BVA9501977 DOCKET NO. 92-02 599 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Entitlement to service connection for a seizure disorder, including epilepsy. Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran had three period of active service: from March 1976 to April 1976, from March 1980 to May 1981, and from September 1982 to April 1983. This appeal arises from an October 1991 rating decision of the Cleveland, Ohio, regional office (RO). In that decision, the RO denied entitlement to service connection for a seizure disorder and for a neurosis. We note that the veteran wrote in his substantive appeal that he had "chemical imbalances in the brain, caused in part by medication received while under the care of Brecksville VA." He also reported becoming addicted to drugs while under Brecksville VA care. The RO may choose to clarify what issues or claims the veteran sought to address with these statements, and to engage in further development, if appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for a seizure disorder. He contends that his seizure disorder was aggravated by the pressure of Marine Corps boot camp. He also contends that service connection is warranted for a psychiatric disability, which he contends was incurred in or aggravated by service. 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. 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 the preponderance of the evidence is against the claims for entitlement to service connection for a seizure disorder, including epilepsy, and for an acquired psychiatric disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. The veteran has epilepsy that was first manifested and treated in childhood, several years before his first period of military service. 3. The veteran was treated for seizures during his first and second periods of military service. 4. The veteran's epilepsy did not become more severe during his first, second, or third periods of military service. 5. The veteran did not have any neurosis or psychosis prior to service, or during any of his three periods of military service. 6. The veteran admitted to attempting suicide in service in 1981. 7. Psychological evaluation in service in 1981 revealed a personality disorder. 8. Depression and dysthymia were manifested many years after service, and are not linked to events in service. CONCLUSIONS OF LAW 1. Epilepsy was not incurred in service; epilepsy that pre- existed service was not aggravated in any of the veteran's three periods of service; epilepsy may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (1994). 2. No neurosis or psychosis was incurred in or aggravated by any of the veteran's three periods of service; nor may any psychosis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the veteran has presented well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Therefore, the Department of Veterans Affairs (VA) has a duty to assist the veteran in the development of his claims. In September 1992, the Board of Veterans' Appeals (Board) remanded the case to the RO for further development. The Board requested that the RO obtain records of VA hospital treatment of the veteran in 1977, a VA neurological examination performed in 1991, records of private psychiatric treatment in 1990 and 1991, records regarding an apparent award of benefits to the veteran from the Social Security Administration (SSA), and service medical records for the veteran's third period of military service. The RO obtained records of a 1991 VA neurological examination, records of mental health counseling in 1990, and service medical records for the veteran's third period of military service. The RO requested, but was not able to obtain, records of VA hospital treatment of the veteran in 1977, and records regarding an apparent award of benefits to the veteran from the Social Security Administration (SSA). Medical records from each of the veteran's three periods of service, and a number of post-service medical records, are all associated with the claims file. We do not believe that the records of the veteran's 1977 VA hospital treatment or of a Social Security award, if any, are necessary to evaluating the issues before us on appeal. We conclude that the facts relevant to the issues on appeal have been properly developed, and that VA's statutory obligation to assist the veteran in the development of his claims has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1994). If the disability is included in a list of chronic diseases recognized by regulations, including epilepsy and psychoses, service connection may be established if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). I. Seizure Disorder The veteran's seizure disorder was not incurred in service; the evidence establishes that epilepsy was first manifested many years prior to his first period of military service. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the disability existed prior to service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1994). When the veteran enlisted in the Marines in March 1976, he reported that he had no history of epilepsy or fits. The report of his entrance examination did not note any neurological disorders. Service medical records document, however, that a few days after entering service, the veteran was seen by doctors, and he reported a four year history of grand mal epilepsy. Service officials obtained records of civilian medical treatment of the veteran from University Hospital in Cleveland, Ohio. University Hospital's records confirmed that the veteran had had seizures since 1968, and had been treated with medication beginning in 1970. In April 1976, a service medical board found that the veteran had a seizure disorder existing prior to enlistment, and recommended separation from service. Although the veteran's epilepsy was not noted at entrance into service, clear and convincing medical evidence, including preservice medical records, established that the veteran had epilepsy prior to entering service. The veteran contends that his epilepsy was aggravated during service. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1994). Whether a disability underwent an increase in severity during service is determined based on all the evidence of record pertaining to the manifestations of the disability before, during and after service. 38 C.F.R. § 3.306(b) (1994). The United States Court of Veterans Appeals (Court) has held that temporary flare-ups during service of the symptoms of a disability, without overall worsening of the condition itself, do not constitute aggravation of the disability. See Hunt v. Derwinski, 1 Vet.App. 292, 296 (1991). Preservice civilian medical records indicated that the veteran was free of seizures on medication from 1971 to 1974. When he was seen in 1975, he was having two seizures weekly, and he was started on a different medication. March 1976 service clinical records noted that the veteran did not report his history of seizures when he joined the Marines. The veteran reported that he stopped taking medication two weeks before joining the Marines, and that he became weak all over, and had a seizure in March 1976 while in service. He described his seizures, but he did not report any differences between his seizures before service and his seizure during service. The claims file contains no medical records regarding the veteran's epilepsy condition during the years between his first and second periods of military service. The veteran experienced a seizure during his Marine Corps service in 1976. The evidence does not show that his epilepsy condition during and after his 1976 service was manifested by worse seizures or more frequent seizures compared to his condition before service. As the evidence does not show that his condition became more severe during his six weeks of service in 1976, we find that his epilepsy condition was not aggravated by that period of service. When the veteran joined the Army in March 1980, he completed a medical history report. At the question as to whether he had any history of epilepsy or fits, he marked "No." Army medical records document that in January 1981 the veteran was seen in sick call for seizures. He reported having seizures since age thirteen, treated with anticonvulsants. He stated that he had been having monthly nocturnal seizures for the past year, since he stopped taking medication. Service physicians prescribed medication for his seizure disorder. He was discharged from the Army in May 1981. He waived a separation examination, and there is no medical evidence in the claims file regarding the severity of his epilepsy condition during the year and a half between his second and third periods of service. The veteran had symptoms, in the form of seizures, during his fifteen months in the Army, but the available evidence regarding the veteran's epilepsy condition before, during and after that service period does not support a finding that the condition became more severe during that period. We conclude that the veteran's epilepsy was not aggravated during his second period of service. The veteran joined the Navy in September 1982 and was discharged in April 1983. In September 1982, he once again was not truthful when he completed the medical history report, claiming that he had no history of epilepsy or fits. Service medical records do not show any complaints or treatment for seizures during his seven months in the Navy. Available medical records do not indicate the severity or manifestations of the veteran's epilepsy during the years immediately following his third period of military service. As there is no evidence suggesting worsening of the veteran's epilepsy during his Navy service in 1982 and 1983, we find that the disability was not aggravated during that period of service. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107 (West 1991). The veteran had epilepsy prior to his first period of military service. His epilepsy condition was not aggravated during any of his three periods of active service. As his epilepsy was not incurred in or aggravated by service, service connection is denied. II. Psychiatric Disability The veteran contends that he has a psychiatric disability that was incurred in or aggravated by service. No psychiatric disorders were noted on his entrance examination in March 1976. After reporting a seizure disorder , the veteran had a neurology consultation in service in March 1976. The veteran told the examining neurologist that during treatment for epilepsy several years before service, he had seen a psychiatrist for two weeks. He reported that his mother prevented him from going more. He stated that he saw the psychiatrist because of a nervous condition, and getting angry easily. He reported that his mother had the same condition. The veteran reported seizure symptoms, but did not report having any nervous or psychiatric complaints during his 1976 period of military service. Clear and unmistakable evidence is required to rebut the presumption that the veteran had no psychiatric disorder at the time of entrance into service. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1994). Without a showing of a diagnosed psychiatric condition, the veteran's reports of seeing a psychiatrist for two weeks at some time before service are insufficient to be considered clear and unmistakable evidence of a psychiatric disability preexisting service. The evidence through 1976 does not support a finding that the veteran had a psychiatric disability before, during, or at the end of his first period of military service. On examination for entrance into the Army in March 1980, no psychiatric complaints or disorders were noted. When he reported a seizure disorder in January 1981, outpatient treatment records noted that he was very nervous and talkative about being put out of the Army, but otherwise very alert and attentive. Later in January 1981, the veteran admitted to taking an overdose of Dilantin, a medication prescribed for his seizure disorder. He was referred for a psychological evaluation. He reportedly told a psychologist that he took the overdose because he did not like the unit he to which he was assigned. A service physician diagnosed: overdose of Dilantin, a history of seizure disorder, and "passive-aggressive personality disorder, with mixed features, manifested by manipulation, poor judgment, suicide attempt, poor stress tolerance, social and military ineffectiveness, and passivity with agressivity." The veteran waived a separation examination at the end of his Army service. The service physician's assessment of the veteran's condition as a personality disorder is credible, in that the physician had the opportunity to examine the veteran first hand. We note that personality disorders are not considered to be diseases or injuries within the meaning of veteran's benefits legislation, and therefore are not eligible for service connection. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(c) (1994). All of the evidence through the end of the veteran's second period of service, considered together, supports a conclusion that the veteran had a personality disorder, but no neurosis or psychosis. The veteran was again found to be psychologically normal when examined for entrance into the Navy in September 1982. On prescreening and medical history forms, the veteran reported no history of psychiatric, emotional, or nervous complaints. Service medical records for the veteran's seven months in the Navy noted no complaints, symptoms or treatment or psychological, nervous, or emotional problems. There is no evidence of psychiatric treatment for several years following the veteran's third period of military service. The claims file contains records of counseling that the veteran received in 1990 from Northeast Ohio Health Services. At that time, the veteran received relationship counseling with his girlfriend, and counseling in relation to a custody hearing. The counselor noted "numerous inconsistencies" in the information presented by the veteran, and reported that the veteran was "manipulative and grandiose." On VA Neurology examination in August 1991, the veteran reported having a seizure disorder since the age of twelve, which was treated with medication until 1987, when he self-discontinued medication. He denied having any seizure symptoms since 1987. He reported two past suicide attempts. He reported feeling depressed, and hearing voices telling him to kill himself. He also reported poor sleep, poor appetite, and weight loss. The examiner noted that the veteran was oriented but inattentive. The examiner's impression was seizure disorder and major depression. In a December 1993 VA examination, the veteran reported a suicide attempt in 1977, reportedly followed by VA hospitalization for about ten months. He reported having problems with his interactions with women, and difficulty getting and keeping jobs, due to getting "stressed out" and "depressed." He reported having had no seizures since 1981. He reported feeling depressed, sad and tired at the time of the examination, but with no suicidal ideas at that time. The examining physician observed that there was no evidence of organicity on the veteran's cognitive examination. The examiner also noted that the veteran showed good judgment and insight about his problems. The examiner's diagnoses were: epilepsy by history, possible grand mal; dysthymia; rule out personality disorder. The veteran's claim for service connection for a psychiatric disability must be evaluated based on the entire history provided by the evidence. We note that no psychosis or neurosis was diagnosed at any time before or during the veteran's military service. His suicide attempt in service in 1981 prompted psychological evaluation, and the practitioners who examined him in person assessed his condition as a personality disorder. Physicians have assessed the veteran as having depression and dysthymia, but these conditions were diagnosed in 1991 and 1993, many years after the veteran's last period of military service. The 1993 examiner's notation of "rule out personality disorder," indicated that a determination should be made as to whether a personality disorder was present, but did not actually determine that a personality disorder was absent. The suicide attempt and personality disorder reported in 1981 were not followed by objective evidence of a continuous or chronic psychoneurotic symptoms that would link the events in 1981 to the diagnoses in 1991 and 1993. The veteran served in the Navy in 1982 and 1983 without evidence of psychological problems. There is no evidence of psychological or emotional problems for several years after 1983, until the veteran had a few sessions of relationship counseling in 1990. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107 (West 1991). We conclude that the veteran did not have a psychiatric disability during any of his periods of service, and that psychiatric disorders that manifested many years after all of his service are not linked to events in service. Service connection for a psychiatric disability is therefore not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a seizure disorder, including epilepsy, is denied. Entitlement to service connection for an acquired psychiatric disability is denied. JACK W. BLASINGAME 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.