Citation Nr: 1336916 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-31 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include a seizure disorder/epilepsy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1983 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied the above issues. The Veteran timely appealed those issues. Initially, in his September 2007 substantive appeal, VA Form 9, the Veteran indicated that he wished to have a hearing before the Board. However, in a January 2008 correspondence, the Veteran withdrew that request for a hearing before the Board. The Veteran has not reasserted his desire for a hearing before the Board since January 2008. This case was initially before the Board in September 2011, when it was remanded for further development. The case was returned to the Board in July 2013, when it was again remanded for further development. That development having been completed, it has been returned to the Board at this time for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Chronic residuals of TBI, to include a seizure disorder/epilepsy did not have their clinical onset in service and are not otherwise related to active duty; a seizure disorder/epilepsy was not exhibited within the first post service year. 2. The Veteran is not service connected for any disability. CONCLUSIONS OF LAW 1. The criteria establishing service connection for residuals of a TBI, to include a seizure disorder/epilepsy, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria establishing entitlement for TDIU have not been not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in April 2006 that provided information as to what evidence was required to substantiate the claims for service connection and entitlement to TDIU herein decided and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims herein decided. This case was the subject of a July 2013 Board remand, which instructed that the VA treatment records Elkins and Morgantown be obtained. The Board notes that it misunderstood the Veteran's statements, and notes that those two medical facilities are actually West Virginia University Medical Center in Morgantown, West Virginia and Davis Memorial Hospital in Elkins, West Virginia-private, not VA facilities. The Veteran has submitted the records from those two facilities. The Board additionally notes that the most recent VA treatment records from the Gainesville, Clarksburg and Pittsburgh VA Medical Centers were obtained and associated with the claims file; those treatment records range from March 2006 through September 2013. The Veteran also submitted records from Wakulla Urgent Care Clinic dated in 2011-2012. The Board finds that VA has completed its duty to assist with respect to those records. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Claim for Residuals of a TBI Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 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, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that 38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and epilepsies becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). On appeal, the Veteran claims that he has a seizure disorder/epilepsy as a result of a head injury, or multiple head injuries, he sustained in military service, most notably in 1984. He additionally argues that he had symptoms of his seizure disorder throughout service and after discharge from service, which were repeatedly misdiagnosed at the time, but were in fact symptoms of his eventual seizure disorder. He references having to give up Pepsi in several of his statements as demonstrable evidence that he had seizure symptoms in military service. Review of the Veteran's service treatment records indicates that the Veteran's head was normal on enlistment in December 1983, as was his neurological functioning; he denied any "epilepsy or fits" at that time. In December 1983, the Veteran complained of nausea, vomiting and dizziness, which was associated with an upper respiratory infection/viral syndrome. In January 1984, the Veteran was again shown to have complaints of dizziness and other cold/flu-like symptoms which were again associated with a viral syndrome. In February 1984, the Veteran was again seen for viral symptoms, as well as back pain; it was noted at that time that the Veteran had hit his mid-back on a rock 3 weeks prior. No head injury or other neurological impairments due to a head injury were reported at that time. In May 1984, the Veteran is shown to have received emergency medical care, to include an ambulance transport, due to falling off the top a truck while tying down straps. The Veteran complained of lumbar spine and neck pain at that time; there was no report of any head injury or loss of consciousness at that time. Cervical spine x-rays were obtained at that time which noted that the Veteran was complaining of pain at the C-3 secondary to an 8 foot fall; no abnormalities were shown at that time. Approximately a month and a half later, in June 1984, the Veteran was seen for a contusion of the lower back due to "being caught between a truck and tractor." It does not appear that the Veteran fell in June 1984, and there is no report of any head injury or loss of consciousness at that time. In 1987, several treatment records document right quadrant and abdominal pain, most likely due to a virus, though it additionally was thought to be related to a parasite. The Veteran was told to stop intake of Pepsi in those records. In early March 1988, the Veteran complained of muscle cramps, dizziness and dehydration 24 hours after running a marathon. The Veteran was diagnosed with dehydration and given an IV at that time. Later in March 1988, the Veteran sought treatment at that time for vomiting, diarrhea, stomach cramps and lightheadedness. He was diagnosed with viral gastroenteritis at that time. It was noted that there was no association with head trauma times 72 hours. Following discharge from service, in April 1989, the Veteran underwent a VA examination for his lower back, knee and throat conditions. The neurological functioning was noted as "not remarkable" and the Veteran did not complain of residuals of head trauma, seizures or seizure-like activity in this examination. The Veteran filed his claim for service connection for residuals of a TBI to include a seizure disorder/epilepsy in March 2006. The Board has extensively reviewed the Veteran's VA treatment records, particularly those beginning in 2006. In March 2006, the Veteran initially sought treatment at VA due to possibly being diabetic. He reported no head injuries or seizures at that time; however, he also reported that he had "3 spells of passing out" on February 24, March 1, and March 2, 2006. He felt dizzy/lightheaded first, and it usually occurred 1-2 hours after eating. He reported being under financial stress and being unemployed. He was diagnosed with probable seizures and informed he was no longer able to drive until he was seizure free for 6 months. The Veteran submitted a March 29, 2006 letter from a VA physician which stated that he "apparently [had] a seizure disorder." He was prescribed Dilantin and was to have a CT scan and an electroencephalogram (EEG) in April 2006. The Veteran underwent a neurology consultation on July 20, 2006, which noted that the Veteran's long-term EEG was normal in the face of a variety of symptoms reported by the Veteran; he did not, however, have an episode of loss of consciousness. The VA neurologist at that time felt that the Veteran's reported symptoms did not represent seizures or other neurological disturbances, but rather that they were psychogenic in origin and were better classified as a conversion disorder, as noted by the psychiatric consultations and psychiatry notes. Later in July 2006, the Veteran was admitted to the VA hospital as an inpatient for 4 days. During that hospitalization, the Veteran underwent a history and physical (H&P) examination on June 29, 2006, during which the Veteran gave the following history: The patient states he enjoyed good health and was on no medications until February 24, 2006 when he "passed out" while sitting on his back porch smoking a cigarette. The patient states he had no presyncopal symptoms, he awakened some minutes lying on his back porch with contusion to his right forehead and right periorbital area with swelling around the right eye. The patient states he was "confused and disoriented for about an hour" and felt "weak and exhausted." There was no postictal paralysis. The patient does not remember tongue biting or urine incontinence. The patient did not call 911 or seek medical attention. On 03/01/06 and 03/02/06, the patient had similar syncopal episodes on one occasion while sitting at the dinner table with his 15-year-old son. The son witnessed another syncopal episode and described "shaking in the arms and legs." The patient again remembers postictal confusion and on one occasion urine incontinence. The patient presented to Tallahassee Veterans Outpatient Clinic on 03/09/06 and was seen by the physician assistant. Dilantin 300 mg was initiated and subsequently increased to 600 mg daily for monitoring Dilantin levels. However, the patient continued to have major motor seizures and partial seizures, but would not call 911 or seek medical attention at the local emergency rooms. The physician assistant added Depakote 500 mg b.i.d. and subsequently increased to t.i.d., however, the patient continued with major motor seizures averaging one every four to five days with more than 10 partial seizures daily. CT of the head without contrast on 04/18/2006 showed bilateral frontoparietal hypodense area suspicious for infarction of uncertain age, more prominent on the right side. The patient subsequently had magnetic resonance imaging of the brain without contrast on 05/26/2006, which showed multiple hyperintense foci in the corticomedullary junctions bilaterally. "This may be due to possible vasculitis, demyelinating disorder such as multiple sclerosis, sclerosis should also be considered. This does not have typical appearance of infarct or infection." The patient was referred to this physician for further evaluation and treatment. The patient denies a previous history of seizure disorder, and denies illicit drug use. HIV antibody negative, RPR nonreactive, ANA negative, sed rate within normal limits, CBC and CMP within normal limits and therapeutic Dilantin level. Several other psychiatric consultation entries give a similar history with regards to the Veteran's onset of his seizure disorder; of note, all his reports of medical history at this time are in agreement that he did not have any seizure-like symptoms prior to February 24, 2006. The Board notes that the Veteran is continued to be treated by the VA throughout the appeal period, wherein he consistently reports that he believes his seizure disorder is the result of his 1984 head injury while in service. In March 2007, the Veteran is seen by a private physician, Dr. R.A., who diagnoses the Veteran with a seizure disorder and intractable epilepsy. The Veteran underwent a VA examination of his seizures in November 2011. In that examination, the VA examiner notes that the Veteran was diagnosed, per his report in 2005 or 2006, with tonic-clonic or grand mal seizures (generalized convulsive seizures), as well as "other convulsions" as of 2006 per the records in the claims file. During that examination, the Veteran stated Shortly after the fall injury in June-July 1984, [he] believed [his] seizure disorder started and was not diagnosed until 2005-6. In 2005-6, [he] started enduring grand mal seizures, was evaluated and since then [has been] on seizure [medications]; last grand mal seizure was in October 2010. Typical grand mal seizure has an aura [that] starts with a funny feeling, disorient[ation] followed by tonic-clonic seizure for 2-3 minutes followed by bladder and bowel incontinence and confusion for hours. The minor seizures are variable and hard to explain. [He] now know[s] the trigger and tries to avoid them, [which] is helping. Regarding minor seizures, [he felt] like getting lost, difficulty focusing, [and] makes no sense for a few seconds to a minute. [His] son [has reported seeing] them happening at night in [his] sleep[; and, he] was told by him and others [that he has] teeth grinding, random shaking of arm/hand or body shaking. When [awaken] from sleep, [he is] alert and fine. [His seizures] are the same as seen in the video monitoring done in July 2006. The Veteran was taking medications for his seizure activities at that time. The examiner additionally noted the July 2006 EEG and long-term video monitoring EEG results, as well as neuropsychiatric testing from October 2006; all of which are in the claims file. After examination, the Veteran was diagnosed with "Idiopathic generalized tonic-clonic epilepsy" and "non-epileptic seizures." The examiner concluded that the Veteran's two epileptic and non-epileptic seizure diagnoses were not caused by or a result of military service, "to specifically include the in-service fall from on top of a truck in May 1984 and other incidents of in-service head wounds as described by the Veteran." He noted that this conclusion was based on review of the claims file, medical literature and clinical experience. He elaborated by saying that many years after discharge from service, in 2006 the Veteran was diagnosed with his two seizures disorders, noted above. He noted the work-up for seizures included a June 2006 brain CT scan which showed "incidental findings of small extraaxial lesion anterior to the left pontomedullary junction which appears to contain components of both blood and fat. This lesion may represent a hemangiolipoma." He concluded that this was not the reason for the Veteran's claimed seizures. Moreover, he noted that the Veteran's uncontrolled seizures noted in the two EEG's from July 2006 were the non-epileptic seizures described by his diagnosis. He stated that there was no objective evidence of their onset in military service or shortly after discharge from service. "There is no available medical literature to support cause-effect relationship and aggravation, if any, between the claimed conditions and the Veteran's military service-to specifically include the in-service fall from on top of a truck in May 1984, and other incidents of in-service head wounds as described by the Veteran in the claims file and/or mentioned in this report." The Board additionally notes that in October 2012, the Veteran was seen at Davis Memorial Hospital in Elkins, West Virginia for an epileptic seizure. A CT scan of his brain shown no abnormalities on an unenhanced CT of the brain. He was transferred to West Virginia University in Morgantown, West Virginia at that time for continued treatment. In an October 2012 History and Physical examination, the Veteran reported a history of seizures since 2006, which the Veteran said was probably from [a] head injury in 1984 when he was in [the] military and was hit in the back of the head. At that time, he did not have this evaluated. He gets spells of staring, and at times tonic-clonic seizures even daily. His tonic-clonic are associated with urinary incontinence and cheek, lip biting, not tongue. The Veteran is noted as being an unreliable historian by this examiner. He is diagnosed with "history of seizure disorder, breakthrough seizure." On the discharge summary dated October 28, 2012, the history and physical part is reiterated. The discharge summary goes on to state that [The Veteran] had recently lost his house in [a] hurricane storm in Florida, has been distressed about that recently. It's possible he has epileptic seizures however it's also likely that he tends to have non-epileptic seizures. There was no infectious etiology found. Stress could have been trigger for breakthrough seizures. . . . EEG completed here was negative for any epileptiform discharges. Eventually, the Veteran reestablished care with VA after moving to West Virginia in 2012, following his discharge from West Virginia University. Those records show continued treatment for a seizure disorder, including provision of seizure medications. The Veteran's reports that his seizures are the result of a 1984 head injury are also documented in those treatment records; he continues to assert that he has grand mal seizures and staring spells. The Veteran has submitted several different generic articles from journals, newspapers, or the internet, which demonstrate a correlation between epilepsy/seizures and a head injury, as well as that he used to be an "ultra-marathoner." In October 2013, he submitted private medical reports dated in 2011 and 2012 reflecting treatment for epilepsy. The Veteran's Social Security Administration records have also been reviewed, but those records are duplicates of the private and VA treatment records described above. Based on the foregoing evidence, the Board finds that service connection for residuals of a TBI, to include a seizure disorder/epilepsy, is not warranted on the evidence of record. There are various diagnoses of epileptic and non-epileptic seizure disability. Presumptive service connection would potentially be a relevant theory in this case, however, there is no evidence of any seizure activity during military service, or any other noted residual of TBI. All of the evidence in this case demonstrates that the Veteran's first seizure activity began in 2005 or 2006, many years after military service. In fact, the April 1989 VA examination which occurred within a year of military service does not document any complaints of or diagnosis of any seizure or other epileptic disorder. Accordingly, the Board finds that service connection for residuals of a TBI, to include a seizure disorder/epilepsy, is not warranted on a presumptive basis in this case. See 38 C.F.R. §§ 3.307, 3.309. However, the Board will proceed to analyze the Veteran's claim under other service connection principles in this case. See Combee v. Principi, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Turning to the second element of service connection-in-service injury-the Board notes that the Veteran is never shown to have a head injury during military service. The Board acknowledges the Veteran's various reports of dizziness during military service; however, those instances of dizziness are associated with viral syndromes, and not a head injury. Moreover, insofar as the Veteran asserts that he had right quadrant pain and that such represents evidence of "seizure activity," the Veteran is not competent to make such assertions that those represent symptoms of his seizure disorder in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Additionally, the Board notes that such right abdominal pain-which appears by the records to be exacerbated by the Veteran's intake of Pepsi during service-was associated with viral gastroenteritis, and not a head injury or any seizure disorder during military service. Furthermore, the Board notes that there is no competent evidence, including the generic internet articles, etc. submitted by the Veteran, that associates right quadrant pain or other gastrointestinal dysfunction as a symptom/residual of a head injury. Thus, the Board concludes that there is no evidence of record which relates disability exhibited by seizures to any seizure disorder in service; instead, the evidence of record, including the Veteran's own statements in 2006 prior to filing for benefits, demonstrates that his seizure activity did not begin until 2005-2006. Service treatment records reflect treatment for back and neck injuries, including an incident when the Veteran fell 8 feet from a truck in May 1984. The Veteran has asserted that he landed on his back and shoulder and received whiplash from this fall. The Board notes that there was no head injury or loss of consciousness reported during the treatment for that fall, nor does he subsequently report or seek treatment for any "whiplash," headaches, concussion, or any other head injury during military service. Other complaints of back and neck problems in service did not include any mention of head trauma. It is not until 2006, after he has filed his service connection claim, that the Veteran asserts a head injury in service. The Board also additionally notes that the Veteran's first reports in the VA treatment records contradict his assertions that he injured his head in service. His March 2006 VA treatment record demonstrates that he initially denied any history of head injuries or seizures. Again, it is not until after he has filed his claim for service connection that the Veteran reports a head injury due to a fall from a truck in 1984. In short, the contemporaneous medical records do not at all demonstrate that the Veteran sustained significant head trauma in service, and it is only the Veteran's post-benefits-seeking statements that aver any head injury during service. The contemporaneous statements given for treatment purposes outweigh the more recent statements given in the context of seeking compensation. The Board therefore does not find the Veteran's statements credible that he had significant head injury during military service. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (when determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and demeanor of witness (if hearing held)); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible; however, as a fact finder, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1197) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). With regards to the nexus requirement, the Board notes that such requirement is not abrogated in this case by the Veteran's lay evidence of continuity of symptomatology. The Board acknowledges that the Veteran has indicated that he has seizure activity during military service and that it has occurred since that time. Again, the Board finds that this evidence is not credible. As noted above, the service treatment records do not demonstrate any evidence of seizure or any other residual TBI symptomatology. The evidence of record, including the Veteran's own statements, is clear that his first seizure activity is noted as beginning on February 24, 2006-many years after military service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Consequently, the Veteran argues that various symptoms in service, such as right quadrant/abdominal pain due to intake of too much Pepsi, were misdiagnoses of his seizure disorder in service. Again, as discussed above, the Board finds that the Veteran is not competent to make such assertions and there is no competent evidence of record which demonstrates that these alleged "symptoms" in service were, in fact, seizure disorder symptoms. See Jandreau, supra; Jones, supra. Insofar as the Veteran's statements to various VA and private treatment providers that his seizure disorder "was probably the result of a 1984 head injury" in service, the Board finds that such is not a medical conclusion by any of those providers, but rather are merely restatements of the Veteran's noncompetent beliefs and medical conclusions and do not represent a medical opinion. Instead, those statements are merely recitations of the Veteran's past medical history, and such recitations are not transformed into medical opinions, merely because the transcriber of that past medical history are medical professionals. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). None of those medical professionals address the issue of a possible etiology of the Veteran's seizure disorder, other than to note the Veteran's own self-stated belief of causation; therefore, there is no competent evidence to discuss regarding those statements at this time. Consequently, the sole competent evidence left with respect to a nexus is the November 2011 VA examiner's opinion. That examiner concluded that, after reviewing the entire claims file, the Veteran's seizure disorder, including both epileptic and non-epileptic episodes, was not due to or related to the Veteran's military service. The Board relies on this opinion in finding that the evidence of record does not demonstrate a link between his seizure disorder and military service. Accordingly, the Board finds that service connection for residuals of a TBI, to include a seizure disorder/epilepsy, must be denied on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. In reaching the above conclusions, 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, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Claim of Entitlement to TDIU VA will award a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). A TDIU for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). In light of the Board's denial, discussed above, of the claim for service connection for residuals of a TBI, to include a seizure disorder/epilepsy, the Board notes that the Veteran is not currently service connected for any disabilities as of the writing of this Board decision. As the Veteran currently has no service-connected disabilities, the Veteran's claim for TDIU must be denied as a matter of law in this case, as no service-connected disability serves as a predicate for an award of TDIU given that no service-connected disability exists. As the law is dispositive of the Veteran's claim for TDIU benefits, the claim must be denied for lack of legal merit. See 38 C.F.R. § 4.16(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for residuals of a TBI, to include a seizure disorder/epilepsy, is denied. Entitlement to TDIU is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs