Citation Nr: 21022185 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 20-15 153 DATE: April 15, 2021 ORDER Service connection for a seizure disorder is denied. REMANDED Entitlement to service connection for a chronic headache disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The Veteran does not have a seizure disorder. CONCLUSION OF LAW The criteria for service connection for a seizure disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 2005 to July 2005, and from December 2006 to November 2007, to include service in Southwest Asia. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic disabilities, including organic diseases of the nervous system such as a seizure disorder, may be presumed to be service connected if they become manifest to a compensable degree within a specified period of time postservice (one year for organic diseases of the nervous system). 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). For such disease, service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). The Veteran filed a service connection claim for a seizure disorder, which was denied by a July 2017 rating decision. The Veteran asserts that he has a seizure disorder due to his active service. The Veteran’s STRs from his active service show in April 2005, May 2005, and August 2008, he denied having seizures. In October 2008, he reported having two seizures. In November 2008, he was noted to have a history consistent with a seizure disorder. After the Veteran’s separation from active service, his medical records do not show any treatment or diagnosis for a seizure disorder. In July 2017, the Veteran was afforded a VA examination. The Veteran reported having seizures that started in 2008 and that his last seizure was in 2010. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran did not have a current diagnosis of a seizure disorder as the condition resolved. The Veteran has not submitted any probative medical evidence supporting his assertion that he has a current seizure disorder. While the Veteran asserts that he has a seizure disorder, the diagnosis of such a disability requires clinical testing and medical expertise and cannot simply be diagnosed by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to diagnose a seizure disorder or relate this condition to any incident during his active service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, there is then no need to address whether his statements in this regard are also credible. Id. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here the Veteran has not shown by medical evidence the presence of a seizure disorder. Nor does the evidence establish functional impairments that would suggest a disability even in the absence of a diagnosis. See Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018). As such, the claims file does not show any treatment or diagnosis for a seizure disorder since the Veteran’s separation from active service; in the absence of objective indications of a disorder, the Board finds that service connection is not warranted. Accordingly, as the criteria for service connection for a seizure disorder have not been met, the claim is denied. REASONS FOR REMAND Regarding the Veteran’s service connection claim for a chronic headache disorder, the Veteran asserted that he had a headache disorder due to his active service or due to his service-connected posttraumatic stress disorder (PTSD). The Veteran’s STRs show that he reported having headaches during his active service in May 2005, October 2007, and June 2008. In July 2017, the Veteran was afforded a VA examination. However, the examiner did not offer an opinion regarding direct service connection. In addition, the Veteran recently submitted a medical article discussing the relationship between PTSD and headaches. Regarding the Veteran’s service connection claim for OSA, the Veteran asserted that his OSA was due to his active service or due to his service-connected PTSD. In April 2017, the Veteran was afforded a VA examination. While the examiner opined that the Veteran’s OSA was less likely than not due to his active service, the examiner reported that PTSD could aggravate OSA. In addition, the Veteran recently submitted medical articles discussing the relationship between mental disorders and OSA. As such, a remand is necessary to properly develop the service connection claims. The matters are REMANDED for the following action: 1. Obtain a medical opinion to address the nature and etiology of any current headache disorder and OSA. Only if opinions cannot be provided without a physical examination should the AOJ arrange for a physical examination. The VA examiner should provide the following opinions: a. Is it as least as likely as not (50 percent probability or greater) that any chronic headache disorder and/or OSA either began during or was otherwise caused by the Veteran’s active service, to include his service in Southwest Asia? Why or why not? The examiner should discuss the Veteran’s STRs showing his complaints of headaches during his active service. b. Is it least as likely as not (50 percent or greater) that any chronic headache disorder and/or OSA was caused by the Veteran’s service-connected PTSD? Why or why not? The examiner should consider the findings of the previous April 2017 VA examiner and the medical articles submitted by the Veteran. c. Is it at least as likely as not (50 percent or greater) that any chronic headache disorder and/or OSA was aggravated by the Veteran’s service-connected PTSD? Why or why not? The examiner should consider the findings of the previous April 2017 VA examiner and the medical articles submitted by the Veteran. If aggravation is found, the examiner should identify the baseline level of severity of the chronic headache disorder and/or OSA before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the chronic headache disorder and/or OSA. 38 C.F.R. § 3.310. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.