Citation Nr: 1800177	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  13-17 474	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for a seizure condition.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. D'Allaird, Associate Counsel


INTRODUCTION

The Veteran served on active duty for training from December 1981 to April 1982, with additional service in the Army National Guard from November 1981 to November 1988.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision of the Oakland, California, Regional Office (RO) of the Department of Veteran's Affairs (VA). The Veteran appeared before the undersigned during a hearing held before the Board in July 2016. A transcript is of record. 

In January 2017, the Board remanded this claim for further development.

The Veteran's claims for entitlement to service connection for a back disability and an acquired psychiatric disability, previously associated with this appeal stream, were granted by the RO in a September 2017 rating decision. As such, they are not in appellate status and will not be addressed here.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

At no time during, or prior to, the course of this appeal has the Veteran been diagnosed with a seizure disability.


CONCLUSION OF LAW

The criteria for service connection for a seizure disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, the duty to notify was satisfied by letter in March 2011. See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been obtained.

With regard to the Veteran's claim for a seizure disability, the Board previously remanded this claim in January 2017 to obtain any outstanding VA treatment records. The Board directed the AOJ to schedule an examination only if the evidence of record confirmed the Veteran had a currently diagnosed seizure condition. The AOJ obtained updated VA treatment records. Because there was no evidence of record of a currently diagnosed seizure disability, the AOJ did not obtain a VA examination.

The Board acknowledges that no VA medical examination has been obtained with regard to the Veteran's seizure condition. However, the Veteran has not presented sufficient evidence establishing a current disability, even when considering the low bar of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (explaining when VA must provide Veteran with a medical examination and opinion). Because the record contains no competent or corroborated evidence (beyond the Veteran's own statements) that she has a current seizure disability, a VA medical examination is not required. 38 U.S.C. § 5103A(a)(2); McLendon, 20 Vet. App. at 81; Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008).

Moreover, the Veteran was afforded the opportunity to testify at a hearing concerning her claims in July 2016, and advised of the criteria for service connection for the disabilities claimed. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the matter of service connection, and that no further development of the evidentiary record in this matter is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims.

Legal Criteria

The Board has reviewed all of the evidence with an emphasis on that 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the analysis will focus specifically on what the evidence shows, or does not show, as to the claims.

Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To substantiate a claim of service connection, there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; 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). 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 (1999); 38 C.F.R. § 3.303(a). 

In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed OR at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In addition, "when the record contains a recent diagnosis of a disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency." Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).

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. § 5107(b); 38 C.F.R. § 3.102. 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).

Facts

Treatment records dated in June 1987 reflect the Veteran was found unconscious and salivating by medics and transported to the hospital. Medics did not witness seizure activity. It was noted at the time that the Veteran was observed to experience a grand mal seizure characterized by tonic-clonic muscle activity followed by a flaccid paralysis. The impression at the time was new onset of acute seizure disorder and the Veteran was admitted for observation.

Treatment notes dated the following month in July 1987 state the Veteran had been treated with Dilantin. The Veteran's relevant history, including the June 1987 episode, was reviewed. Notes state that in June 1987 following a heated argument the Veteran became flushed in the face, felt dizzy, sprayed water on her face and then apparently collapsed. In June a CT scan was performed with contrast which was negative. In July the Veteran was given a sleep deprived EEG which was within normal limits. Her neurological exam was without focal findings. It was noted that the Veteran's history was not conclusive for a seizure and Dilantin was not restarted. A neurologist evaluated the Veteran and opined that the June 1987 episode was more likely to be an episode of syncope (fainting) rather than a seizure.

VA treatment records dated in May 2011 noted the Veteran was not taking any medication for seizures. 

The Veteran's service treatment records and post-service treatment records are otherwise silent for reports, findings, diagnoses, or treatment of a seizure disability.

During the July 2016 Board hearing, the Veteran was asked if she still suffered from seizures. She responded "I'm on meds so that's keeping me calm. I'm on meds for my depression. I'm on meds for my back injury."

Analysis

The threshold question is whether the Veteran has a currently diagnosed seizure condition. Brammer v. Derwinski, 3 Vet. App. 223 (1992); 38 C.F.R. § 3.304(f). Although lay persons are qualified to report observable symptoms, the actual diagnosis and cause of a seizure disability are complex medical questions requiring medical expertise. The evidence does not indicate that the Veteran has the education or professional training and experience of a healthcare provider.  Therefore, her statements, while credible evidence that she has lost consciousness in the past, are not qualified evidence when it comes to diagnosing the presence of a seizure condition. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The initial medical impression following the Veteran's June 1987 episode was that she had suffered a seizure. However, the following month and after further testing, her treating physicians concluded that it was more likely that she had experienced an episode of syncope (fainting) rather than a seizure, and did not prescribe any anti-seizure medication. Subsequent evidence supports this conclusion:  the Veteran's May 2011 VA treatment records note that she does not take anti-seizure medication and, during the July 2016 Board hearing, she stated she takes medication which keeps her calm, medication for depression and for her back. The Veteran's post-service treatment records are silent for any reports, findings, diagnoses, or treatment for a seizure condition.

In sum, although it appears from the record that the Veteran was, at one point, mistakenly believed to have experienced a seizure, the evidence reflects that she does not have a currently diagnosed seizure condition. Because there is no evidence of any currently diagnosed seizure condition, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied.


ORDER

Entitlement to service connection for a seizure condition is denied.




____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs