Citation Nr: 1326775 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-08 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for residuals of a skull fracture, to include as secondary to a service-connected seizure disorder. 2. Entitlement to service connection for paraplegia, to include as secondary to a service-connected seizure disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from June 1960 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared at a Travel Board Hearing in April 2102 with an Acting Veterans Law Judge, who is no longer employed by the Board. The Veteran indicated that he does not wish to have another hearing, and a transcript of the 2012 hearing is associated with the claims file. In April 2013, the Board reopened the previously denied claims for entitlement to service connection for residuals of a skull fracture and for paraplegia based on the receipt of new and material evidence. The Board then remanded the underlying claims to the RO (via the Appeals Management Center (AMC)) for additional development. The matters have now returned to the Board after the completion of the instructed development. The entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. FINDINGS OF FACT 1. Resolving any doubt in the Veteran's favor, the evidence of record demonstrates that his service-connected seizure disorder played any etiological role in his loss of balance and fall from a pecan tree in 1969, which resulted in a skull fracture. 2. Resolving any doubt in the Veteran's favor, the evidence of record demonstrates that his service-connected seizure disorder played any etiological role in his loss of balance and fall from a pecan tree in 1969, which resulted in his paraplegia. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a skull fracture have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.309, 3.310 (2012). 2. The criteria for entitlement to service connection for paraplegia have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As alluded to above, in April 2013, the Board remanded these claims and ordered the RO/AMC to obtain copies of records pertaining to the Veteran's disability award from the Social Security Administration (SSA) and to obtain a VA medical opinion regarding any proximate etiology of the Veteran's claimed disorders to his service-connected disability. Pursuant to the Board's remand instructions, the Veteran's SSA disability records and a May 2013 VA medical opinion report were obtained and associated with the claims folder. The Veteran's claims were readjudicated via a July 2013 Supplemental Statement of the Case (SSOC). Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [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]. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, in view of the Board's favorable decisions to grant service connection for residuals of skull fracture and paraplegia as secondary to his service-connected seizure disorder, any further discussion as to any shortcomings in duties to assist and notify, or regarding whether the Veteran was prejudiced by any such lapses, would serve no useful purpose. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 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. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for residuals of skull fracture and paraplegia, both as secondary to his service-connected seizure disorder. The Veteran contends that he fell from a tree in November 1969 as a result of his service-connected seizure disorder, or, from the influence of medication (Dilantin) used to treat that disorder. The evidence establishes that a fall from a tree did occur at that time, and that paraplegia and a skull fracture occurred as a result of the fall. He does not contend, and the evidence does not suggest, a causal relationship between the current skull fracture residuals/paraplegia and military service. As noted above, in order to establish service connection on a secondary basis, the evidence of record must demonstrate: (1) a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. Here, the competent medical evidence of record clearly demonstrates that the Veteran has current residuals of skull fracture and he has paraplegia and he has been awarded service connection for seizure disorder since 1963. As such, elements (1) and (2) have been met. The remaining question on appeal is whether the evidence of record is at least in equipoise on a nexus between the Veteran's residuals of skull fracture and paraplegia and his service-connected seizure disorder. In other words, the evidence of record must at least be in equipoise on whether the Veteran's service-connected seizure disorder (including the medication to treat his disorder) proximately caused him to loss his balance and fall from the tree, which resulted in a skull fracture and paraplegia. VA treatment records dated in October 1969 shows that 37 days prior to the fall incident, the Veteran suffered a seizure that was thought to be related to marijuana use. Otherwise, the VA treatment records do not show that the Veteran had suffered a seizure in the previous two years. The Veteran reported to his VA treating physician at that time that he takes his medication "faithfully." On November 22, 1969, the Veteran was taken by ambulance to the Parkland Memorial Hospital, and he was treated on an emergency basis for injuries sustained from a fall. The hospital records note that the Veteran was an epileptic, who was on Dilantin and who had fallen from a tree and complained about inability to move his legs. He was described as lethargic and oriented with reactive pupils. None of the Parkland Memorial Hospital records indicates that the Veteran had a seizure at the time of his fall or that he had loss of consciousness. He was subsequently transferred to a VA Medical Center. The VA hospital admission record noted that Veteran was an epileptic and he was taking Dilantin and phenobarbital three times daily. It was also noted that following the fall, there was an immediate onset of flaccid paralysis with no loss of consciousness. A seizure was not reported at that time, despite a later treatment note that indicates that the Veteran was knocked out or unconscious. In 1971, the Veteran testified that he felt disoriented and seizure-like symptoms at the time of his fall, but he does not remember anything until he awoke later in the hospital. The record also contains depositions and statements dated in 1970 from two witnesses who report that they observed the Veteran just prior to his fall from the tree and just after his fall. Neither of the witness actually observed the Veteran fall from the tree, but they felt that they knew that the Veteran had had one of his "spells." Mrs. K.R. testified that just prior to his fall, the Veteran looked odd and "did act kind of funny... shaking his head, and it looked like when he looked down his eyes were going around." She further testified that after his fall, when the Veteran was on the ground, his eyes were open and still moving around, she described the Veteran as "in a daze" and he looked pale. The Veteran has submitted the police report of the November 1969 incident. The officer indicated that the Veteran was climbing a tree to knock down pecans, and that he was "drunk" when he suffered a fall. In his 2012 testimony presented to a former Acting Veterans Law Judge, the Veteran stated that he was not drunk at that time; however, he had consumed some smaller amount of alcohol (at least a couple of beers) at the time of the accident. Also, in support of his claim, the Veteran has submitted internet medical journals addressing side effects of Dilantin, a drug that was prescribed at the time of the accident. These internet articles state that the drug can have side-effects inclusive of cognitive impairment and loss of coordination. The Board had previously established in its 1971 decision that the Veteran "faithfully" took his medication for service-connected seizures. The record also contains two medical statements that touch and concern the etiology of the Veteran's fall from the tree. In a July 2011 letter, the Veteran's private physician stated that the Veteran's fall was a consequence of the seizure disorder, and somewhat confusingly, the private physician then noted that the Veteran should be examined to determine the likelihood of a relationship between his seizure disorder and the fall from a tree. The Board previously found that the 2011 private physician's report contains limited probative value due to lack of a supporting rationale statement. A May 2013 VA medical opinion was obtained, in which the VA examiner opined that it was at least as likely as not that the Veteran's condition were proximately caused by his service-connected seizure disorder. In support of this medical statement, the examiner only stated that the Veteran had no other condition present that would account for his current symptoms. Although both the 2011 private medical statement and the 2013 VA medical opinion contain some deficiencies that detract from the adequacy of those medical conclusions, each medical opinion does contain some probative value in support of a medical nexus between the Veteran's current disorders and his service-connected seizure disorder. With this finding, the evidence of record does support a conclusion that the Veteran's residuals of skull fracture and paraplegia are proximately due his service-connected seizure disorder. 38 C.F.R. § 3.310. Pertinently, there is no medical opinion to the contrary. In sum, the medical evidence shows that the Veteran has current residuals of skull fracture and he has paraplegia. He has also been awarded service-connection for seizure disorder since 1963. In addition, the evidence of record is at least in relative equipoise on whether the Veteran's current disorders were proximately caused by his service-connected seizure disorder. 38 C.F.R. § 3.310. Resolving all doubt in the Veteran's favor, the Board finds service connection is warranted for residuals of skull fracture and paraplegia. ORDER Entitlement to service connection for residuals of skull fracture is granted. Entitlement to service connection for paraplegia is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs