Citation Nr: 21002968 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 08-12 745 DATE: January 19, 2021 ORDER Entitlement to service connection for seizure disorder is denied. Entitlement to service connection for migraine headaches is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a seizure disorder began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that migraine headaches began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a seizure disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for migraine headaches have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from September 1965 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2007 and July 2008 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. This claim was last before the Board in August 2018 where it was remanded for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a veteran served continuously for 90 days or more during active service, and organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Veteran is seeking service connection for a seizure disorder and for migraine headaches. He attributes both conditions to being struck by an unsecure hatch onboard ship in 1967. He denied any loss of consciousness or any laceration to the head from this. The Veteran submitted a buddy statement indicating that a hatch hit the Veteran on the head during service. He testified that his headaches and seizures began maybe a year or two after discharge from service. The Board finds such contention of questionable reliability considering his report to treatment providers that he has had the spells since childhood, and denied seizures in treatment records from 1999 and 2000. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). 1. Entitlement to service connection for seizure disorder The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a likely seizure disorder, the preponderance of the competent, credible and probative evidence weighs against finding that a seizure disorder began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records dating from 1999 to 2004 reveal no complaints of seizures. Records from December 1999 and July 2000 noted the Veteran denying dizziness, loss of consciousness, transient ischemic symptoms or seizures. A December 2004 entry noted the Veteran had recently been diagnosed with seizures by Elmhurst Hospital. VA treatment records reflect treatment for the claimed seizures, although the records do suggest some question as to whether the Veteran actually suffers from true seizures. In an August 2006 neurological consultation, the Veteran reported that ever since childhood he has been having episodes of blurry vision that lasts from 10 to 15 minutes and can happen anytime. He denied any loss of consciousness, incontinence, shaking, or confusion. He denied that these occurred during service. An October 2006 record notes that a November 2004 EEG was consistent with focal cerebral lesion which may be epileptiform. The Veteran had an abnormal EEG in November 2006, with sharp waves identified in the bi-anterior temporal areas. In February 2008, a neurological consultation noted that while the Veteran has a prior diagnosis of seizures, his condition was less likely a seizure. The examiner diagnosed migraine headaches and dizziness. As seizures were not noted during service, competent evidence linking the current condition to service is needed. However, on this question, the preponderance of the competent and probative evidence is against the claim. In this regard, the March 2019 VA examiner opined that the Veteran’s seizure disorder is not at least as likely as not related to an in-service injury, event, or disease, including being struck by a hatch. The rationale was: . . . the record reflect[s] that the Veteran reported blurred vision spells since childhood and no episodes in service. This is suggestive of a pre-existent seizure disorder however there is no documentation of a diagnosis of a seizure disorder prior to nor during service. However, the symptoms reported by the Veteran and his admission that he had seizures prior to service make it at least as likely as not (50 percent or greater probability) the [V]eteran's claimed seizure disorder was present prior to service. Again, there is no documentation of spells/seizure during service. He was diagnosed with “likely seizures” in 2007 which is 37 years after service. Either way (prior to service or in 2007) there is no evidence to conclude that his claimed seizures were caused by or incurred in during service, nor aggravated by service as there is no documentation of seizure or seizure like activity during service. There is no evidence of worsening in severity in-service or after, there is not any objective evidence to support a complication secondary to being hit in the head by a hatch including seizures or [traumatic brain injury]. There is no documentation in [service treatment records] of seizures like activity in-service. About one-half of early post-traumatic seizures occur during the first 24 hours, and one-quarter occur within the first hour. Most Post-traumatic seizures (72 to 84 percent) presenting within the first day are generalized tonic clonic type. The later a seizure begins in relationship to the head injury, the more likely it will be focal in onset; after the first day, more than half are either simple partial (pure motor) seizures or focal with secondary generalization. Complex partial seizures are rare in this setting. Overall post-traumatic seizures develop in some TBI groups, such as those with depressed skull fracture and intracerebral hematoma requiring evacuation. Early seizure rates are also higher in patients with more severe head injuries, subdural hematomas, and penetrating head injury, but they do occur in patients with mild TBI and normal head. See March 2019 VA examination. There is no probative medical opinion of record linking the Veteran’s seizure disorder to service. To the extent the Veteran may have had a seizure disorder that existed prior to service, the Board finds such a conclusion would not change the outcome of this case. As noted above, in order to prevail on the issue of service connection, there must be competent evidence of in-service incurrence or aggravation of a disease or injury and competent evidence of a nexus between the in-service injury/disease or aggravation thereof and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Here, the VA examiner has explained why the current disability is not related to the events in service, as there is no objective evidence to support a complication secondary to being hit in the head by a hatch including seizures or traumatic brain injury, and there is no evidence of spells or seizure like activity during service. Thus, regardless of whether the Veteran may have had a seizure disorder prior to service, in the absence of a medical link between the current seizure disorder and service, there is no basis to establish service connection, and further analysis concerning aggravation is not necessary. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (“The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.”); see also Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran”). In sum, there is no competent evidence of record establishing that the Veteran’s seizure disorder began during service or for many years thereafter, or that a seizure disorder is otherwise related to his service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection for a seizure disorder is denied. 2. Entitlement to service connection for migraine headaches The question for the Board is whether the Veteran has a current headache disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of migraines including migraine variants, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of migraine headaches began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for headache complaints. Post-service treatment records reveal no complaints of headaches in private treatment records dating from 1999 to 2004. The Veteran was not diagnosed with migraine headaches until decades after his separation from service. Further, the June 2016 VA examiner opined that the Veteran’s headaches are not at least as likely as not related to an in-service injury, event, or disease, including being struck by a hatch. The rationale was that there is no documentation of headaches during service, and while the Veteran reported developing headaches one year after being hit on the head by a ship hatch, chronic posttraumatic headaches develops within three months after a head trauma; therefore, his headache symptoms as reported do not meet criteria for a chronic posttraumatic headache or post-concussion syndrome. The VA examiner noted that “[t]he symptoms and disability attributed to post-concussion syndrome to include [headache] are greatest within the first 7 to 10 days, for the majority of the patients,” and “[a]t one month symptoms are improved and in many cases resolved,” with the vast majority of patients recovering by three months. Id. There is no probative medical opinion of record linking current headaches to service. In sum, there is no competent evidence of record establishing that the Veteran’s migraine headaches began during service or are otherwise related to his service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection for migraine headaches is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.