Citation Nr: 1328162 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-27 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for epilepsy, to include grand mal seizures. REPRESENTATION Appellant represented by: Michael J. Kelley, Attorney WITNESS AT HEARING ON APPEAL Attorney ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the Veteran's claim for service connection for grand mal seizures. In May 2010, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO). In August 2011, the Veteran's attorney testified on his behalf at a travel board hearing at the RO. Transcripts of the hearings have been associated with the claims file. FINDING OF FACT The Veteran's epilepsy, to include grand mal seizures, had its onset in service. CONCLUSION OF LAW Epilepsy, to include grand mal seizures, was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for epilepsy, to include grand mal seizures, which represents a complete grant of that benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. The Veteran contends that his diagnosed epileptic seizures warrant service connection on a presumptive basis pursuant to 38 C.F.R. §§ 3.307, 3.309 (2012), as he experienced and was treated for a seizure in November 1990-within the one year presumptive period of his January 1990 separation from service. Based on the evidence of record, the Board concurs. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). 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 v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). First, the Veteran has a diagnosis of epilepsy from a VA clinician dated February 2010-during the pendency of the claim. Moreover, the Veteran's VA treatment records show ongoing treatment for his seizure disorder. Second, as the Veteran's attorney rightly asserted, epilepsy is a disease subject to presumptive service connection under 38 C.F.R. §§ 3.307, 3.309 (2012). Under 38 C.F.R. § 3.307(a)(3), the disease must have become manifest to a degree of 10 percent or more within one year of the date of separation from service. The Veteran's DD Form 214 shows that he separated from service in January 1990. The evidence further establishes that he experienced a seizure on Thanksgiving Day in November 1990. Specifically, he has submitted signed statements from three eyewitnesses to his November 1990 seizure; a billing document from Kent County Memorial Hospital bearing his name and showing that he was admitted on that day; and a March 1991 record of treatment for a seizure from Rhode Island Hospital, including reference to a history of a seizure in November 1990. The Board finds the reference to a November 1990 seizure in the Veteran's March 1991 treatment record highly credible. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Based on the foregoing, and in the absence of any evidence to the contrary, the Board finds that the Veteran's epilepsy, to include grand mal seizures, qualifies for service connection on a presumptive basis. The Board has considered the May 2010 VA examination and the physician's negative nexus opinion therein. Essentially, the examiner determined that "despite the fact that as a child he did not have frank seizures...his epileptiform events precede his service." The examiner further found that "it is less likely than not at this time that the patient's seizures are related to military events." While the Board appreciates the VA examiner's medical analysis, his legal analysis is misplaced. Specifically, as the Veteran's attorney rightly stated in August 2011, service connection on a presumptive basis does not require that a specific event in service caused the epilepsy; rather, it is sufficient that the Veteran manifest epilepsy to a degree of 10 percent or more within one year of the date of separation from service, as occurred here based on the Veteran's documented November 1990 seizure. 38 C.F.R. §§ 3.307, 3.309 (2012). Further, the fact that the Veteran's epilepsy pre-existed service does not preclude reliance on presumptive service connection for a chronic disease. Rather, consideration of the presumptive period is to be given both to conditions that pre-dated the veteran's entry into service, and to those that were first diagnosed subsequent to service separation. See Splane v. West, 216 F.3d 1058, 1067- 69 (Fed. Cir. 2000) (holding that the presumptions set out in 38 U.S.C.A. § 1112 apply to pre-service disabilities, as well as to disabilities first manifested after service and invalidating that part of VAOPGCPREC that held that Congress intended to include pre-existing conditions in the presumption of in-service occurrence). Id. at 1068-69. In light of the foregoing, the Board finds that the Veteran has a current diagnosis of epilepsy, to include grand mal seizures, and that his epilepsy manifested to a qualifying degree in November 1990-within one year of his January 1990 separation from service. The Board thus finds that the criteria for service connection for epilepsy, to include grand mal seizures, on a presumptive basis are met, and that service connection is warranted. ORDER Service connection for epilepsy, to include grand mal seizures, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs