Citation Nr: 1335071 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-15 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a seizure disorder, to include epilepsy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sadia Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2005 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that rating action, the RO denied the Veteran's claim for service connection for a seizure disorder, including epilepsy, as it was determined that the Veteran's condition pre-existed service and was not permanently aggravated by service. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA). A review of the virtual file did not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran had a seizure disorder prior to service, which underwent an increase in severity during service. CONCLUSION OF LAW The criteria for service connection for a seizure disorder are met. 38 U.S.C.A. §§ 1101, 1110, 1111 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify As the Board's decision to grant service connection for a seizure disorder, to include epilepsy, herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and the implementing regulations. Service Connection 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). Certain chronic disabilities are presumed to have been incurred or aggravated in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. § 3.307, 3.309 (2013). 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) (West 2002); 38 C.F.R. § 3.303(a) (2013). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). To rebut the presumption of sound condition under 38 C.F.R. § 1111 (2013) for disorders not noted on the entrance or enlistment examination, VA must show clear and unmistakable evidence not only that the disease or injury existed prior to service, but also that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July, 16, 2003). The claimant is not required to show that the condition increased in severity in service before VA's duty under the second prong of the rebuttal standard attaches. By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). 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 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of a seizure disorder, which was not noted on his pre-enlistment examination report but reflected throughout the Veteran's service treatment records and post-service treatment records. Although admitting that he had 'spells' as a child, the Veteran has contended that he only experienced grand mal seizures during and after service as a result of service-related sleep deprivation and stress. See November 2010 NOD; June 2012 VA Form 9. The Veteran's pre-enlistment examination, dated May 2004, noted a normal neurological condition and the Veteran indicated on a contemporaneous self-report of medical history that he had no history of "dizziness or fainting spells" or "seizures, convulsions, epilepsy or fits." However, in September 2005, within one (1) month after entering service, the Veteran reported three (3) to four (4) incidents of "zoning out," and a reference to "spacing out" and possible childhood seizures appears in a July 2006 emergency department treatment record. The Veteran's service treatment records indicate that the Veteran experienced several seizures during service, specifically on June 2006, August 2006, February 2007, March 2007, and May 2007. A September 2007 medical evaluation board (MEB), made up of three physicians, determined that the Veteran's seizure disorder existed prior to service. They offered no conclusion regarding whether it was aggravated by service. A September 2007 physical evaluation board (PEB), chaired by an aviation officer, rather than a physician, concluded that the Veteran's seizure disorder existed prior to service and was not permanently aggravated by service; as a result, the Veteran was medically discharged from service. The Veteran continued to experience seizures after service, as indicated by his post-service treatment records, including seizures on January 2008, August 2008, August 2009, April 2010, and June 2010. The Veteran, in an April 2010 VA treatment record, stated that he experienced six (6) seizures during that month. The Veteran has contended that the rigors of military service either resulted in a new seizure disorder or aggravated the complex partial seizures he experienced as a child and caused him to "develop" grand mal seizures. See June 2012 VA Form 9; August 2013 Informal Hearing Presentation. Although the August 2007 medical opinion, on which the MEB's determination was based, noted that the Veteran had been prescribed Tegretol in the past, the Veteran contended that the medication was prescribed for treatment of behavioral problems and that he only used the medication in childhood. The report acknowledges that he was not prescribed an anti-seizure medication as a teenager or when he entered service. Here, although the medical and lay evidence supports the conclusion a seizure disorder existed prior to service, it manifestly increased in severity during service. The Veteran went from having no seizures as a teen to at least 5 during service. That this increase was of a permanent nature is attested to by the number of seizures documented post service. Thus, the service treatment records clearly show multiple in-service seizures and post-service treatment records clearly show that such seizures have been chronic thereafter. This evidence satisfactorily provides a basis upon which to establish service connection for a seizure disorder. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a seizure disorder, to include epilepsy, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs