Citation Nr: 18147755 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-40 812 DATE: November 6, 2018 ORDER Entitlement to service connection for the residuals of acute mountain sickness, to include seizures and the residuals of a traumatic brain injury (TDI) is denied. FINDINGS OF FACT 1. Evidence of the claims file reveals lay statements by the Veteran, but no record of seizures. Seizures are first demonstrated several years after service separation and have not been clinically related to any in-service occurrence or event. 2. Evidence of the claims file reveals lay statements by the Veteran, but no record of acute mountain sickness (AMS) in or post service. 3. Evidence of the claims file reveals lay statements by the Veteran, but no clinical record of a traumatic brain injury in and not pertinent residuals post service. CONCLUSION OF LAW The criteria for entitlement to service connection for the residuals of acute mountain sickness, to include seizures and the residuals of a TBI have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had a period of active duty service from July 2007 to May 2011. He testified at a Regional Office hearing in April 2017. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131(2012); 38 C.F.R. § 3.303 (2017). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Neurological disorders such as seizures, are on the list of diseases presumed to have been incurred in-service. Pursuant to 38 C.F.R. § 3.303(b) (2017), where a chronic disease is shown in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service, but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) (2017) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) (2012) or 38 C.F.R. § 3.309(a) (2018). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for the residuals AMC, to include seizures and the residuals of a TBI. The Veteran seeks to establish service connection for seizures, AMS, and TBI. He asserts that he asserts that he had an episode of AMS in MAY 2010 while undergoing training in the Sierra Nevada mountains. He asserts loss of consciousness and as a result he was transported in a poncho down the mountain to the aid station by his comrades. The Veteran reported that during his transportation to the aid station, he thinks his head was kicked and repeatedly struck the ground and rocks. The Veteran contends that as a result of his ordeal in-service, he presently suffers from AMS, seizures, and TBI. The Veteran’s service treatment records (STRs) are negative for complaints, diagnosis or treatments for seizures, AMS, or TBI, nor is there any notation in his service records of him suffering any neurological events in May 2010, or at any time prior to his discharge. Problem lists in service do not refer to any of these events or disorders. He does give the pertinent history at separation concerning the AMS, but denied head injuries, and was not sure he had lost consciousness. July 2013 VA outpatient treatment psychiatric records reveal that the Veteran reported major depression, anxiety, alcohol abuse, TBI, migraine headaches, and a history of AMS. After undergoing a TBI screening the examiner diagnosed the Veteran as positive for TBI with acute mountain sickness noting migraines, irritability, decreased memory/concentration, sensitivity to light, and insomnia. These findings are apparently based on the history provided. Service connection has been established for headaches based on in-service and post-service findings. Clinical confirmation of a TBI or the residuals thereof has not been accomplished. In a November 2014 VA outpatient psychiatric examination, the examiner noted that the Veteran’s reported history of seizures disorder and high-altitude sickness. In a July 2014 VA C&P TBI examination, the examiner diagnosed the Veteran as negative for TBI or any residuals of TBI, however; the examiner did note the Veteran’s reported history of a May 2010 episode of AMS. The examiner noted that although the Veteran asserts a TBI in-service, at his separation examination, he denied any history of a head injury. The examiner explained in detail that if the Veteran were to have injured his head numerous times while being transported down the mountain, there would be evidence of physical trauma to his head. The examiner also noted that the Veteran was symptom free after the claimed event except for a headache. The examiner explained that the Veteran reported having no other symptoms for months. He noted that the normal progression of an anoxic brain injuries such as TBI is that all the symptoms occur at the time of the injury with their worst manifestations, but then improve and heal in time. The examiner explained that symptoms resulting from an anoxic brain injury such as TBI do not begin months after the instigating event which suggest that the examiner did not sustain an anoxic injury such as mild TBI. Finally, the examiner opined that it is less likely than not (less than 50/50 probability) that the Veteran’s condition of no pathology or diagnosis of a history of head injury, concussion, or TBI is caused by or related to his reported episode of acute mountain sickness in May 2010. Addressing the Veteran’s claimed seizure disorder, the examiner addressed the Veteran’s description of shaking and frothing at the mouth as evidence of having a seizure. The examiner explained that the Veteran’s assertions are not supported by the preponderance of the evidence. The examiner noted that it is not uncommon for shaking to occur during a syncopal episode. He explained that because the Veteran had loss of consciousness due to his reported acute mountain sickness, his shaking and jerking at the time of the event is more likely than not due to syncope and less likely than not due to an epileptic seizure. He noted that although frothing at the mouth is popular conception of what occurs during a seizure, in reality it is extremely rare. The examiner explained that although the Veteran did report an episode of AMS in May 2010, the Veteran’s reported AMS resolved itself with no residuals prior to his separation from service. He opined that it is less likely than not that the Veteran’s condition of no pathology or diagnosis for a history of head injury, concussions, TBI, or seizures was caused or related to his reported episode of AMS in May 2010. Furthermore, the examiner noted that the Veteran’s STR’s were bare for any complaints, diagnosis, or treatments relating to AMS, TBI, or seizures. There are medical records from several years after service that show treatment for seizures. These records however show the treatment an onset, to the extent confirmed several years after separation from service. There is no indication of evidence in these records attributing any seizures found to any in-service event or occurrence. The Board also reviewed and carefully considered the Veteran’s lay statements that his reported neurological disorders are connected to his time in-service as evidenced from his August 2016 Form 9 submission, statements in support of the claim, hearing testimony, and statements by his accredited representative. This evidence has assisted the Board in better understanding the nature and development of the Veteran’s medical claims. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to disorders, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2018). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel