Citation Nr: 1337682 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-24 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was scheduled for a hearing before a member of the Board in September 2012. He failed to appear at the hearing, did not request postponement, and has not shown good cause for failure to appear. Hence, the case is processed as if the request for a hearing had been withdrawn. See 38 C.F.R. § 20.702(d) (2013). The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT A seizure disorder was not shown in service or many years thereafter; and, the competent and credible evidence fails to establish that the Veteran's current seizure disorder is related to his active service. CONCLUSION OF LAW The criteria for service connection for a seizure disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as epilepsies, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 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 if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); epilepsies (certain types of seizure disorders) are qualifying chronic diseases/disabilities. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that his seizure disorder is related to active duty. In his July 2009 substantive appeal, he states that the personality disorder with which he was diagnosed in service (dissociative reaction disorder) was "incorrect" and should have been identified as a seizure disorder. Moreover, in an August 2007 statement, he maintained that he started having grand mal seizures upon his return from service. The Veteran has been diagnosed with a seizure disorder. This point is not at issue. The first element of the Shedden/Caluza analysis is met. Next, on the question of an in-service injury or disease, service treatment records do not show complaints, treatment, or diagnoses of a seizure disorder. Moreover, in a February 1968 report of medical history, the Veteran specifically denied epilepsy or fits. The June 1969 separation examination also did not contain a finding of a seizure disorder. Further, despite his more recent allegations of suffering multiple head injuries in-service, to include being beaten in a fight, there is no evidence that the Veteran was ever treated for any type of head injury in service. Therefore, service treatment records provide factual evidence against this claim. In addition, in May 1969, the Veteran was examined by a Medical Board for evaluation of his April 1969 diagnosis of dissociative reaction disorder. The Medical Board concluded that the Veteran had a personality disorder associated with somnambulism that was of sufficient severity to make him unsuitable for duty. (He is presently service connected for an acquired psychiatric disorder). An additional diagnosis of Osgood-Schlatter Disease was made, but found not to be disqualifying. The history taken from made no reference to any type of in-service head injury. Therefore, the Medical Board's findings do not show an in-service occurrence of a seizure disorder. As a result, the Medical Board evaluation does not support the Veteran's claim that he had a seizure disorder during service. Following service, the evidentiary record shows no complaints, diagnosis or treatment for seizures until 1993, over twenty years after separation. At that time, an MRI from North Carolina Hospital showed "right maxillary sinusitis, otherwise normal cranial MRI." A negative CT scan was also reported. The Veteran indicated that his first seizure occurred four or five years prior to the 1993 treatment. He also reported that he was hit in the head with a bottle in approximately 1990. The Veteran was diagnosed with, among other conditions, seizures and Dilantin toxicity. Thus, the 1993 records provide the first post-service diagnosis of a seizure disorder, and the Veteran himself stated that he had started having seizures, at the earliest, in 1988, providing more evidence against the Veteran's claim that he has had seizures since returning from deployment in 1969. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). More recent medical records from October 2008 through April 2010 from the Durham VA Medical Center (VAMC) document continued treatment of seizures. For example, a September 2009 entry indicates that the Veteran had seizures, despite being on medication, and that there was previous head trauma. In addition, treatment notes from January 2009 include statements from the Veteran's girlfriend, who observed the Veteran's seizure. Therefore, VA records provide information regarding the severity and frequency of seizures as well as the Veteran's response to his seizure medications. There is no evidence linking the Veteran's seizures to service. These records instead tend to provide evidence as to the existence of the Veteran's disability, which is not at issue, rather than providing a nexus to an in-service occurrence or establishing that the Veteran has had seizures since service. Similarly, the evidentiary record includes statements from January 2009 and January 2008 from "M.H, L.P.N" that describe the Veteran's seizure symptoms. M.H. indicated that the Veteran's seizures seem to be facilitated by stressful events and stated, in 2008, that she knew the Veteran for approximately three years. Thus, these statements do not offer a link to service and only provide a history of symptoms since no earlier than 2005. Again, because the Veteran's current disability is not in question in this case, the statements by M.H. have little probative value. After a full review of the evidentiary record, the Board finds that the Veteran's currently diagnosed seizure disorder is not related to active service and has not been continuous since service separation. The Veteran's service treatment records do not contain any complaints or findings of a seizure disorder. The Veteran's separation examination did not identify a seizure disorder, and the Veteran himself denied epilepsy or fits, providing highly probative factual evidence against his own claim. Instead, the record shows that the Veteran was not diagnosed with a seizure disorder until 1993, over twenty years after service separation. Such a prolonged period without medical complaint after service can be considered, among other factors, in the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Consideration has been given to the Veteran's assertion that his in-service diagnosis of a dissociative disorder represented a misdiagnosis. He argues that the symptoms of his "dissociative disorder" were actually the initial symptoms of his current seizure disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a seizure disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Epilepsies and/or seizure disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that diagnostic testing and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). There is simply no indication that the Veteran is competent to etiologically link his in-service psychiatric symptoms to his seizure disorder, diagnosed several years after his discharge. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating seizure disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Moreover, the Board finds that the Veteran's more recently-reported history of continued symptoms of a seizure disorder since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, the more contemporaneous medical history he gave at the separation examination, he denied any history of epilepsy or fits. Moreover, the separation examination did not include any finding of a seizure disorder. The Veteran's in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In addition, when the Veteran sought to establish medical care with North Carolina Hospital after service in 1993, he did not report the onset of seizure symptoms soon after service or even indicate that the symptoms were of longstanding duration. Instead, he indicated he had his first seizure just four or five years prior to 1993. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Again, the Veteran himself has provided evidence against his own claim. This evidence also weighs against an argument of continuity of symptomatology. The only evidence of record supporting the Veteran's claim is his own opinion that his currently diagnosed seizure disorder is related to his active service. Again, he is competent to give evidence about observable symptoms, such as experiencing seizures. However, the Veteran is not competent, in this instance, to opine that his seizure disorder is related to his service as such an opinion involves a complex medical question that requires medical training and expertise that the Veteran has not demonstrated. Finally, the Board also notes that even if the Veteran's seizure disorder was construed as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 because of the relationship between seizures and epilepsy (which is listed as a chronic disease in 38 C.F.R. § 3.309), there is no medical or lay evidence of any seizures or related symptoms arising within one year subsequent to service discharge. Thus, the presumptive provisions found in 38 C.F.R. §§ 3.307 and 3.309 are not applicable. Therefore, for the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for a seizure disorder, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA must inform the claimant of any information and 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 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. In the present appeal, the VCAA duty to notify was satisfied by a November 2008 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letter also included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has not obtained a medical opinion with regard to this claim. However, as explained above, there is no competent and credible evidence that the Veteran had a seizure disorder during service. Instead, the evidence shows the Veteran's seizure disorder did not begin until over twenty years after his discharge. The Board recognizes that the third prong of McLendon, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. However, in the present appeal, despite the November 2008 VCAA notice, the Veteran has not provided nor does the evidence of record indicate that the Veteran's seizure disorder is related to any in-service injury or event. Hence, the Board is not required to have the Veteran undergo a VA compensation examination for a medical nexus opinion. Id. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the Veteran and his representative, VA treatment records, and private medical records. The Board notes that the Veteran is in receipt of benefits from the Social Security Administration (SSA). However, in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records, rejecting the appellant's argument that SSA records are always relevant and VA always is required to obtain them. The Federal Circuit then defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In this case, there is no reasonable possibility that treatment records used to support the Veteran's SSA claim, which the Veteran stated he filed in May 1993, would shed light on the element of an in-service occurrence or a nexus between the Veteran's active service and a seizure disorder. The Veteran, as well as the medical evidence of record, indicates that his seizures began after service separation. Therefore, a remand is not necessary to seek any treatment records. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In conclusion, the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's 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). ORDER Service connection for a seizure disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs