Citation Nr: 1623845	
Decision Date: 06/14/16    Archive Date: 06/29/16

DOCKET NO.  11-11 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania 


THE ISSUE

Entitlement to service connection for a seizure disorder, to include as secondary to asbestos exposure.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel



INTRODUCTION

The Veteran, who is the appellant, had verified active duty from April 1961 to September 1961.  While he has stated that he served from April 1957, service from this date has not been verified.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In February 2012, a video-conference Board hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.

The case was remanded by the Board in March and October 2014 for further development of the evidence.  This has been accomplished, and the case has been returned for appellate consideration.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

A seizure disorder is not shown to have been evident during service or until many years thereafter and is not shown to have been caused by any in-service event, including possible asbestos exposure while on active duty.


CONCLUSION OF LAW

A seizure disorder was neither incurred in nor aggravated by service and epilepsy may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  VA's duty to notify was satisfied by letters dated in December 2009 and December 2011.  Id; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Regarding the duty to assist, the Board notes that the Veteran's service treatment records (STRs) and personnel records are unavailable and presumed destroyed in the 1973 fire at the National Personnel Records Center (NPRC).  When service records are unavailable through no fault of a veteran, the Board has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  As will be explained below, the Board finds that the heightened duty to assist has been met.

Following the Veteran's application for service connection, the RO sent several inquiries to the NPRC in an effort to reconstruct the Veteran's STRs and to obtain medical records from Lackland Air Force Base (Lackland), where the Veteran stated that he had received treatment for a seizure disorder while on active duty.  In response, NPRC indicated that any medical records that may have been at the NPRC facility were fire related (presumed destroyed) and they were not able to reconstruct them or locate records from Lackland.  A Formal Finding on the Unavailability of Service Treatment Records was made in May 2010.  During the Board hearing in February 2012, the Veteran acknowledged that he had been informed that his STRs were fire related.  In light of the foregoing actions, the Board finds that further efforts to obtain the Veteran's missing service records would be futile.  The Board also finds that VA has fulfilled its duty to notify the Veteran of VA's inability to obtain records, as outlined in 38 C.F.R. § 3.159(e).  

The Board further notes that attempts were made to arrange for a VA examination, including pursuant to the Board's remand in October 2014.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  The Veteran did not report for the examination.  As such, the decision will be made on the evidence of record.  See 38 C.F.R. § 3.655 (2015).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

Service Connection Laws and Regulations

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, 1131; 38 C.F.R. § 3.303(a).  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 shown 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, as identified in 38 C.F.R. § 3.309(a), 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).  Service connection may also 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).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as epilepsy, to a degree of 10 percent or more within one year from separation from service, such diseases may 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.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1990).   The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015).  When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Additionally the Veteran has alleged his claimed seizure disorder is secondary to exposure to asbestos during service.  Regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations.  Nevertheless, VA has issued a circular on asbestos-related diseases.  DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos.  The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21.  In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI.  The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim of service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993).

The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc.  High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease.  Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease).  See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b.

In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos.  Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service.  VA O.G.C. Prec. Op. No. 04-00.

In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease.  See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988).  

Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person.  See Jandreau, 492 F.3d 1372.  Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Seizure Disorder

The Veteran contends that service connection should be established for a seizure disorder, which asserts had its onset during service.  During the Board hearing in February 2012, the Veteran stated that he began having seizures for which he was treated at Lackland in late 1961.  He has further asserted that his seizures are the result of asbestos to which he was exposed while he was on active duty.  

After review of the record, the Board finds that service connection for a seizure disorder, including as a result of asbestos exposure, is not warranted.  In this regard, as noted, STRs are not available and are presumed lost in a fire.  While the Veteran testified that he received treatment for seizures in service in 1961, he further stated that he did not seek treatment for a seizure disorder from 1961 to 1971 when he received his initial post-service treatment from a private physician who is now deceased.  VA treatment records show that the Veteran was treated for a seizure disorder beginning in October 2003.  At that time, the Veteran gave a history of having first had seizures at age 22.  (In his application for compensation benefits, the Veteran stated that he was born in May 1940.)  

As noted, the Veteran did not report for a VA examination scheduled pursuant to the Board's October 2014 remand.  When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655 (b) (2015).  The Veteran has not submitted a medical opinion or competent evidence relating his seizure disorder with possible exposure to asbestos during service.  

As noted, service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  

In this case, while the Veteran testified that he had seizures while in service, there is no indication of post-service treatment until 2003 at which time he gave a history of seizures from age 22, which would post-date his period of active duty.  The absence of clinical treatment records for approximately 40 years after active duty is probative evidence against a grant of service connection on a presumptive chronic disease basis or based on continuity of symptoms since service.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability).  Thus, the lack of any evidence of seizure complaints, symptoms, or findings for four decades between the period of active service and his first documented seizure problem is itself evidence which tends to show that the seizure disorder did not have its onset in service or for years thereafter.  Similarly, as noted, there is a lack of evidence establishing a nexus between the seizure disorder and any exposure to asbestos that the Veteran may have had.  

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a seizure disorder, and the 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 a seizure disorder, including as a result of asbestos exposure, is denied.  



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs