Citation Nr: 18152920 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-38 357 DATE: November 26, 2018 ORDER Service connection of thyroid cancer is denied. Service connection for epilepsy (seizure disorder) is denied. FINDINGS OF FACT 1. Appellant’s thyroid cancer did not arise from any in-service event or incident. 2. Appellant’s pre-existing seizure disorder was not aggravated by his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for thyroid cancer are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for aggravation of epilepsy (seizure disorder) are not met. 38 U.S.C. §§ 1110, 1112, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Appellant served in the United States Army from September 2, 2009 to October 16, 2009. He received an uncharacterized discharge on the basis of entry level performance and conduct and “cannot or will not adjust to military life.” He is appealing a September 2014 rating decision that denied service connection for thyroid cancer and epilepsy. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To succeed in a claim of service connection, a Veteran must show, after given the benefit of the doubt, that they have all three elements satisfied with sufficient evidence. A Veteran will succeed on their claim if the evidence that supports each element of the claim is in equipoise with the evidence against their claim. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection of thyroid cancer The Appellant contends that he did not have cancer before his brief period of enlistment and therefore his cancer arose in connection with his service. The question for the Board is whether the Appellant has a current disability, whether there was an in-service event or occurrence that could possibly have led to that disability and if there is a nexus between the disability and the in-service event. Given that the Appellant does not have an in-service event or occurrence, his thyroid cancer cannot be service connected and his claim is denied. In his statements to the VA in pursuit of his claim, Appellant does not provide an in-service event or occurrence that caused his cancer. He merely provides that he “didn’t have any of these issues until after service” as a basis for an in-service event or occurrence. His service treatment records make no note of any thyroid problems, conditions, symptoms or cancers that may have occurred in the 44 days he was in service. He does not provide anything that happened during his time in the military that would sufficiently be an in-service event or occurrence. Appellant served in the military in 2009 and was not diagnosed with the cancer until 2012. The appellant does not show any indication of having thyroid cancer prior to his diagnosis in either his service treatment record or his May 2012 private medical treatment files. Significantly, no symptoms arose for his cancer until 3 years after his military service. In August 2014, a VA physician noted a review of the claims file, examined the Appellant, and found no evidence to support an onset during or cause by any aspect of service. In order to service connect Appellant’s current disability, there must be some evidence of an in-service event that could potentially be connected as the reason for his disability. There is nothing service-related that connects his thyroid cancer to his brief tenure in the military. Because he does not have an in-service event or occurrence and accordingly has no connection between his current disability and his military service, he cannot be service connected for his thyroid cancer. The Board finds that the preponderance of the evidence against the Appellant and his claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection of his epilepsy (seizure disorder) If there is evidence of a condition existing at the time one entered military service, the Veteran may still claim service connection for their disability if the disability was aggravated beyond its natural progression by the Veteran’s service. 38 U.S.C. § 1153. When a disability or disease is noted on the Veteran’s service entrance examination, the burden falls upon the Veteran to show that his military service aggravated the condition. Horn v. Shineski, 25 Vet. App. 231, 238 (2012). If the Veteran fails to show aggravation, a pre-existing condition will not be service connected. The Appellant contends that he had a pre-existing epileptic seizure condition and that it was aggravated by his brief service in the Army. The question for the Board is whether the Appellant has a current disability that first manifested during or was aggravated or worsened beyond its natural progression during service. Because the Appellant’s reported history of a pre-service injury was noted in his entrance examination, the burden falls upon the Appellant to show that any residuals of his pre-service injury were aggravated by his service. Service treatment records included examinations in February 2009 prior to acceptance into service. The Appellant reported and examiners confirmed that he had experienced a head injury with a depressed skull fracture in a motor vehicle accident at age 5. A neurologist noted that there was no history of seizures or the use of prophylactic anti-seizure medication. The Appellant denied any history of feeling faint or having spells of dizziness. He reported having played football and competed in wrestling in school, then worked, married, and had two children prior to applying for entry in the Army. He denied ever having been told to limit his physical activity. The neurologist provided a detailed evaluation and found that the Veteran had fully recovered and that there were no residuals of the injury including no abnormal neurological deficits and no cognitive impairment. Therefore, the Board finds that the Appellant had a traumatic brain injury at the age of 5 but the weight of competent evidence is that he did not have an on-going seizure disorder at entry on active duty. Therefore, the Board must determine whether a seizure disorder first manifested during service or whether an undetected disability arising from the traumatic injury was aggravated by active military service beyond that of the natural progression of the disease. 38 C.F.R. § 3.306. Service treatment records contain one treatment encounter in September 2009 when the Appellant sought treatment for what he reported as symptoms of headache, dizziness, and “past (sic) out.” A physician diagnosed headache syndrome and dizziness, prescribed fluids and 24 hours rest but no medication, and ordered the Appellant to report for follow-up the next day. The results of the follow-up, if any, are not of record. There was no mention of any trauma or occurrence that suggested the onset of a seizure disorder or aggravation of any residuals of the head trauma at age 5. The Appellant reported that his seizures have increased in occurrence since he left service but did not report any in-service event or occurrence explaining or elaborating upon the increase or report when they started. The evidence provided, after given the benefit of the doubt, confirms that the seizure disorder did not manifest during service or, if pre-existing and undetected, did not worsen due to his service. In August 2014, a VA examiner found that it is less likely than not that the worsening of the condition arose from his time in service. His private treatment records from May 2012 that discuss the increase in seizures only mention and emphasize his childhood traumatic brain injury and history of seizures. The medical records do not mention any in-service event that could have potentially contributed to his seizure condition. During the examination, the physician noted that the Veteran did not have epileptic seizures but rather “pseudoseizures” that occurred starting in 2011. The physician cited an electrodiagnostic test obtained in 2012. Considering the lay and medical evidence provided in the service records and from both his VA examination and his private doctors, the Appellant does not show that residuals of his head trauma at age five and pre-existing seizures, if any, first manifested in service or, if pre-existing, were aggravated by service. Accordingly, the Board finds that the preponderance of the evidence is against the Appellant and the claim of service connection for his seizure disorder is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.Sellers, Associate Counsel