Citation Nr: 1332527 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-21 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service from August 1962 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT Epilepsy had its onset in service. CONCLUSION OF LAW Epilepsy was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for epilepsy. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary for this claim only. The Veteran seeks service connection for a seizure disorder, which he reports is due to a head injury he sustained during his military service. Specifically, the Veteran states that in July 1964 he was struck on the forehead while cleaning out a tank. He claims to have lost consciousness and that he had a laceration on his head. 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, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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 that of which he or she has personal knowledge). 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). 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). Indeed, 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 that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). 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). The evidence reflects that the Veteran has epilepsy. The evidence shows the Veteran first presented with seizures in November 2004. Thereafter, private treatment records confirm a diagnosis of epilepsy. The December 2008 VA examiner provided a diagnosis of complex partial seizure disorder. The Veteran's service treatment records show he sustained a laceration to the forehead in July 1964. There is no indication that the Veteran lost consciousness. Further, these records do not show how the Veteran received the laceration to his head. There were no additional references to the July 1964 laceration. Following service, the Veteran initially sought treatment in November 2004 for a seizure. He has continued to receive private and VA treatment for seizures since that time. However, the only treatment record, either VA or private, that contains an etiological opinion is an October 2008 private record from Dr. Padua. The October 2008 treatment record from Dr. Padua determined that, as to the etiology of the Veteran's epilepsy, the late onset of seizures makes it unlikely that they are related to a congenital or inherited condition. She further stated that MRI testing shows no evidence of stroke or tumor; he has no history of febrile seizures, or a central nervous system (CNS) infection; and, no family history of epilepsy. Dr. Padua also noted the Veteran's in-service injury in 1964 and concluded that the history and localization of his seizure focus to the left temporal lobe made it likely that he has post-traumatic epilepsy caused by the in-service head injury. The Veteran was afforded a VA examination in December 2008. The examination report shows that the examiner opined that it is not at least as likely as not that his seizure disorder was related to service because of the remote history that the forehead laceration was the result 40 years later of the Veteran's seizure disorder. In support, the examiner acknowledged the in-service treatment for the laceration to the forehead but noted that there was no documentation as to unconsciousness and that it is likely that such a thing would have been mentioned at the time the Veteran was treated. As such, whether the laceration was trivial or a more serious injury is not supported by the claims file information. The Board accords more probative weight to the October 2008 favorable opinion provided by Dr. Padua than the December 2008 VA examination. Dr. Padua provided a reasoned medical explanation for why the Veteran's epilepsy is attributable to his military service, while also excluding other possible causes. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, the Board finds the December 2008 VA examiner's opinion to be inadequate. Specifically, in rendering this unfavorable opinion, the VA examiner noted the in-service laceration, but also pointed to the lack of in-service documentation to support the Veteran's claimed unconsciousness. The Board finds that this is not sufficient rationale to support her findings. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Board notes the Veteran is competent to report the onset of his seizures. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). See also 38 C.F.R. § 3.159(a)(1) versus (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is no reason to doubt the credibility of his statements as the fact he sustained a laceration to the head is document in his service treatment records and, therefore, supported by the evidence of record. Moreover, the private physician, citing to the evidence of record, offered a cogent rationale in support of her impression that the Veteran's epilepsy was related to service. Therefore, service connection for a seizure disorder is warranted. ORDER Service connection for epilepsy is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs