medical opinion in the record of a relationship to military service, the Veteran's claim for service connection for a seizure disorder must be denied. There is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's time in service and his current seizure disorder. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, he is not competent to say that any such symptoms were a result of or worsened by any incident in service or were of a chronic nature to which any current disability is attributable. The Veteran has stated to VA that he incurred a head injury while he was still on duty in 1991 and that that head injury led to his present seizure disorder. The medical evidence does not lead to a conclusion that any current seizure disorder is related to service. The Board has considered the Veteran's contention that his claimed seizure disorder began in service or otherwise resulted from his time on active duty. The Veteran, however, has not demonstrated that he has any medical expertise to make such an opinion. The Board notes that although the Veteran is competent to report symptoms such as seizures, he does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of this disability. As a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter such as whether there exists a medical nexus between any current seizure disorder and service. As for his statements that he incurred a head injury in 1991 while in service, the record does not support such a contention. No such head injury is documented in the available service treatment records, and at his May 1991 separation examination, his neurological system was normal. He reported at his May 1991 separation medical history report that he was "in good health and tak[ing] no medications." Post-service medical records clearly document that the Veteran incurred a head injury in March 1995, nearly four years after his separation from service, that appears to have been the cause for his current seizure disorder. He has reported the head injury as occurring in 1995 to both private and VA treatment providers. There was no mention in the ensuing treatment records of a significant head injury prior to 1995. Further, when filing a claim for non-service-connected pension in 1995, the Veteran himself indicated to VA that his head injury occurred in 1995, not 1991. The Board thus does not find any claim that the Veteran incurred a head injury in service to be credible. The clinical evidence and the Veteran's own statements when seeking medical treatment contradict any claim that he incurred a head injury during service. In reaching its conclusion, 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 for service connection for a seizure disorder, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In so finding, the Board has undertaken its review of the claim decided herein mindful of its heightened duty to explain the findings and conclusions. See O'Hare, supra. ORDER Entitlement to service connection for a seizure disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs