Citation Nr: 21009518 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-02 726 DATE: February 22, 2021 ORDER New and material evidence having not been received, the application to reopen the previously denied claim of entitlement to service connection for a seizure disorder is denied. Entitlement to service connection for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for migraines is remanded. FINDINGS OF FACT 1. A September 1995 rating decision denied service connection for a seizure disorder. Following receipt of the Veteran’s October 1995 notice of disagreement, a Statement of the Case was issued in October 1995, but the Veteran did not thereafter perfect a timely appeal nor was new and material evidence received within the remainder of the appeal period. 2. The additional evidence received since the final September 1995 rating decision is cumulative and/or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a seizure disorder. 3. The preponderance of the evidence is against finding that the Veteran currently has a TBI which began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The September 1995 rating decision denying service connection for a seizure disorder is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1995). 2. New and material evidence has not been received to reopen the previously denied claim of service connection for a seizure disorder. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for TBI have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from September 1974 to July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which determined that new and material evidence had not been received to reopen a previously denied claim of service connection for a seizure disorder; denied service connection for TBI; and determined that new and material evidence had not been received to reopen a previously denied claim of service connection for migraines. As set forth above, in the October 2014 rating decision, the RO characterized the claim for service connection for migraine as a request to reopen a previously denied claim. A review of the record, however, indicates that the claim of service connection for migraine was not previously denied. As the RO reopened the claim and considered it on the merits, the Board finds no prejudice to the Veteran in proceeding to consider the claim on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In February 2018, the Veteran testified at a Board videoconference hearing. In August 2020, the Board notified the Veteran that it was unable to produce a hearing transcript because of audio malfunctions. The Board offered the Veteran the opportunity to testify at another Board hearing. He was advised that unless he responded within 30 days, the Board would assume that he did not desire another hearing. Having received no response to the letter, the Board will proceed with consideration of the appeal based on the evidence of record. 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a seizure disorder. In general, decisions of the RO that are not appealed in the prescribed time period are final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. “New” evidence is existing evidence not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed” unless it is inherently incredible or beyond the competence of the witness). Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The Veteran’s service treatment records are negative for complaints or findings of a seizure disorder. In connection with his July 1975 military separation medical examination, the Veteran underwent a neurological evaluation and the results were normal, with no finding of a seizure disorder. The post-service record includes VA clinical records showing that in September 1988, more than 13 years after service separation, the Veteran reported that he had had a seizure the previous year and had been prescribed Dilantin which he took off and on as needed. The impression was possible seizures by history. Subsequent private clinical records show continued reports of seizures. In September 1991, the Veteran sought treatment for respiratory symptoms. He also reported a history of a seizure disorder but the examiner noted that the diagnosis was somewhat equivocal. In July 1992, the Veteran was seen at a private facility in connection with his complaints of abdominal pain and vomiting. He also reported a history of a seizure disorder for which he was supposed to be taking Dilantin. He was not aware of the cause of his seizures, however. The diagnosis was alcoholic hepatitis. In January 1994, the Veteran was again seen at a private facility where he reported a long history of seizures, typically three to four monthly. Examination was unremarkable. The assessment was seizure secondary to subtherapeutic Dilantin. In February 1994, the Veteran was diagnosed as having seizures, probably complex partial. In January 1995, the Veteran submitted a claim of service connection for seizures. He claimed that he had had seizures within one year of military discharge. He was afforded a VA medical examination in September 1995 at which he reported that he did not develop seizures until after service separation. He also reported that his mother had seizures and was taking Dilantin. The assessments included seizure disorder with moderate control by history. The examiner noted that it had been difficult to elicit a comprehensive history from the Veteran and that some of the diagnoses on examination may therefore be conjectural. At a September 1995 VA neurological examination, the Veteran reported developing a seizure disorder approximately one year after service. The impressions included seizure disorder, most likely complex partial seizure. A September 1995 rating decision denied the Veteran’s claim of entitlement to service connection for seizure disorder, finding that the condition neither occurred in nor was caused by service, nor was it shown to have manifested to a compensable degree within one year of separation. The Veteran was duly notified of the RO’s decision and his appellate rights in a September 1995 letter. In October 1995, he submitted a notice of disagreement. A Statement of the Case was issued later that month. The Veteran, however, did not perfect a timely appeal nor was new and material evidence received within the applicable time period. Thus, the September 1995 rating decision is final and not subject to revision on the same factual basis. In this appeal, the Veteran seeks to reopen his claim of service connection for a seizure disorder. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in September 1995. After reviewing the record, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim. With regard to seizure disorder, evidence added to the record since the September 1995 rating decision includes the following: A November 26, 1987 private treatment record indicates the Veteran complained of having had a seizure on Thanksgiving, which was witnessed by family. The Veteran reported a history of seizures and a head injury in 1973 from boxing, however he had had a normal EEG at the time. He denied drug or alcohol abuse/use, although lab results showed large amounts of cocaine and THC. A neurologic examination of the Veteran was normal. He was diagnosed with probable seizure, rule out underlying seizure disorder and/or drug abuse. A November 27, 1987 private treatment record diagnosed the Veteran with suspect seizure disorder and positive family history for seizures. The attending physician questioned other contributing causes to the Veteran’s seizures, specifically sleep deprivation, illness and alcohol use. A December 1987 emergency room report notes the Veteran’s reports of having had a major motor seizure on Thanksgiving, as well as another seizure a year prior. The attending physician noted the Veteran had a family history of seizures and possible history of alcohol and drug abuse/use. An EEG was performed which was normal. The Veteran was diagnosed with seizure disorder, possible drug abuse. A September 1988 VA treatment record notes the Veteran’s reports of having “a shaking of [the head] all the time” and a previous seizure on Thanksgiving. The attending physician observed no abnormal movements and diagnosed seizure by history. The physician indicated that old medical records were necessary to determine a diagnosis and etiology. An October 1988 VA treatment record indicates the Veteran complained of seizures and was diagnosed with possible seizure disorder. The Veteran was scheduled to undergo an EEG to determine etiology; however, VA treatment records dated December 1988, August 1989, March 1990 and December 1990 indicates the Veteran failed to appear for the scheduled EEG. A September 1990 VA treatment record notes the Veteran’s denial of seizures, but reports of dizziness. The Veteran was referred to a neurology clinic, which noted that, despite his history of witnessed seizures, he CT and EEG had been negative. The Veteran was diagnosed with possible drug withdrawal, possible sinusitis and overmedicated seizure disorder. A September 1995 VA treatment record notes the Veteran’s claim of a seizure disorder since 1976. A January 1997 private treatment record diagnosed the Veteran as having a seizure secondary to subtherapeutic Dilantin. A February 1997 VA examination noted the Veteran reported a history of seizures for the previous five to 15 years. The examiner diagnosed probable partial complex seizure with secondary generalization and recommended the Veteran undergo an MRI of the brain. A February 1997 VA examination diagnosed the Veteran with probable partial complex seizure with secondary generalization. A May 2014 statement from the Veteran, in which he linked his seizures to a head injury during training on a howitzer. An October 2014 VA examination noted the Veteran’s previous diagnoses of essential tremor in a September 1995 report of medical examination for disability evaluation, and neurotic tic in service in 1973. The examiner ultimately determined that the Veteran did not have a current central nervous system and neuromuscular disease. After considering the record in its entirety, the Board finds that the evidence received since the final September 1995 rating decision is cumulative and/or does not raise a reasonable possibility of substantiating the service connection claim for a seizure disorder. In this regard, the Board is mindful of the low threshold for reopening a previously-denied claim. Shade, 24 Vet. App. at 110. However, the additional evidence received continues to document reports of a post-service seizure disorder, information which was of record and considered by the RO at the time of the September 1995 rating decision. The additional evidence, however, does not suggest an etiological link between the Veteran’s post-service seizures and his service. In fact, the additional evidence tends to suggest other etiological factors for the Veteran’s seizure disorder, including a family history of seizures, drug and alcohol abuse, illness, sleep deprivation and under- or over-use of seizure medication. Regarding the Veteran’s lay allegations of a relationship between the claimed seizure disability and an in-service head injury from a howitzer during service, this information was similarly of record and considered by the RO at the time of the September 1995 rating decision. For example, in September 1995 reports of medical examination for disability evaluation, he complained of seizures, which he reported were caused by “shooting them big guns” and a head injury while in service. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Consequently, the Board concludes that the evidence received since the final September 1995 rating decision is not new and material and does not serve to reopen the Veteran’s service-connection claim. And inasmuch as he has not fulfilled this threshold burden of submitting new and material evidence to reopen this finally-disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Entitlement to service connection for TBI is denied. The Veteran seeks service connection for TBI. He claims that he sustained a head injury while training on a Howitzer during service. See May 2014 Statement in Support of Claim. Pre-service treatment records show that on August 17, 1973, the Veteran was seen in connection with his complaints of having been hit on the left side of his head while boxing two months prior. The impression was head injury although an EEG was performed and the results were normal. The Veteran’s service treatment records are negative for complaints or findings of a head injury or TBI. At his April 1974 enlistment examination, he denied a history of head injury and examination of his head and neurological system was normal. In February 1975, he complained of having headaches when he runs. In April 1975, he complained of being nervous in the head for a long time and having headaches all over his head. The Veteran described a fine tremor of the head aggravated by loud noise, anger or anxiety. He reported a long history of such symptoms and indicated that his grandfather had a history of the same symptoms. The Veteran did not, however, report a head injury, including from a Howitzer. The Veteran denied any other neurological complaints. Neurological examination was totally within normal limits. The impression was nervous tic. In May 1975, he reported that his nervous tic had persisted but his headaches had diminished. The examiner noted that the Veteran would return for a psychological evaluation. At his July 1975 discharge examination, the Veteran’s head and neurological system were examined and determined to be normal. In pertinent part, the post-service record shows that in November 1987, the Veteran sought treatment for a seizure. He reported a history of a head injury on August 17, 1983, from boxing but indicated that an EEG at the time had been normal. [It appears that this is a typographical error as the examiner noted that he had reviewed the report from Dr. T.; as set forth above, that report is dated August 17, 1973]. The Veteran did not report a history of an in-service head injury from a Howitzer. He also denied drug or alcohol abuse/use; however, lab results showed large amounts of cocaine and THC. A neurologic examination of the Veteran was normal. He was diagnosed with probable seizure, rule out underlying seizure disorder and/or drug abuse. In a May 2014 statement, the Veteran indicated that his seizures were linked to a head injury during training on a howitzer. The Veteran was afforded a VA central nervous system examination in October 2014. The Veteran reported that his head started shaking in service. He thought it started when he put on ear plugs to avoid noise. He indicated that after service, his head tremor came and went. He was unable to provide the frequency of his tremors. In reviewing the record on appeal, the examiner noted that the Veteran been diagnosed as having a neurotic tic in 1973 and that post-service treatment records had noted a seizure disorder. Neurological examination, however, was normal. The Veteran exhibited normal speech, gait, strength, and reflexes. The examiner indicated that there were no other pertinent physical findings. After examining the Veteran, reviewing the record, and considering his reported medical history, the examiner concluded that there was no current diagnosis of any central nervous system disorder. The examiner indicated that the current status of the Veteran’s head tremor was unclear. He noted that the Veteran reported that he still had it, although it was not as bad as before and he was unable to provide information regarding its frequency and there was no relevant medical documentation. Applying the facts in this case to the applicable legal criteria, the Board finds that the preponderance of the evidence is against the claim. As a preliminary matter, the Board finds that the most probative evidence reflects that the Veteran did not sustain a TBI during active duty. Although the Veteran claims that he sustained a head injury during active duty while training on a Howitzer, as set forth above, his service treatment records contain no indication of an in-service TBI or head injury. The Board notes that service treatment records reflect that the Veteran was seen on multiple occasions in 1975 in connection with complaints such as headaches and a head tremor. The Veteran, however, did not report a head injury on any of those occasions, did not date the onset of his symptoms to a head injury, nor did he otherwise attribute his symptoms to a head injury. Rather, he indicated that his symptoms had been present for a long time, developed when he ran, and were aggravated by noise, anger or anxiety. The Board finds that had the Veteran sustained a head injury which had produced symptoms, including a headache, he would have reported it in 1975, given the nature of his complaints and the examinations. Kahana v. Shinseki, 24. Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that 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 (citing Fed. R. Evid. 803 (7))); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board further finds that the post-service clinical evidence strengthens its conclusion that the Veteran did not sustain a TBI or head injury during active duty. For example, a November 1987 private treatment record indicates that when the Veteran sought treatment for a seizure, he reported a history of a head injury in 1973 from boxing, prior to service. He did not, however, report an in-service head injury at that time. Again, the Board finds that had the Veteran sustained a head injury during service, he would have reported it in 1987, when he reported his history of a pre-service head injury. Kahana, 24 Vet. App. at 440; AZ, 731 F.3d 1303. Finally, the Board notes that the service treatment records show that at his service separation examination, the Veteran’s head and neurological system were examined and determined to be normal, with no indication of a TBI. In addition to the lack of in-service evidence of a TBI or a head injury, the Board finds that the post-service clinical record on appeal contains no indication of any current TBI which is associated with service. The Board notes that the Veteran was not afforded a VA TBI examination in connection with his claim. The Board finds, however, that an examination is not necessary in the absence of probative evidence of an in-service injury or of a post-service TBI disability which may be associated with service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To the extent the Veteran asserts that he currently has a TBI, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). In this case, the Veteran’s assertions as to diagnosis and etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-9; Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In summary, the Board finds that the preponderance of the evidence is against finding that the Veteran currently has a TBI which began during active service, or is otherwise related to an in-service injury or disease. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for migraines is remanded. The Veteran seeks service connection for migraines. As set forth above, the Veteran’s service treatment records note complaints of headaches on several occasions. In February 1975, the Veteran complained of headaches when he ran. In April 1975, he complained of “[headache] all over head.” In May 1975, the Veteran reported his headaches had diminished. At the Veteran’s separation examination, no diagnoses or complaints of any headache condition were recorded. The Veteran’s post service treatment records document a current diagnosis of a headache disability. Of note, the Veteran underwent a VA examination in February 1997, in which the examiner diagnosed most likely migraine-type headache; however, the examiner determined that intracranial pathology needed to be ruled out, as the Veteran had symmetrical facial, sensory and motor findings without deficit. The Veteran underwent another VA examination in October 2015. The examiner diagnosed migraine including migraine variants, and found that the condition is less likely than not related to the Veteran’s service. The examiner, however, failed to provide an adequate rationale for the opinion. As a result, an additional medical opinion is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed migraines. Access to the Veteran’s claims file should be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should provide opinions, with supporting rationale, as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that any current migraine disability had its inception during active duty, as evidenced by his 1975 complaints of headaches. (b) If not, is it at least as likely as not that any current migraine disability was manifest to a compensable degree within one year of the Veteran’s separation from active duty? (c) If not, is it at least as likely as not that any current migraine disability otherwise causally related to an in-service disease or injury, to include the headaches noted in 1975? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, 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.