Citation Nr: 1509786	
Decision Date: 03/09/15    Archive Date: 03/17/15

DOCKET NO.  05-35 645A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a seizure disorder.


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Esquire


WITNESSES AT HEARING ON APPEAL

Appellant and appellant's spouse


ATTORNEY FOR THE BOARD

Dustin Ware, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1952 to December 1961 with periods of active duty for training (ACDUTRA) from July 25, 1981 to August 8, 1981 and from August 8, 1990 to August 24, 1990.  The Veteran also served additional periods of Reserves service. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  Jurisdiction over the claims file is currently held by the RO in St. Petersburg, Florida. 

In June 2007, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge at the St. Petersburg RO.  A transcript of the hearing is of record.

This case was previously before the Board in October 2007, at which time the claim for service connection for a seizure disorder was reopened and remanded for additional development.  The case then returned to the Board in September 2009 and the claim for service connection for a seizure disorder was denied.  The Veteran appealed the Board's September 2009 denial of the claim to the United States Court of Appeals for Veterans Claims (Court).  In May 2010, the Court granted a Joint Motion for Remand (JMR), vacating the Board's September 2009 denial.  The appeal was returned to the Board and in December 2010 the Board again denied the claim.  The Veteran appealed the December 2010 denial of his claim to the Court and another JMR was granted in May 2011.  The claim for service connection was again remanded by the Board in October 2011, January 2013, and February 2014.  The claim has now returned to the Board for further appellate action. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDING OF FACT

The Veteran's seizure disorder is etiologically related to active service.


CONCLUSION OF LAW

A seizure disorder was incurred in active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Since the claim addressed below has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014).  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Analysis

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

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.  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.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

The Veteran assets entitlement to service connection for a seizure disorder as directly related to in-service participation in boxing and an explosion that occurred on a ship.

While service treatment records reflect complaints of fainting spells, dizziness, and headaches there are no complaints of seizures, or any other neurological disorder, during service.  Furthermore, the Board notes a November 1961 Report of Medical Examination, completed upon the Veteran's separation from active service, indicates a normal neurologic clinical evaluation.  As such, the Board finds the Veteran did not suffer from a seizure disorder during service.

Nevertheless, when a disability is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service.  38 C.F.R. § 3.303(d).  In the May 2011 JMR, VA conceded that the Veteran had a current diagnosis of a seizure disorder.  Additionally, the Board finds credible the Veteran's assertions that he suffered in-service head trauma from participation in boxing and an explosion that occurred on a ship.  McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006) (competent lay "testimony can be rejected only if found to be mistaken or otherwise deemed not credible"); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent to establish presence of observable symptomatology.)  Therefore, the remaining question is whether the evidence of record establishes a relationship between the seizure disorder and the in-service head trauma.

In June 2014, following a review of the Veteran's claims file and medical literature, a VA examiner opined that:

assuming that vet has been diagnosed with seizures and assuming as true the Veteran's assertions that he incurred head injuries associated with his in-service participation in boxing and an explosion that occurred on ship, inspite of silent service records, it is atleast as likely as not that a seizure disorder is related to incidents of active duty service.

June 2014 VA Opinion.

As the Board has found the Veteran's statements in regards to in-service head trauma to be credible the other VA opinions of record, which deny the occurrence of in-service head trauma, hold little probative value.  Reonal v. Brown, 5 Vet. App. 458, 794 (1993) (noting that a medical opinion based upon an inaccurate factual predicate has no probative value).  

In sum, VA concedes that the Veteran has a current diagnosis of a seizure disorder, further, there is credible evidence of in-service head trauma, and the probative opinion of record indicates it is at least as likely as not that they are related.  Therefore, resolving all doubt in favor of the Veteran, his case meets the requirements of 38 C.F.R. § 3.303, thus, service connection for a seizure disorder is warranted.





ORDER

Service connection for a seizure disorder is granted.




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs