Citation Nr: 1760299
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-19 918 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico

THE ISSUE

Entitlement to service connection for epilepsy, to include as due to an undiagnosed illness and secondary to posttraumatic stress disorder (PTSD).

REPRESENTATION

Veteran represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

S. A. Prinsen, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from July 1971 to March 1985 and the United States Army from January 2006 to May 2007. The Veteran received a Combat Action Badge, while serving in the United States Army.

This matter is before the Board of Veterans’ Appeal (Board) on appeal of a February 2013 rating decision of the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA).

In April 2017, the Veteran testified at a Board hearing. The transcript is of record.

FINDING OF FACT

The Veteran’s epilepsy has been shown to be casually related to his active duty.

CONCLUSION OF LAW

The criteria for service connection for epilepsy have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

As the Board is granting service connection for epilepsy, which constitutes a full grant of the benefit sought on appeal, a discussion of VA’s duties to notify and assist is not required.

II. Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) 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’ – the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service.
38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. See also, Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013).

In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Board can weigh the lay testimony and make a determination as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran contends he is entitled to service connection for epilepsy. He alleges that while on active duty he experienced what he refers to as “auras”. The Veteran described these “auras” as episodes of disorientation and confusion that lasted more than thirty minutes. The Veteran alleges these auras led to his initial seizure. The Veteran stated he reported the symptoms while in Iraq, but does not have copies of any documentation.

The Board acknowledges that the Veteran has a current disability, which is a listed “chronic disease” under 38 C.F.R. § 3.309(a). The VA treatment records reflect a diagnosis of epilepsy, specifically complex partial seizures with secondary generalization. Having carefully reviewed the record, the Board does not find that the seizure disorder manifested to a compensable degree within the first year after service. However, the Board does find that the record establishes that there is a continuity of symptoms shown after discharge. See 38 C.F.R. § 3.303(b).

Review of the Veteran’s service treatment records reveal that in April 2007, the Veteran reported three episodes of feeling incoherent, which lasted for an hour. He further reported that during these episodes he felt that his thought process was gone and he was unable to spell. The Veteran stated that he did not seek treatment when these episodes occurred. See STR – Medical September 2014.

The Veteran underwent VA examinations in January 2013 and 2016. Both VA examiner’s opined that the Veteran’s seizures were less likely than not (less than 50 percent probability) incurred in or aggravated by service. The VA examiner in 2013 stated that medical research has not established a causal relationship between seizure disorders and specific exposures experienced by military personnel in southwest Asia. The VA examiner in 2016 opined that it is less likely than not that Veteran’s seizure disorder “has its origin in non-evaluated episodes of being unable to type or spell for one hour each.” See Capri June 2017.

The Veteran’s VA treatment records from 2010 through 2014 show that the Veteran suffered from tonic clonic seizures as well as automatisms of the left hand and he required seizure medication to control his symptoms. These records are indicative of the Veteran’s symptoms throughout the appeal period. The Veteran also submitted statements from his friend and his wife, who witnessed the Veteran’s seizure activity. The friend reported that the Veteran experienced episodes of dizziness as indicated by the Veteran’s unsteady balance and need to sit down. The friend’s wife reported incidents where the Veteran’s hands and mouth would move uncontrollably, after which he was disoriented. The Board finds the Veteran’s friend and wife are competent to describe observable symptoms pertaining to the Veteran’s seizure disorder and therefore their statements are probative. Jandreau, 492 F.3d 1372.

The evidence of record does not establish that the Veteran’s seizure disorder was chronic during service or manifested to a compensable degree within the first year post-service. However, the Board finds that the record establishes a continuity of symptomology as evidenced through the Veteran’s VA treatment records, the Veteran’s own statements, and the statements from his friend and his wife. As such, service connection for epilepsy is warranted. The Board notes that as service connection is being granted on a direct basis, there is no need for a discussion of service connection based on undiagnosed illness or as secondary to PTSD.

ORDER

Entitlement to service connection for epilepsy is granted.

____________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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