BVA9500239 DOCKET NO. 92-06 820 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Antonia P. Marra, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (the Board) on appeal from a July 1991 rating decision of the Fort Harrison, Montana, Department of Veterans Affairs Regional Office (VARO). A hearing was held at VARO in November 1991. In a decision dated December 14, 1992, the Board denied the appellant's claim seeking entitlement to service connection for a seizure disorder. The appellant duly appealed the Board's decision to the United States Court of Veterans Appeals (hereinafter "the Court"). In January 1994, counsel for the Secretary of Veterans Affairs submitted a response to the appellant's brief, requesting a joint motion for remand and stay of proceedings pending a ruling on the motion. An Order of the Court dated in January 1994 granted the Secretary's joint motion and vacated the Board's December 1992 decision. The case was remanded for further evidentiary development, readjudication and disposition in accordance with the Court's order. [citation redacted]. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he first experienced a seizure while on active duty for training aboard the submarine USS CAIMAN in August 1971, thus warranting entitlement to service connection on a direct basis. Alternatively, he argues that if his seizure disorder is found to have pre-existed service, it was aggravated therein secondary to sleep deprivation and stress related to his duties aboard the USS CAIMAN. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence of record is against the appellant's claim for entitlement to service connection for a seizure disorder. FINDINGS OF FACT 1. The appellant was enrolled in the U.S. Navy ROTC program at the Oregon State University between September 25, 1967 and September 16, 1971. His period of active duty for training purposes has not been verified; however, he is presumed to have been on active duty for training aboard the submarine USS CAIMAN in August 1971. 2. The appellant sustained a depressed skull fracture of the right orbital area, requiring a right frontal craniotomy, in March 1971. Contemporaneous medical records and the opinions of neurologists who have since treated the appellant for a seizure disorder relate the etiology of that disorder to the March 1971 injury. 3. Service medical records indicate that the appellant was diagnosed with a post traumatic seizure disorder following a seizure attack that occurred while he was aboard the USS CAIMAN on August 13, 1971. A clinical record of examination showing treatment for that seizure attack indicates that the seizure was his second motor seizure. 4. Medical progress notes showing follow-up evaluation of the appellant's March 1971 craniotomy indicate that the appellant had a seizure in approximately June 1971. 5. Since the appellant's March 1971 skull fracture, he has been treated with anticonvulsive medication to control his seizure disorder. 6. The appellant's initial seizure occurred prior to August 1971, when he was aboard the USS CAIMAN during active duty for training. 7. The greater weight of the relevant and probative evidence of record does not establish an increase in the appellant's pre- existing seizure disorder beyond its natural progress during the appellant's active military service. CONCLUSION OF LAW A seizure disorder was not incurred in or aggravated by active duty for training. 38 U.S.C.A. §§ 101(2), 101(22) (D), 101(24), 1110, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.1(k), 3.1(m), 3.6(a), 3.6(c), 3.303, 3.306(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background In the instant case, the record reflects that the appellant was enrolled in the United States Navy Reserve Officers' Training Corps (ROTC) program at the Oregon State University between September 25, 1967 and September 16, 1971. His period of active duty for training purposes has not been verified; however, he is presumed to have been on active duty for training in August 1971 when he suffered a major seizure aboard the submarine USS CAIMAN. The appellant sustained a depressed skull fracture of the right orbital area, requiring a right frontal craniotomy, in March 1971. Contemporaneous medical records and the opinions of neurologists who have since treated the appellant for his seizure disorder relate the etiology of that disorder to the March 1971 injury. At the time of his injury, the appellant was not on active duty status with his Navy ROTC unit at Oregon State University. He was in his senior year at the university and was scheduled for a pre-commissioning summer cruise aboard the USS CAIMAN. The medical evidence of record indicates that the appellant was treated by J.D. White, M.D., on a follow-up basis for his March 1971 right frontal craniotomy. Progress note dated June 7, 1971 indicated that the appellant was doing very well at home and was having no neurological