On appeal from the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona
THE ISSUE
Entitlement to service connection for a seizure disability.
REPRESENTATION
Veteran represented by: Peter J. Meadows, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Barone, Associate Counsel
INTRODUCTION
The appellant in this case is a Veteran who had active duty
service from January 1943 to June 1944.
This matter comes before the Board of Veterans Appeals
(Board) on appeal from a July 1999 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA).
In a December 2001 decision, the Board reopened the Veteran's
claim of service connection for a seizure disorder and then
denied the claim on the merits. The Veteran then appealed
the Board's decision to the United States Court of Appeals
for Veterans Claims (hereinafter, 'the Court'). In a
December 2002 Order, the Court vacated the Board's December
2001 decision and remanded the case to the Board for
compliance with the instructions included in the December
2002 Joint Remand. Subsequently, in November 2003 and
September 2004, the Board remanded the matter.
In August 2005, the Board again denied the issue on appeal.
The Veteran appealed the Board's August 2005 denial of
service connection for seizure disorder to the Court. By
Order dated July 26, 2006, the Court vacated the Board's
August 2005 denial of service connection for seizure disorder
and remanded this matter to the Board for compliance with the
instructions included in the July 2006 Joint Remand. In
December 2006, the Board remanded the case for additional
development of the evidence. The Board has since solicited
an independent medical expert (IME) opinion to complete
development of the evidence to decide this case; the
resulting February 2009 IME opinion addressing key questions
in this appeal is now of record and has been considered in
this decision.
The Veteran testified at an RO hearing in April 2000 and at a
Board videoconference hearing in June 2001.
FINDINGS OF FACT
1. The Veteran's chronic seizure disorder was not noted upon
his entrance to military service.
2. The Veteran manifested a seizure disorder during service.
3. The evidence does not clearly and unmistakably
demonstrate that the Veteran's seizure disorder did not
increase in severity during service.
CONCLUSIONS OF LAW
1. The presumption of soundness applies, and is not
rebutted, regarding a seizure disorder. 38 U.S.C.A. § 1111
(West 2002); 38 C.F.R. § 3.304 (2008).
2. A seizure disorder was incurred in the Veteran's active
duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38
C.F.R. § 3.303, 3.304(b) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board acknowledges the Veterans Claims Assistance Act of
2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002). Under the VCAA, VA has a duty to notify the veteran
of any information and evidence needed to substantiate and
complete a claim, and of what part of that evidence is to be
provided by the claimant and what part VA will attempt to
obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187
(2002). In light of the favorable decision as it relates to
the issue of entitlement to service connection for a seizure
disorder, no further discussion of VCAA is necessary at this
point.
Analysis
This appeal involves a claim of service connection for a
seizure disorder. Applicable law provides that service
connection will be granted if it is shown that the veteran
suffers from disability resulting from an injury suffered or
disease contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service. 38
U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred
in service alone is not enough; there must be chronic
disability resulting from that injury. If there is no
showing of a resulting chronic disability during service,
then a showing of continuity of symptomatology after service
is required to support a finding of chronicity. 38 C.F.R.
§ 3.303(b). Service connection may also be granted for any
disease 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).
VA law provides that a veteran is presumed to be in sound
condition, except for defects, infirmities or disorders noted
when examined, accepted, and enrolled for service, or where
clear and unmistakable evidence establishes that an injury or
disease existed prior to service and was not aggravated by
service. 38 U.S.C.A. §§ 1111, 1132, 1137.
The presumption of soundness attaches only where there has
been an induction examination during which the disability
about which the veteran later complains was not detected.
See Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The
regulations provide expressly that the term "noted" denotes
"[o]nly such conditions as are recorded in examination
reports," 38 C.F.R. § 3.304(b), and that "[h]istory of
preservice existence of conditions recorded at the time of
examination does not constitute a notation of such
conditions." Id at (b)(1).
For purposes of illustrating the analysis to be used in such
cases, the Board notes the decision of the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) in Wagner
v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1,
2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims
for service-connected disability:
When no preexisting condition is noted upon entry
into service, the veteran is presumed to have been
sound upon entry. The burden then falls on the
government to rebut the presumption of soundness by
clear and unmistakable evidence that the veteran's
disability was both preexisting and not aggravated
by service. The government may show a lack of
aggravation by establishing that there was no
increase in disability during service or that any
"increase in disability [was] due to the natural
progress of the" preexisting condition. 38
U.S.C.A. § 1153. If this burden is met, then the
veteran is not entitled to service- connected
benefits. However, if the government fails to
rebut the presumption of soundness under section
1111, the veteran's claim is one for service
connection. This means that no deduction for the
degree of disability existing at the time of
entrance will be made if a rating is awarded. See
38 C.F.R. § 3.322.
On the other hand, if a preexisting disorder is
noted upon entry into service, the veteran cannot
bring a claim for service connection for that
disorder, but the veteran may bring a claim for
service-connected aggravation of that disorder. In
that case section 1153 applies and the burden falls
on the veteran to establish aggravation. See
Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.
1994). If the presumption of aggravation under
section 1153 arises, the burden shifts to the
government to show a lack of aggravation by
establishing "that the increase in disability is
due to the natural progress of the disease." 38
U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen,
19 F.3d at 1417.
Wagner, 370 F.3d at 1096.
Effective May 4, 2005, VA amended its regulations at
38 C.F.R. § 3.304(b) to reflect a change in the
interpretation of the statute governing the presumption of
sound condition. The final rule conforms to Federal Circuit
precedent Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004),
and applies to claims, which were pending on or filed after
May 4, 2005. As the Veteran's case was pending as of that
date, the amendment applies.
In the case at hand, the Board notes that a history or
finding of epilepsy was not noted upon the Veteran's
enlistment examination dated in December 1942; nor was there
any notation otherwise regarding any seizure disorder or
other relevant disability. The induction examination report
includes a notation that the Veteran did not claim
"epilepsy" among other disorders. Physical examination
revealed no disorders of the nervous system. Since epilepsy
was not noted on the entrance examination, the Veteran is
entitled to the statutory presumption of soundness. The next
question to be considered, therefore, is whether there is
clear and unmistakable evidence to rebut the presumption.
The record includes copies of morning reports which appear to
document medical treatment in March 1944. Service treatment
records further reveal that the Veteran was admitted to a
military medical facility in May 1944. The chief complaint
was reported as intermittent rare convulsions since 13 years
of age, about once a year. Under a section for reporting
injuries, it was expressly noted that there was no history of
head injury. Service treatment records further detail the
Veteran's history as 'attacks of unconsciousness with
convulsions since age of 13 years occurring about once a
year.' It was noted that no warning preceded these attacks.
It was reported that the Veteran would fall to the ground,
have tonic and clonic convulsions for about a minute and that
this was followed by 20-30 minutes of stupor and then the
Veteran falls in to a deep sleep for several hours. It was
reported that the Veteran had had two attacks since entering
the service with the second occurring March 13, 1944, when he
was seen by a Captain Falk, his medical officer. During the
course of the military hospitalization, physical examination
was essentially negative as was an electroencephalogram. The
reported diagnosis was epilepsy, grand mal, idiopathic. A
Board of Medical Officers reviewed the Veteran's medical
records and determined that the Veteran was unfit for service
because of epilepsy, idiopathic, grand mal type. The Board
of Medical Officers further concluded that the disqualifying
disability was not incurred in service but existed prior to
induction and was not aggravated by service. The June 1944
Report of Board of Medical Officers noted that the Veteran
had been under observation by one or more members of the
Board of Medical Officers for 19 days.
Even assuming that the evidence may clearly and unmistakably
show that the Veteran had a seizure disorder pre-existing
service, the decisive aspect of this case is the conflicting
nature of the significant evidence concerning whether any
such pre-existing seizure disorder was permanently aggravated
during service beyond the natural progress of the pathology.
The presumption of soundness is not rebutted merely by the
showing that the injury preexisted service. As set forth in
VAOPGCPREC 3-2003, the law does in fact require that there
must also be clear and unmistakable evidence that the
disability was not aggravated during service in order to
rebut the presumption of soundness. In this case, the
evidence addressing this question is critically mixed and
contradictory, and thus the evidence does not clearly and
unmistakably show that such a seizure disorder was not
permanently aggravated during service.
One of the main arguments advanced by the Veteran is that the
severity of his seizure disorder is significantly related to
a head injury allegedly suffered when he fell off of a truck
in-service. The Veteran provided a history for his January
2005 VA examination in which he described that the 1944 in-
service seizure occurred after an injury to the head. The
Board observes that pertinent service treatment records dated
in June 1944 include a specific notation that there was no
history of a head injury. However, the record also includes
several statements from fellow servicemen, some of which
include comments regarding their knowledge of such an injury
from recollections contemporaneous to the period in question.
Additionally, there is also a statement from Henry Falk,
M.D., dated in December 1998, in which he indicated that the
Veteran had relayed to him that he was treated by him when he
fell off a truck in England in March of 1944 and suffered a
seizure a short time later. Dr. Falk indicated that he did
not have any medical records and that his memory of the event
was a bit hazy; yet the Board does note that the service
treatment records appear to confirm that Dr. Falk treated the
Veteran at the time in question, and the Board observes that
Dr. Falk does not make any statement contradicting the
Veteran's account of head injury. In this regard, Dr. Falk's
statements reflects pertinent witness testimony that does not
clearly and unmistakably contradict the Veteran's account of
in-service head injury.
There are conflicting indications with regard to whether the
Veteran suffered a significant head injury during service.
While the contemporaneous evidence from the service treatment
records does not appear to be consistent with the Veteran's
account, when viewed in light of the Veteran's testimony and
other submitted evidence, there is some reasonably probative
suggestion that a head injury took place in service. The
Board finds that the aggregated evidence does not 'clearly
and unmistakably' demonstrate that the Veteran's documented
in-service seizure was not preceded by a head injury. The
Veteran's testimony, the reasonably consistent witness
statements submitted, and the fact that the doctor who
treated the Veteran for the seizure at the time in question
did not contradict the Veteran's account regarding a head
injury, have all been given careful consideration by the
Board. Although the evidence is not in the Veteran's favor
or in a state of equipoise, the Board's analysis under the
higher clear and unmistakable evidence standard. The Board
is unable to conclude that there is 'clear and unmistakable'
evidence to show that the alleged head injury did not occur,
and there is at least some reasonable supporting evidence to
suggest the occurrence of a head injury.
Thus, accepting for the purposes of this analysis that the
Veteran suffered the alleged head injury during service, the
Board finds that the broader evidence does not clearly and
unmistakably show that such head injury did not permanently
aggravate a pre-existing seizure disorder. The Board finds
that the conflicting probative evidence provides sufficiently
plausible support of the possibility of in-service
aggravation.
The 1944 service treatment records document history provided
by the Veteran that he suffered two preservice seizures and
that they occurred about once a year. Service treatment
records refer to two seizures during service. It appears
that the time of the first was not documented. The second
appears to have occurred in March 1944. Based on this
evidence, it does not appear that there was any clear
increase in the frequency of the seizures during service.
The service treatment records also do not suggest any
increase in the underlying severity of the disorder during
service. It appears that the nature of the seizures were the
same during service as reported to have occurred prior to
service.
Looking to post-service evidence, particularly the January
2005 VA examination report, it appears that the Veteran
reportedly suffered additional seizures in 1947, 1948, and
1965. Medical evidence suggests that he has been on Dilantin
since 1965 and has been seizure free since then.
Nevertheless, post-service medical opinions present competent
medical evidence indicating that it is not 'clearly and
unmistakably' apparent that the severity of the seizure
disorder was not aggravated during service. A January 2005
VA examination report finds that the Veteran's seizures were
"less than 50/50 probability due to his head injury." This
does not constitute 'clear and unmistakable evidence' that
his seizure disorder was not aggravated by an in-service head
injury. A May 2005 VA examination report states that "there
are no exacerbating factors in the military" because "he
has had a substantial decrease in his epilepsy" since
service. However, based upon consideration of the same
factual history, an October 2003 medical statement from a Dr.
Jones opines that "it seems quite reasonable to directly
link the seizure activity of the veteran to his head injury
during the service" and "the head injury during the service
could very well have exacerbated his epilepsy (condition of
seizure activity) in severity and frequency." Additionally,
a May 2001 private medical statement from a Dr. Bash opined
that "the patient's inservice head injury is the initial
event that caused his persistent seizure disorder."
Although some of the evidence makes different assumptions
regarding the original onset of the Veteran's seizure
disorder, the competent probative evidence does present a
reasonably plausible link between an increase in the severity
of the Veteran's seizure disorder and an in-service head
injury. The Board notes that the general absence of seizures
following the Veteran's service appears to have been
attributed to a successful plan of treatment involving
effective medication (the Veteran has testified that his
single post-service seizure occurred when he was not taking
his medication); it appears plausible, then, that the general
absence of seizures following service is not a clear and
unmistakable demonstration that the underlying seizure
disorder was not aggravated.
The Board solicited an Independent Medical Opinion to clarify
and develop evidence addressing this claim, and the February
2009 response to this request has been carefully considered.
In pertinent regard, the February 2009 Independent Medical
Examiner opined, after reviewing the evidence in the claims
file, that "a head injury could possibly exacerbate or cause
seizures although there is no conclusive proof that it did in
this case." In light of this conclusion, which is
consistent with the broader discussion presented in the
February 2009 opinion, the Board finds that this evidence
shows no 'clear and unmistakable' demonstration that a pre-
existing seizure disorder was not aggravated during service.
Although the evidence does not clearly show that the
Veteran's seizure disorder was aggravated during service, the
Board is of the opinion that there is no 'clear and
unmistakable' evidence that the seizure disorder was not
aggravated during service. While the evidence may not
thoroughly demonstrate in-service aggravation of the seizure
disorder, the Board is satisfied that the evidence does not
provide a 'clear and unmistakable' showing that the Veteran's
preexisting seizure disorder was not permanently worsened by
service. Thus, the presumption of sound condition on
entering service has not been successfully rebutted. The
seizure disorder diagnosed during service must therefore be
viewed as having been incurred during service.
ORDER
Service connection for a seizure disability is warranted.
The appeal is granted.
