Citation Nr: 1749119	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  08-08 135	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a seizure disorder.


REPRESENTATION

Appellant represented by:	Marc Whitehead, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. R. Fletcher


INTRODUCTION

The Veteran served on active duty from June 1983 to February 1990.  She had a prior period of inactive duty from November 1982 to June 1983.

This appeal is before the Board of Veterans' Appeals (Board) from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In July 2010, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript of the hearing is in the record.  In August 2015 correspondence, the Board advised the Veteran that the VLJ who conducted the Travel Board hearing was no longer with the Board, and informed her that she was entitled to another hearing if she desired.  The letter also informed her that the Board would assume she did not desire another hearing if she did not respond to the letter within 30 days.  As a response has not been received from the Veteran to date, the Board is proceeding accordingly. 

This case has a long procedural history.  In pertinent part, service connection for a seizure disorder was denied in a June 2012 Board decision.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).   

In June 2013, the Court issued an order that granted a Joint Motion for Remand (JMR) filed by counsel for both parties, vacated the Board's June 2012 decision and remanded the claim for service connection for a seizure disorder to the Board for additional action.

Thereafter, this matter was before the Board in September 2013, October 2015, June 2016, April 2017 and June 2017 when it was remanded for additional development.



FINDING OF FACT

The most credible and competent evidence does not support the conclusion that a seizure disorder had its onset in service or within one year of service separation, or that current seizure disorder is related to active military service.


CONCLUSION OF LAW

A seizure disorder was not incurred or aggravated in service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The requirements of the Veterans Claims Assistance Act have been met in this case.  See 38 U.S.C.A. §§ 5103, 5103A.  The required notice was provided to the Veteran via letter in August 2005.  The Veteran has not identified any defect in this notice or claimed any prejudice as a result.

VA has also fulfilled its duty to assist the Veteran in developing her claim. The Veteran's service treatment records (STRs) and post-service VA, Social Security Administration (SSA) and private medical records have been obtained and associated with the claims file.  Neither the Veteran nor her attorney has identified any other outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  VA also assisted the Veteran by providing her with a VA examination in November 2014 and obtaining addendum opinions in August 2016, June 2017 and August 2017.

Thus, the Board finds that VA has satisfied its duties to notify and assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim.

II.  Legal Criteria for Service Connection

Service connection may be established for a disease or injury incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Hickson v. West, 12 Vet. App. 247 (1999).

Certain chronic diseases, such as organic diseases of the nervous system, are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from 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.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 

For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service.  If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).

After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

III.  Factual Background and Analysis

The Veteran maintains that her seizure disorder first manifested during service.  See July 2010 hearing transcript.

STRs show that in February 1987, the Veteran complained of dizziness and headaches.  There were no objective findings and no diagnosis of a seizure disorder.  The record also does not indicate that any referral to a neurologist occurred.  In November 1987, the Veteran again complained of dizziness.  No diagnosis of any seizure disorder or any neurologic disorder was made; again, no referral to a neurologist was noted.  The Veteran complained of headaches in March 1988.  She was diagnosed with simple astigmatism.  A report of medical history dated in July 1988 shows that the Veteran answered "no" to dizziness or fainting spells and "no" to having frequent or severe headaches.  An eye examination in August 1988 shows that she complained of headaches followed by blurred vision.  An undated regular check-up examination, most likely in 1989 as the Veteran's reported age was 24 and she was born in 1965, revealed a clinically normal neurologic system; no seizures or head injuries were noted.  A November 1989 report of medical history shows that the Veteran answered "no" to dizziness or fainting spells and "no" to having frequent or severe headaches.  A 1989 separation examination also revealed a clinically normal neurologic system; again, no seizures or head injuries were noted.  There is no indication in any of the Veteran's STRs that she had symptoms associated with a seizure disorder or that she was diagnosed with a seizure disorder. 

According to post-service medical records, a record dated in February 2003 shows that the Veteran complained of having some dizziness.  In September 2003, the Veteran complained of headaches and dizziness; no diagnosis of a seizure disorder was made at that time.  The first diagnosis of a seizure disorder was in December 2003 when the Veteran was shown to have a history of seizures.  One record dated in December 2003 reveals that the Veteran reported a six month history of constant noise in the right ear and spells of dizziness and mental confusion and imbalance.  

Partial seizures were suspected in a January 2004 clinical record.  The Veteran's February 2004 SSA benefits application shows that she reported that the onset date of her seizure disability was in January 2004; no in-service symptoms were reported.  An EEG in March 2004 showed findings indicative of clinical seizures, which could be partial or complex seizures.  A VA treatment record dated in May 2004 shows that the Veteran reported having no problems on active duty.  She reportedly had an automobile accident in 1983 that resulted in a skull fracture.  In June 2004, the Veteran reported that she was diagnosed with a seizure disorder in November 2003.  Another record dated in June 2004 shows that the skull fracture was incurred at the age of 18; she did not receive medical care.  That record indicates that the Veteran reported that the diagnosis of a seizure disorder followed two seizures that occurred in September 2003 and October 2003.  A seizure questionnaire in connection with the claim for SSA disability benefits dated in November 2004 indicates that the Veteran reported that the approximate date of her first seizure was in September 2003.  Again, she did not report experiencing any symptomatology in service. 

A March 2005 VA neurology consultation reveals the Veteran's history of a closed head trauma in 1983 and the manifestation of epilepsy three years earlier (2002).  A neurology clinic follow-up dated in July 2005 again shows that the Veteran's epilepsy manifested in 2002.  The Veteran's seizures were opined to be secondary to the 1983 closed head trauma in December 2005 and August 2006.  In October 2006, the Veteran was reported to have a longstanding history of partial seizures since the 1983 closed head trauma.  However, another record in October 2006 indicates that she only had a three year history of seizures.  The February 2008 SSA decision awarding disability benefits shows that the Veteran testified that she had seizures prior to her diagnosis in November or December 2003; the decision does not indicate how early her seizures began.
 
At the July 2010 Board hearing, the Veteran denied having any head trauma in service but stated that her symptoms of a seizure disorder first began in service with episodes of dizziness and disorientation during basic training.  She stated that she reported to sick call for these symptoms.  She testified that her seizure disorder was diagnosed in 2003.  She testified that she reported to sick call in service for her symptoms; however, no one in service took her complaints seriously and nothing was done  The Veteran stated that she first found out that she had her first real seizure in 2003.  

A November 2014 VA seizure disorder examination report notes the Veteran's history of seizures diagnosed by a private physician in 2003.  Her seizures were characterized by tonic-clonic convulsions, episodes of unconsciousness and staring, hallucinations and abnormalities of memory.  The examiner reviewed the claims file and noted that Veteran reported that when she was in high school in 1983, she was in a motor vehicle accident and sustained a head injury.  She stated that she may have lost consciousness for a brief period of time, but was not hospitalized for any injuries.  The examiner stated that there was no medical information related to this head injury in the record.  The examiner also stated that while the evidence shows that the Veteran was "seen once (date not clear) for dizziness of 3 days" and once by optometry for headaches in service, there was no medical evidence of a head injury or seizures in service.  The examiner opined that the symptoms of dizziness and headaches noted in service did not have any relationship to the seizures diagnosed in the 2002/2003 period.  Review of the STRs show that the examiner's discussion of the Veteran's complaints in service is inaccurate and ignores several other noted complaints.  Therefore, another VA nexus opinion was requested.

In August 2016, a VA medical examiner reviewed the Veteran's file and concluded that the seizure disorder was less likely than not incurred in or caused by service.  In this regard, the examiner stated that "there is no evidence that the Veteran suffered seizure activity while in active duty."  The examiner failed to assess any of the Veteran's lay statements regarding her in-service headaches, dizziness and blurred vision as early manifestations of the seizure disorder.  Therefore, another medical opinion was requested.