symptoms. He was instructed to continue on Dilantin for about another month and then discontinue it. Progress note dated July 29, 1971 indicated that the appellant had had a straight forward/frontal lobe seizure approximately one month previously. The appellant was noted to be in possession of a phenobarbital prescription which had been prescribed to him by a Dr. Knox at the time of the June 1971 seizure. Dr. White instructed the appellant to continue on phenobarbital and to increase his Dilantin dosage to four times per day for four days, then back to three times per day. Dr. White opined that the appellant was fit to report to the Navy in San Diego, CA, but that he should return for follow-up evaluation upon his return from the pre-commissioning summer cruise. Service medical records indicate that the appellant was given a routine physical examination in February 1971. Subsequent to his March 1971 eye injury, he was reevaluated by the Navy in June 1971. The report of that evaluation, dated June 3, 1971, indicated that the appellant had a "normal eye." According to USS CAIMAN ship deck log reports, of record, the appellant suffered a seizure aboard the submarine on August 13, 1971. The report of examination, dated August 13, 1971, from the U.S. Naval Hospital, San Diego, CA, indicated that the appellant suffered a post traumatic seizure that day aboard the USS CAIMAN. The treating neurologist's clinical record notes stated in relevant part: [The appellant] was well until March 19, 1971, when [a] pool cue perforated [his] right orbit and fractured [his] frontal bone. [Appellant] required [a] craniotomy. Since this time has had 2 major seizures (one today). He is supposed to be taking Dilantin 100 mg, 3 times per day and Phenobarb, three times per day. Neurological exam is essentially normal. He is presently fully awake, alert and oriented. He states that he was found fit for duty [in] May 1971. Impression [is] post traumatic seizure disorder. Recommendations - Return to ship. Patient is unfit for duty and should not be commissioned in U.S. Navy. By report of the Chief, Bureau of Medicine and Surgery, U.S. Navy, dated September 2, 1971, the appellant was declared physically unfit for military service for failure to meet established physical standards by reason of a post traumatic seizure disorder. The evidence of record indicates that the August 13, 1971 seizure aboard the USS CAIMAN was the only seizure the appellant suffered during qualifying periods of active duty for training. A progress note dated August 19, 1971 from Dr. White was significant for the appellant's account of having been "discharged" from the Navy following a seizure aboard his ship. Progress note dated November 18, 1971 indicated that the appellant was doing well and was presently looking for employment as a civil engineer. The note recorded a history of four seizures of the grand mal type occurring since his right frontal craniotomy in March 1971. The note also indicated that the appellant was continuing on Dilantin, three to four times per day to control his seizure disorder. Neurological examination was otherwise within normal limits. Additional post service medical records included progress notes made by the appellant's primary care physician, S. Cade, M.D., which are dated between May 11, 1978 and December 10, 1984. A progress note dated May 11, 1978 indicated that the appellant's medical history was significant for a 1971 craniotomy following an eye injury. The note further indicated that the appellant was continuing on Dilantin and phenobarbital, but that he was still having seizures, approximately one every month. A progress note dated April 4, 1984 indicated that the appellant was still having seizures and taking Dilantin and phenobarbital for their control. Also of record are the neurological consultation reports of M. A. Guggenheim, M.D., for the period between May 21, 1984 and October 4, 1988. In summary, those reports noted continued evaluation of the appellant's seizure disorder. A letter from Dr. Guggenheim dated December 4, 1988 indicated that the appellant had been a patient of hers since May 1984 for his seizure disorder. Dr. Guggenheim stated that the underlying etiology of the seizure disorder appeared related to the March 1971 eye injury. Apparently relying on the appellant's reported medical history, she opined that the appellant's first seizure occurred on August 13, 1971 while he was aboard the USS CAIMAN, stating "[d]uring that cruise and following a time of prolonged sleep deprivation and stress, he had a generalized motor seizure on August 13, 1971." Dr. Guggenheim further opined that there was no medical evidence or history from the appellant or his family to indicate that he had any seizures prior to the August 1971 seizure. Also of record is a letter signed by A. J. Wilensky, M.D., dated January 5, 1989 which essentially reiterated Dr. Guggenheim's account of the