Citation Nr: 0000256 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 93-23 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to service connection for an organic mental disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from September 1988 to June 1991. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in October 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In a decision of November 1995, the Board denied entitlement to service connection for a personality disorder and remanded this case to the RO for further development of the evidence. In February 1999, the Board again remanded the case to the RO. The case was most recently returned to the Board in August 1999. FINDINGS OF FACT 1. There is no competent medical evidence that the veteran currently has a seizure disorder. 2. There is no competent medical evidence that the veteran currently has an organic mental disorder. CONCLUSION OF LAW Claims of entitlement to service connection for a seizure disorder and an organic mental disorder are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). However, the initial inquiry in reviewing any claim before the Board is whether the veteran has presented evidence of a well-grounded claim, that is, one which is plausible or capable of substantiation. The veteran carries the burden of submitting evidence "sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If he has not presented a well-grounded claim, his appeal must fail. While the claim need not be conclusive, it must be accompanied by supporting evidence; a mere allegation is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A well-grounded claim for service connection requires that three elements be satisfied. First, there must be competent evidence of a current disability, as established by a medical diagnosis; second, there must be competent evidence of an incurrence or aggravation of a disease or injury in service, as established by lay or medical evidence, as appropriate; and, third, there must be competent evidence of a nexus or relationship between the inservice injury or disease and the current disorder, as established by medical evidence or a medical opinion. See generally Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). A service connection claim may also be well grounded, under 38 C.F.R. § 3.303(b), if evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical, unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If a chronic condition in service and since service is not shown, the claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service, continuity of symptomatology is demonstrated thereafter, and competent evidence relates a present disorder to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 493 (1997). The veteran's service medical records contain indications that he may have had episodes of syncope. In December 1991, after the veteran's separation from service, he was admitted to a VA medical center on referral from a sheriff and his family after he was observed walking down a highway pushing over mailboxes and signs. He and his wife were having marital conflict. The discharge diagnoses in February 1992 included: On Axis I, situational anger and depression; on Axis II, rule out borderline personality disorder; and on Axis III, rule out seizures, possibly causing outbursts of anger. A VA examination in October 1992 yielded a tentative diagnosis of "probable seizure disorder, being investigated at this time". At a VA psychiatric examination in February 1996, diagnoses included: On Axis I, possibility of bipolar disorder; on Axis II, personality disorder, not otherwise specified, with antisocial and borderline traits; and, on Axis III, organic mental disorder or organic personality disorder not found. Also in February 1996, an official VA fee-based neurological examination was conducted by Neal J. Gilman, M.D., a private neurologist. Dr. Gilman found no evidence of seizure activity but commented that he would like to review the results of an electroencephalogram (EEG), if available, and stated that a thorough neurological examination would include an EEG. In February 1996, at a private hospital, the veteran underwent an EEG. The impression was normal awake and drowsy EEG. In April 1999, Dr. Neal J. Gilman, the fee-basis neurologist, reported that he had again reviewed his consultation report of February 1996 and the EEG performed in February 1996 and "(the veteran) does not have a seizure disorder." The Board finds that the veteran's service connection claims are not well grounded, because the medical evidence of record shows that he does not have a seizure disorder or an organic mental disorder. 38 U.S.C.A. § 5107(a); Epps. The claims are also not well grounded under 38 C.F.R. § 3.303(b) and Savage, because a chronic seizure disorder/organic mental disorder in service and since service has not been demonstrated, and there is no competent medical evidence of a nexus between a current seizure disorder/organic mental disorder and a condition present in service. The Board recognizes that the claims of entitlement to service connection for a seizure disorder and an organic mental disorder are being disposed of in a manner which differs from that used by the RO. The RO denied the veteran's claims on the merits, while the Board has concluded that the claims are not well grounded. However, the Court has held that "when an RO does not specifically address the question of whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded-claim analysis". Meyer v. Brown, 9 Vet. App. 425, 432 (1996). The Board is aware of no circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claims for service connection for a seizure disorder and an organic mental disorder "plausible." See generally McKnight v Gober, 131 F.3d. 1483-5 (Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for service connection for a seizure disorder and an organic mental disorder. Robinette v. Brown, 8 Vet. App. 69, 77-8 (1995). ORDER Service connection for a seizure disorder is denied. Service connection for an organic mental disorder is denied. BRUCE KANNEE Member, Board of Veterans' Appeals