In June 2017, a VA examiner again concluded that the Veteran's seizure disorder was less likely than not incurred in or caused by service.  The examiner noted that STRs "do show that she was seen at one time for dizziness and they thought it was a middle ear condition, and another time she was seen for headaches and blurry vision, which they thought was an eye condition.  There is no documentation that there was any suspicion that she was having an underlying seizure disorder and no documentation of seizure activity while in the service."  The examiner concluded that the Veteran's "symptoms of headaches, dizziness, and blurry vision are non-specific, and it is less likely than not that her seizure disorder is etiologically related to those complaints."  Because the specific recitation of the evidence considered only the Veteran's in-service complaints of dizziness in November 1987 and her complaints of headaches in August 1988 (incorrectly identified as being dated August 1986), and not the Veteran's complaints of headaches and dizziness in February 1987 and her headache complaints in March 1988, the case was remanded to obtain a medical opinion based on consideration of the entire record.

An August 2017 medical opinion from a VA neurologist notes that the entire claims file, to include STRs, was reviewed and the Veteran was examined.  The Veteran reported that the first time she passed out was in 1985 in front of her mother and sister.  She was taken to the hospital but no records of this visit are available.  When the neurologist asked the Veteran why she did not report her passing out spell of 1985 she stated that she was afraid that she would have been discharged from service if she reported a fainting episode.  The neurologist noted that a one-time complaint of dizziness in service was believed to be a middle ear condition.  When she was seen for headaches and blurry vision, it was believed to be due to an eye condition.  He also noted that the Veteran denied head injury, dizziness, fainting spells and any injury or major illness in November 1989, just prior to separation.  Epilepsy was not diagnosed until 2003.  The VA neurologist concluded that the Veteran's psychomotor epilepsy with seizures is less likely than not (less than 50 percent probability) related to her military service.  

Based on a review of the evidence, the Board finds that service connection for a seizure disorder is not warranted. Although the Veteran has been diagnosed post-service with a seizure disorder (epilepsy), the evidence fails to show that it is related to her military service.  

The Veteran's STRs and her own statements reflect that she experienced dizziness, headaches and blurred vision in service.  These facts are not in dispute.  However, the evidence does not indicate that the Veteran was diagnosed with a seizure disorder in service or within one year of her leaving active duty in so as to warrant service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309.  A seizure disorder was not diagnosed until 2003, many years after service.

Second, although the Veteran complained of dizziness, headaches and blurred vision in service, the objective evidence fails to show that these complaints were symptoms of her currently diagnosed seizure disorder.  In this regard, the Board observes that the examinations in service, including a 1989 discharge examination, revealed a clinically normal neurologic system.  Moreover, the August 2017 medical opinion from a VA neurologist finds no link between these complaints and the seizure disorder diagnosed many years after service.  Reasons and bases for the opinion were provided, as noted above, and there is no medical evidence to the contrary.  Likewise, the August 2017 VA opinion also finds no nexus between service and the Veteran's current seizure disorder.  Again, the VA neurologist thoroughly reviewed the claims file is supported by sound medical rationale.  It provides compelling evidence against the Veteran's claim.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion").

Consideration has also been given to the arguments made by the Veteran.  However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, opinions as to the etiology and onset of a seizure disorder, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  A seizure disorder is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that diagnostic testing and other specific findings are needed to properly assess and diagnose this disorder.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).

That is, although the Board readily acknowledges that the Veteran is competent to report symptoms of seizures, there is no indication that she is competent to etiologically link her symptoms to service, to include symptoms experienced therein.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that she has received any special training or acquired any medical expertise in evaluating such disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Accordingly, this lay evidence does not constitute competent evidence and lacks probative value.  

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt rule.  However, where the evidence of record preponderates against the finding that the Veteran's disability was caused or aggravated by her military service, the benefit of the doubt rule does not apply.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).



ORDER

Service connection for a seizure disorder is denied.




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s