appellant's medical history concerning the etiology and date of onset of his initial seizure following his March 1971 eye injury. Also considered by the Board were the appellant's pleadings documents, personal statements, and the transcript of his testimony taken at a personal hearing held in November 1991, all of which, in essence, advance and promote his contentions on appeal. In addition to the above, and pursuant to the Court's remand order of January 1994, the Board requested the opinion of an independent medical expert to address the following question: Does the pattern of seizure activity shown by the evidence of record contained in the appellant's claims file for the periods before, during and after his August 1971 cruise aboard the USS CAIMAN establish an increase in the severity of the seizure disorder attributable to the appellant's duty aboard the USS CAIMAN in August 1971? Accordingly, the opinion of R. T. Simkins, D.O., of the Department of Neurology, Baylor College of Medicine, Houston, Texas, was made part of the record on appeal and was made available to the appellant and his attorney prior to the preparation of this decision. The undersigned notes that no further argument or comment was submitted in response to Dr. Simkins' medical opinion. After reviewing all of the evidence of record and thoroughly discussing the appellant's medical history relative to his seizure disorder, Dr. Simkins stated, in pertinent part, the following opinion: "In conclusion, I find no evidence that the patient's epilepsy was precipitated or aggravated by his military service, specifically the cruise upon the USS CAIMAN." II. Applicable VA Law and Regulations The appellant is seeking entitlement to service connection for a seizure disorder which he attributes to his military service experience. 38 U.S.C.A. § 1110 (West 1991). Active military, naval, and air service includes "active duty for training," during which the individual concerned was disabled by disease or injury incurred in or aggravated in the line of duty. 38 C.F.R. § 3.6(a) (1993). VA regulations provide that full time duty performed by a member of the Senior Reserve Officers' Training Corps program when ordered to such duty for the purpose of training or a practice cruise under Chapter 103 of Title 10, United States Code, is classified as "active duty for training." 38 U.S.C.A. § 101(22) (D) (West 1991); 38 C.F.R. § 3.6(c) (4) (1993). Accordingly, VA disability compensation benefits may be awarded for disease or injury incurred or aggravated in the line of duty, in the active military, naval, or air service, which in this case, includes a period of active duty for training in August 1971 when the appellant suffered a major seizure aboard the submarine USS CAIMAN. Under pertinent law and VA regulations, service connection may be granted if the facts, shown by the evidence, establish that a seizure disorder resulting in disability was incurred in service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1993). This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (1993). Each disabling condition shown by the service records must be considered on the basis of the places, types and circumstances of the individual's active service period, as shown by service records, the official history of each organization in which he served, his medical records and all pertinent and lay evidence. Idem. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. Id. A pre-existing injury or disease will be considered to have been aggravated by military service when there has been an increase in the underlying pathology of the condition during such service, beyond its normal progression. 38 C.F.R. § 3.306(a) (1993). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service; this includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) (1993). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Idem. Service connection may also be granted for any disease diagnosed after service 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) (1993). III. Application of Law to Facts Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by the VA, and that a disposition on the merits is now in order. The Board notes that the medical evidence of record clearly establishes that the appellant's seizure disorder pre-existed his period of active duty for training coincident with his August 1971 pre-commissioning cruise aboard the USS CAIMAN, and therefore, did not originate in service. As indicated above in this decision, the medical evidence of record reflects that the appellant suffered at least one seizure prior to his August 1971 pre-commissioning cruise. Dr. Simkins' medical opinion, which was based on a comprehensive review of all the evidence of record, supports this assessment. Following a lengthy discussion of the evidence as essentially related above in the Factual Background, Dr. Simkins stated, in pertinent part, the following: With this information in mind, I think that it is more than reasonable to assume that the seizure that occurred on the submarine was not the Appellant's first seizure and, in fact, that he had experienced at least one seizure in the latter part of June or early July 1971. Drs. Wilensky's and Guggenheim's statements of record, pertinent to their opinions that the appellant's first seizure occurred aboard the USS CAIMAN in August 1971, appear heavily outweighed by the objective evidence of record, and specifically by the medical opinion of Dr. Simkins, who as previously stated, had the benefit of review of the evidence of record as contained in the claims file. Dr. Guggenheim's opinion of December 1988, as well as Dr. Wilensky's of January 1989, appears based solely on the appellant's reported medical history given at the time of evalua- tions under their care between the years 1984-89. The Board is under no obligation to accept the appellant's uncorroborated account of his military experiences as a basis for substantiating a claim, notwithstanding health professionals who accept as truthful his reported medical history for the purposes of treatment and evaluation. See Wood v. Derwinski, 1 Vet.App. 406 (1991). As indicated by Dr. Simkins, the medical evidence of record clearly denotes a history of seizure activity prior to the appellant's August 1971 cruise aboard the USS CAIMAN. Accordingly, the Board finds no objective evidence to support a grant of service connection for the claimed disability on a direct incurrence basis relative to the appellant's qualifying period of active military service. 38 C.F.R. §§ 3.6(c), 3.303 (1993). Having reviewed the evidence of record, the Board concludes that the weight of the evidence is against the appellant's claim on the basis of aggravation of the pre-existing seizure disorder. As indicated above, service connection based on aggravation requires evidence of an increase in the underlying pathology of the disability during service, beyond its normal progression. 38 C.F.R. § 3.306(a) (1993). As with the issue of direct incurrence, the Board places greater probative value on the medical opinion of Dr. Simkins, as opposed to the appellant's contentions or the assessments of treating physicians who did not have the benefit of review of all the medical evidence of record. Specifically, it appears that Dr. Simkins has directly refuted the appellant's argument that his seizure disorder was aggravated by sleep deprivation and stress allegedly experienced while he was aboard the USS CAIMAN in August 1971. The Board will quote at length Dr. Simkins' opinion at this time as the undersigned believes that his findings are fully dispositive of the issue at hand: There is no evidence from the history that his service on the USS CAIMAN exacerbated or aggravated the Appellant's epilepsy. The records indicate that he did have a seizure or seizures prior to the seizure on the submarine and that there was no identifiable increase in seizure activity as a result of his service on the submarine. The Appellant's seizure history is certainly in keeping with the natural history of the disorder. At the time of his cruise aboard the USS CAIMAN, the pathological substrate responsible for his seizures was already in place and active. At most, stress or sleep deprivation could be implicated as a nonspecific precipitant influencing the occurrence or timing of a particular seizure, but not having any direct or specific influence upon the preexisting pathological processes responsible for the development of the epilepsy. Seizure frequencies in patients are often very sporadic and it is often very difficult, if not impossible, to predict their occurrence. Nevertheless, in order for one to conclude that there is an increase in severity of seizures or an increase in seizure frequency, a change in the pattern would have to be identified. This would either take place in the form of a worsening in the seizure type (for instance, a patient who was previously exhibiting only nonconvulsive seizures such as complex partial seizures would begin developing convulsive seizures). [or] An increase in the seizure frequency would be identified by a change in a defined seizure frequency before a certain event, as compared to during or after the event. In this case, neither type of worsening of the seizure disorder can be historically identified. Based on the foregoing, the Board is of the opinion that service connection for a seizure disorder, either as incurred in or aggravated by military service has not been established on the basis of the evidence of record, and therefore is not warranted in this case. The preponderance of evidence found probative to the issue weighs against a grant of the benefit sought; the benefit of the doubt is for application where the evidence of record is found to be relatively evenly balanced. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.