Citation Nr: 1605407 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 09-16 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for narcolepsy. 2. Entitlement to service connection for temporal lobe seizures. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Buffalo, New York. These issues were previously presented to the Board in May 2013, at which time they were remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Also before the Board in May 2013 was the issue of service connection for an acquired psychiatric disorder. In a September 2013 rating decision during remand from the Board, the Veteran was granted service connection for bipolar disorder; therefore, this issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Veteran also filed a June 2014 notice of disagreement in response to the March 2014 rating decision that found him incompetent to manage receipt of his VA benefits. The Veteran believed a party other than his spouse had been appointed as his fiduciary, and objected to that appointment. Upon contacting the RO, the Veteran learned his spouse had been appointed as his fiduciary, and in a July 2014 written statement, withdrew the notice of disagreement; thus, that issue is no longer on appeal. FINDINGS OF FACT 1. Narcolepsy did not manifest during service and was not caused by any in-service disease, injury, or event. 2. Symptoms of narcolepsy were not chronic in service, have not been continuous since service separation, and did not manifest to a compensable degree within a year of service separation. 3. A seizure disorder did not manifest during service and was not caused by any in-service disease, injury, or event. 4. Symptoms of a seizure disorder were not chronic in service, have not been continuous since service separation, and did not manifest to a compensable degree within a year of service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for narcolepsy have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for temporal lobe seizures have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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 a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of the Veteran's claims, VA issued VCAA notice in the form of a February 2008 letter that informed the Veteran of the evidence generally needed to support the claims on appeal. This notice included information regarding the assignment of an increased evaluation and effective date; what actions he needed to undertake; and how VA would assist him in developing his claims. The initial VCAA notice letter was also issued to the Veteran prior to the rating decision from which the instant appeal arises; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and any identified private treatment records have all been obtained. The Veteran was afforded several medical examinations, most recently in July 2013, for the disabilities on appeal. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disabilities sufficient to decide the claims. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no issue as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, narcolepsy and temporal lobe seizures qualify as "chronic disease" (other organic disease of the nervous system) under 38 C.F.R. § 3.309(a). For chronic diseases under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases (organic disease of the nervous system) become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service Connection for Narcolepsy The Veteran seeks service connection for narcolepsy. He asserts this disorder first manifested during active naval service, while on other occasions reported post-service onset of symptoms of narcolepsy. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that narcolepsy did not manifest during service and was not caused by any in-service disease, injury, or event during service, and that symptoms of narcolepsy or a similar organic disease of the nervous system were not chronic in service, have not been continuous since service separation, and did not manifest to a compensable degree within a year of service separation. Service treatment records are negative for any diagnosis of or treatment for narcolepsy. In February 1970, the Veteran was admitted to the emergency room at a military hospital following a period of unconsciousness. He stated he had taken narcotics during the day, and also that he had been "rolled and robbed" by unknown parties. He was admitted to the hospital, and a barbiturate screening was negative. Based on this result, the assessment was that the Veteran's lethargy was likely due to a psychological overlay and/or concomitant use of alcohol, according to the examining physician. The Veteran admitted to extensive drug use both prior to and during naval service. Drug abuse, by history, was diagnosed, and he was recommended for discharge. Neither narcolepsy nor a similar neurological disorder were diagnosed at that time. The weight of the lay and medical evidence of record shows no continuous symptoms of narcolepsy since service; rather, the weight of the evidence shows post-service onset of symptoms of narcolepsy. Following service separation, the Veteran did not seek treatment for and was not diagnosed with narcolepsy for many years, until approximately 1981, according to private medical records. According to a November 1989 letter from J.I.M., M.D., a private physician, the Veteran was first diagnosed by another physician with narcolepsy approximately eight years prior, which would show post-service onset of symptoms over 10 years after service separation. Subsequent private medical records suggest onset of narcolepsy in the 1990s, over 20 years after service separation in 1970. In a September 2008 letter, Dr. M. stated the Veteran had a current diagnosis of narcolepsy, and that the history of this disorder dated back to the 1970s. As Dr. M. first began treating the Veteran in 1989, and initially stated the Veteran was first diagnosed with narcolepsy in 1981, this later statement indicating onset of narcolepsy in the 1970s appears to be no more than a recitation of the Veteran's own subsequently self-reported medical history that is inconsistent with the first history given by the Veteran to Dr. M. Mere transcription of lay history provided by the Veteran does not become competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The later history of narcolepsy as first diagnosed "in the 1970s" is inconsistent with, and outweighed by other, more contemporaneous lay and medical evidence, so is not credible; therefore, this statement does not establish onset prior to service separation in 1970 or within a year thereafter. The Board also finds the Veteran's various statements as to when he was first diagnosed with narcolepsy to be self-contradictory and inconsistent with the earlier histories and findings of record. When he was first afforded a VA examination in July 2008, the Veteran reported onset of narcolepsy 10-15 years ago, which would be from 1993 to 1998, some 23 to 28 years after service separation in 1970. The weight of the evidence of record is against a finding of onset of narcolepsy or a similar organic disease of the nervous system during service or that the currently diagnosed narcolepsy is otherwise related to any disease, injury, or incident in service, or that narcolepsy manifested to a compensable degree within a year of service. Based on this evidence, the Board finds that narcolepsy symptoms did not have onset in service or manifest to a compensable (10 percent) degree within a year of service separation. Such a chronic disability was first manifested at the earliest in 1981, which is over 10 years after service. Moreover, the preponderance of the evidence is against a nexus between any in-service disease, injury, or incident, and a current diagnosis of narcolepsy. In July 2008, the Veteran was afforded a VA neurological examination, and the claims file was reviewed at that time. The Veteran reported onset of narcolepsy approximately 10-15 years ago. He denied any history of neurological trauma, including during service. After physically examining the Veteran and reviewing the claims file, the VA examiner diagnosed narcolepsy. Considering the onset of these disabilities, the examiner opined it less likely than not narcolepsy had its onset in service. While the February 1970 episode was noted, the examiner opined that this was "not the normal presentation for narcolepsy" and was more likely due to intoxication. In June 2013, the Veteran was afforded another VA neurological examination, and the claims file was reviewed at that time. On review of the service treatment records, the examiner found no evidence of symptoms consistent with narcolepsy or a sleep disorder during service. The VA examiner also noted the Veteran's account of an episode of unconsciousness in service. The Veteran otherwise stated he was not diagnosed with a seizure disorder until the 1990s. Based on review of the claims file and in-person examination of the Veteran, the examiner determined narcolepsy first began many years after service separation, and opined that narcolepsy was less likely than not related to any disease, injury, or incident therein. Regarding the February 1970 in-service episode of unconsciousness, the VA examiner opined that this was likely due to the Veteran's intoxication and drug use, and not narcolepsy, as it was not consistent with the usual presentation for that disorder. According to the February 1970 hospitalization report, the Veteran was easily roused, a trait not common with narcolepsy. For these reasons, the Board finds the preponderance of the evidence to be against the conclusion the Veteran's current narcolepsy had its onset in service, or within a year of service separation, or is otherwise related to service. The weight of the evidence of record is against such a nexus either by medical opinion or by continuous symptoms after service. While the Veteran has a current diagnosis of narcolepsy, this chronic disorder was diagnosed many years after service separation, and the weight of the competent evidence demonstrates onset years after service. A layperson is competent to report observable symptomatology which comes to him via his senses, such as drowsiness. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. Lay testimony on the etiology of a current diagnosis of narcolepsy is not competent in the present case because the Veteran is not competent to state that such a disability had its onset in service under the specific facts of this case that show no sleep-related symptoms or disorders during service and no symptoms for many years after service. Neurological disorders such as narcolepsy are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent evidence. While the Veteran is competent to report such symptomatology as sleepiness, and he has done so, the diagnosis of narcolepsy or related sleep disorders is not susceptible merely to diagnosis by lay observations alone. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a disorder capable of lay diagnosis); Moray v. Brown, 5 Vet. App. 211 (1993) (regarding causation of retinitis pigmentosa, veteran's testimony of aggravation of pre-existing disability in service was not competent evidence of aggravation, which was medical in nature). The Veteran has also not stated he is reporting the opinion of a competent expert as told to him. See Jandreau. Accordingly, the most probative evidence of record on the question of direct nexus to service, in the absence of continuous post-service symptoms, are the July 2008 and June 2013 VA examination reports and opinion statements. These examiners reviewed the file, considered the Veteran's history and provided a detailed rationale for the opinions provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for narcolepsy, including as a presumptive 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 for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for a Seizure Disorder The Veteran seeks service connection for a seizure disorder. He asserts this disorder first manifested during active naval service. The Veteran has asserted that a February 1970 in-service episode should not be attributed to drug use because a barbiturate screen was negative, according to the hospitalization report. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that a seizure disorder did not manifest during service and was not caused by any in-service disease, injury, or event during service, and that symptoms of a seizure disorder or similar organic disease of the nervous system, were not chronic in service, have not been continuous since service separation, and did not manifest to a compensable degree within a year of service separation. Service treatment records are negative for any diagnosis of or treatment for a seizure disorder. As noted above, the Veteran was admitted to the emergency room at a military hospital in February 1970 following a period of unconsciousness. He stated he had taken narcotics during the day after being unable to locate alcohol, and also that he had been "rolled and robbed" by unknown parties. He was admitted to the hospital, and a barbiturate screening was negative. Based on this result, the Veteran's lethargy was likely due to a psychological overlay and/or concomitant use of alcohol, according to the examining physician. The Veteran admitted to extensive drug use both prior to and during naval service. Drug abuse, by history, was diagnosed, and he was recommended for discharge. Neither a seizure disorder nor a similar neurological disorder were diagnosed at that time. The weight of the lay and medical evidence shows post-service onset of symptoms of seizure disorder years after service. Following service separation, the Veteran did not seek treatment for and was not diagnosed with a seizure disorder for many years, until approximately 2000, according to private medical evidence of record. The weight of the evidence of record is thus against a finding of onset of a seizure disorder or a similar organic disease of the nervous system during service or as otherwise related to any disease, injury, or incident therein, or to a compensable degree within a year thereafter. The service treatment records are negative for symptoms or a diagnosis of or treatment for a seizure, or any seizure-related complaints voiced by the Veteran at that time. Thus, based on this evidence, the Board finds that symptoms of a seizure disorder did not have onset in service, symptoms were not chronic in service, and symptoms did not manifest to a compensable (10 percent) degree within a year of service separation. Such a chronic disability was first diagnosed in 2000, approximately 30 years after service. Moreover, the preponderance of the evidence is against a nexus between any in-service disease, injury, or incident, and a current diagnosis of temporal lobe seizures. In July 2008, the Veteran was afforded a VA neurological examination, and the claims file was reviewed at that time. The Veteran reported a diagnosis of epilepsy approximately 10-15 years ago, which shows post-service onset from between 1993 and 1998, some 23 to 28 years after service. He denied any history of neurological trauma, including during service. After physically examining the Veteran and reviewing the claims file, the VA examiner diagnosed epilepsy. Considering the onset of this disability, the VA examiner opined it less likely than not that this disorder had its onset in service. While the February 1970 episode was noted, the VA examiner did not conclude this episode was the result of a seizure, as it was more likely due to intoxication. In June 2013, the Veteran was afforded another VA neurological examination, and the claims file was reviewed at that time. On review of the service treatment records, the examiner found no evidence of symptoms consistent with epilepsy or a seizure disorder during service. The VA examiner noted the Veteran's account of an episode of unconsciousness in service. The Veteran otherwise stated he was not diagnosed with a seizure disorder until the 1990's. Based on review of the claims file and in-person examination of the Veteran, the examiner determined a seizure disorder first began many years after service separation, and opined that seizure disorder was less likely than not related to any disease, injury, or incident in service. Regarding the February 1970 in-service episode of unconsciousness, the VA examiner opined that this was likely due to the Veteran's intoxication and drug use, rather than epilepsy. The Veteran has asserted that the February 1970 episode could not be attributed to drug use, as a barbiturate screen was negative, according to the hospitalization report. The Board notes, however, that the Veteran was hospitalized for over two weeks, and the report does not specify when the barbiturate screening took place while he was an inpatient. Moreover, the Veteran himself admitted at the time of the 1970 admission that he had in fact been abusing drugs, and reported an "extensive" drug history during active duty service. Thus, the Board finds the 2008 and 2013 examiners' opinions to be consistent with the Veteran's history as reported in 1970. Also of record is a March 2009 letter from Dr. M., confirming the Veteran had a current diagnosis of non-epileptic seizures. Dr. M. also opined that, based on the Veteran's reported history of being found unconscious on a beach during service, it was "certainly possible" this seizure disorder began at that time. In describing such a nexus as "possible"; however, in the context of this case that shows no subsequent chronic or continuous symptoms following the episode in service until decades after service, this statement does not have any probative weight because it is not an opinion of probability, but only a statement of possibility. For this reason, the statement is speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). Moreover, Dr. M. did not address the Veteran's admitted drug use just prior to his lapse into unconsciousness. For these reasons, the Board finds the preponderance of the evidence to be against the conclusion the Veteran's current seizure disorder had its onset in service, or within a year of service separation, or is otherwise related to service. The weight of the evidence of record is against such a nexus either by medical opinion or by chronic symptoms in service or continuous symptoms after service. While the Veteran has a current diagnosis of a seizure disorder, the weight of the evidence shows this chronic disorder was began many years after service separation, and is not otherwise related to service. A layperson is competent to report observable symptomatology which comes to him via his senses, such as periods of unconsciousness. See Jandreau, 492 F.3d at 1372; see also Buchanan, 451 F.3d at 1331. Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. Lay testimony on the etiology of a current diagnosis of a seizure disorder is not competent in the present case because the Veteran is not competent to state that such a disability had its onset in service under the specific facts of this case that show no chronic seizure-related symptoms or disorders during service and no continuous symptoms after service until many years after service. Neurological disorders such as epilepsy are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent evidence. While the Veteran is competent to report such symptomatology as periods of unconsciousness, and he has done so, the diagnosis of a seizure disorder and nexus to service, in the factual context of absence of credible evidence of continuous symptoms, is not susceptible merely to lay observations alone. The Veteran has also not stated he is reporting the opinion of a competent expert as told to him. See Jandreau. Accordingly, the most probative evidence of record on the question of direct service connection are the July 2008 and June 2013 VA examination reports and opinion statements. These examiners reviewed the file, considered the Veteran's history and provided a detailed rationale for the opinions provided. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a seizure disorder, including as a presumptive 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 for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for narcolepsy is denied. Service connection for temporal lobe seizures is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs