Citation Nr: 1806157 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 05-28 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Veteran represented by: Robin Hood, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Navy from August 1975 to January 1979. This case comes before the Board of Veterans' Appeals (the Board) from a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans' Law Judge (VLJ) in October 2010. A transcript of that proceeding has been associated with the claims file. In an October 2017 statement, the Veteran's representative requested a new hearing. While VA's duty to assist includes affording the Veteran a hearing, there is no right to multiple hearings on the same issue without some reasonable justification, especially given the large number of veterans patiently waiting for the opportunity to testify at a hearing. Because a hearing on this issue was already provided in October 2010, and no additional issues have been added to the appeal, the Veteran's request for a new hearing is denied. 38 C.F.R. § 20.700 (2017). This case was remanded for additional development in December 2010, June 2012, August 2013, June 2014, and August 2015. The Board observes that in March 2012, the Veteran requested that jurisdiction of this matter be transferred from the Oakland RO to the RO closest to his current residence in Florida. In its June 2014 remand, the Board requested that the transfer be effectuated in accordance with the Veteran's request. The record does not indicate that the Veteran's case has been transferred to the RO in Florida. FINDING OF FACT The weight of the probative evidence is against a finding that the Veteran had an in-service event, injury, or disease that is related to his present seizure disorder. CONCLUSION OF LAW The Veteran's seizure disorder was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in June 2003 and July 2012 letters. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before the undersigned VLJ in October 2010. These claims were remanded in December 2010, June 2012, August 2013, June 2014, and August 2015. Those remands directed the AOJ to provide the Veteran proper VCAA notice, attempt to obtain in-service records of any treatment for a head injury, accident reports or deck logs, Social Security Administration (SSA) disability records, and obtain VA opinions regarding the Veteran's seizure disorders. The RO made multiple attempts to obtain the Veteran's SSA disability records but received a negative response in April 2011. The Veteran was provided proper VCAA notice in July 2012. The RO received records documenting the Veteran's treatment at the Naval Regional Medical Center in Charleston; however, the records did not reference the Veteran's reported head injury. The RO obtained the U.S.S. Valdez ship history for 1978 and 1979, but received a negative response from the National Archives and Records Administration (NARA) in August 2012, indicating that deck logs for the period in question were not available for review, and that any extant accident reports would be among the Veteran's records rather than deck logs. Additionally, opinions were obtained in February 2012, November 2013, September 2014, and January 2016. The Board acknowledges the Veteran's representative challenged the adequacy of the January 2016 examination reports, noting that they suggested the Veteran did not have a current seizure disorder. See April 2016 and October 2017 submissions. Notwithstanding the findings of the January 2016 examiner, there is ample evidence regarding the Veteran's current seizure diagnoses; thus there is sufficient evidence in the claims file for the Board to render a decision on the Veteran's claim. Additionally, the Board acknowledges that the Veteran's representative indicated he had obtained the Veteran's SSA disability records and wished to discuss them at a new hearing. The Veteran and his representative have been afforded the opportunity to submit evidence in support of the Veteran's claim including the SSA records, and have chosen not to submit that evidence. The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran seeks entitlement to service connection for seizure disorders, which he asserts resulted from a head injury during service. See, e.g., April 2003 claim and June 2004 statement. However, for the reasons discussed below, the weight of the evidence is against the Veteran's claim. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including epilepsies and organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In the instant case, there is no presumed service connection because the evidence does not show that the Veteran's seizure disorders manifested to a compensable degree within one year of separation from service. See, e.g., June 2003 VA medical record, November 2003 statement, May 2009 VA medical record, and December 2010 statement, indicating Veteran's seizures began around 1997. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The probative evidence of record indicates the Veteran meets the first Hickson element with diagnoses of tonic-clonic seizures, psychomotor epilepsy, and absence seizures or petit mal or atonic seizures. See, e.g., November 2013 and September 2014 VA examination reports. However, the probative evidence of record does not show the existence of an in-service incurrence of the claimed seizure disorder. The Veteran has provided an inconsistent history regarding the circumstances of his claimed in-service injury. In his original claim for service connection, the Veteran reported he sustained a head injury during service when a torpedo pushed his body against a door and knocked him unconscious and simultaneously injured his right arm. See April 2003 claim. The Veteran reiterated this incident in subsequent statements, explaining that when he regained consciousness he was transported to the Charleston Naval Hospital and underwent a computed axial tomography (CAT) scan which revealed damage to his left temporal lobe. See November 2003 statement, January 2004 statement, and July 2009 statement. The Veteran stated that the incident during which he injured his head was the same one in which he broke his elbow. See April 2003 claim, November 2003 statement with addendum, September 2005 VA Form 9, July 2009 statement, December 2010 statement, and October 2013 statement. Critically, the Veteran has testified that he only sustained one injury during service, which was the one that reportedly occurred in the torpedo room. See October 2010 Hearing Transcript, pp. 2-3. The Board also notes that the Veteran's brother submitted a statement in November 2014, indicating that the Veteran returned from the Navy in the early 1980s with a cast on his arm and told his parents of a head injury aboard the ship he was on. See November 2014 statement from K. S. The Veteran's service treatment records and hospitalization records discuss the circumstances of the Veteran's elbow injury in great detail. An April 1978 clinical record states that the Veteran injured his elbow in March when he fell down steps while exiting an airplane. He was treated with ice packs and a sling but continued to have difficulty fully extending his forearm, and received subsequent care at an orthopedic clinic where he underwent an arthrotomy, which revealed a capitellum fracture of the right humerus. The records indicate the Veteran had surgery on the elbow in August 1978, where a debridement of the degenerated articular cartilage and copious irrigation of the joint was performed. The Veteran was eventually found unfit for service as a result of his elbow condition and discharged. There is no indication in the Veteran's service treatment records or clinical records that the Veteran ever hit his head, lost consciousness, underwent a CAT scan or any other type of testing for a head injury, or received treatment for a head injury. Moreover, the surgery the Veteran had on his arm occurred several months after his original arm injury, not immediately after the injury as his statements suggest. See October 2010 Hearing Transcript, pg. 3. Given the foregoing, the Board concludes that the Veteran's reported history and other lay evidence is inconsistent with the objective evidence of record. Notably, the Veteran contends he injured his elbow and his head in the same incident. See April 2003 claim, November 2003 statement with addendum, September 2005 VA Form 9, July 2009 statement, October 2010 Hearing Transcript, pp. 2-3, December 2010 statement, and October 2013 statement. However, as shown above the circumstances of the Veteran's reported head injury differ substantially from what is noted in the contemporaneous records. The service treatment records and clinical records indicate the Veteran fell down stairs while exiting an aircraft and landed on his elbow; they contain no reference to the Veteran losing consciousness or otherwise sustaining a head injury, let alone in a torpedo room. Given the extensive records regarding the in-service elbow injury, it stands to reason that had the Veteran sustained a head injury and undergone testing (such as a CAT scan), that those events would be documented in the same records. However, they are not. Thus, the Board finds the objective records showing no indications of a head injury to be of greater probative value. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). The Board acknowledges that efforts had been previously undertaken to determine whether the Veteran had a head injury prior to service that was aggravated during service. These efforts were prompted by medical records noting the Veteran's reports that he was abused as a child, in particular thrown down stairs when he was three years old and knocked unconscious and incurring a cranial injury for which he was hospitalized. See February 2003, June 2003, and July 2003 VA medical records. However, the Veteran's reported history with respect to any preexisting condition is also inconsistent. The Veteran denied previous head injuries and epilepsies or fits on his November 1976 enlistment report of medical history, and the November 1976 examination report indicates his head and neurological systems were clinically normal. Moreover, in a November 2014 statement the Veteran wrote that he did not have his seizure condition until he sustained the head injury while in the military. Additionally, during the January 2016 VA examinations, the Veteran explained that he was not injured from the fall down the stairs when he was a child. Given this inconsistent history, the absence of a head injury or seizure disorder found at entry into service and the Veteran's express denial of past head injuries at that time, the record does not support a finding that the Veteran entered service with a preexisting head injury. Moreover, for the reasons noted above, there is no probative evidence of any additional head injuries or aggravation of a preexisting head injury during service. In summary, the probative evidence of record is against finding that the existence of an in-service incurrence of the claimed seizure disorder. Thus, the second Hickson element is not met, and service connection for the Veteran's claimed seizure disorder is not warranted. ORDER Entitlement to service connection for a seizure disorder is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs