BVA9505065 DOCKET NO. 91-36 340 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from March 1973 to August 1973 and from August 1976 to August 1978. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a July 1990 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office. The Board notes that the appellant changed residence subsequent to the July 1990 rating decision, and in accordance with his request, this case was transferred to the Des Moines, Iowa, VA Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he suffers a seizure disorder as a result of typhoid during service. He also contends that he suffers dizziness which is related to his claimed seizure disorder. 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 appellant has not met the initial burden of submitting evidence which is sufficient to justify a belief by a fair and impartial individual that the claim to service connection for a seizure disorder is well grounded. FINDINGS OF FACT 1. Service medical records are negative for complaints, findings, or manifestations of a seizure disorder, as well as typhoid, during service. 2. The appellant's claimed seizure disorder is reportedly manifested by stuttering, speaking too quickly, and occasional staring; there are no complaints or medical findings for episodic convulsions, unconsciousness, or incontinence. 2. Post service medical records, including report of a VA inpatient evaluation for a seizure disorder in September 1993 and a VA examination in December 1993, are negative for objective clinical evidence of a seizure disorder; on VA examination in December 1993, the examiner opined that the appellant's claimed seizure disorder does not appear epileptic in nature, but rather it seems to involve a psychological component. 3. A seizure disorder was reported by history only; service medical records, VA outpatient and inpatient treatment reports, private outpatient treatment reports, Social Security Administration records, and report of VA examination in December 1993 do not reflect a confirmed diagnosis of a seizure disorder. CONCLUSION OF LAW The appellant has not submitted evidence of a well grounded claim for service connection for a seizure disorder. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered at the outset of the analysis of any case is whether the appellant's claim is well grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A § 5107(a) (West 1991). For service-connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1993). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. 38 U.S.C.A. 5107(a). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the appellant is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. (1993). In this case, the appellant's evidentiary assertions as to the presence of a seizure disorder related to service is inherently incredible when viewed in the context of the total record. Background In May 1990, the appellant filed for service connection for a seizure disorder, and claimed that he currently has a seizure disorder due to having had typhoid during service. The pertinent evidence before the Board includes service medical records, VA treatment reports dated February to July 1987, VA inpatient evaluation for a seizure disorder dated August to September 1993, report of VA examination in December 1993, and Social Security Administration records. Pursuant to a remand from the Board in June 1992 and June 1993, VARO undertook additional development to assist the appellant in establishing his claim, which included requesting addition medical reports from various sources and scheduling the appellant for appropriate testing to ascertain whether or not he has a seizure disorder, as well as the etiology and probable date onset if determinable. The service medical records reflect that the appellant had two episodes of dizziness in service; the dizziness was related in one instance to the appellant's distress at being inoculated and, in the second instance, to an allergy. The records do not show that the appellant was diagnosed with a seizure disorder or typhoid; and the records are negative for complaints, findings, or manifestation of either a seizure disorder or typhoid. A private medical statement dated March 1984 reflects that the appellant had a skull series in November 1980 after he presented himself to a hospital emergency room with multiple abrasions and contusions. At that time, there was a question as to the presence of a parietal fracture on the left. Subsequent tomograms were indeterminate according the physician. The physician noted that she had never actually seen the appellant and was merely reporting the above information from the private hospital at which the appellant had presented himself. VA inpatient and outpatient treatment reports dated February to July 1987 reflect complaints for intermittent dizziness. On the VA inpatient report dated June 1987, it was noted that the previous neuropsychiatric work-up was highly suggestive of partial complex seizures. A normal and awake electroencephalogram (EEG) study revealed no significant abnormalities, although anxiety was shown. There was no confirmed diagnosis for a seizure disorder. A sleep deprived EEG was recommended for a 24-hour period. In August 1993, the appellant was admitted to a VA hospital for an evaluation of his possible seizure disorder in accordance with the Board's June 1993 remand. By history, the appellant reported having been in an automobile accident in 1986. He also reported that, in 1987, he was diagnosed with seizures. The appellant described his seizures as episodes of stuttering and talking too fast. The VA hospital report indicated that his seizures had never been witnessed, and that he does not display the classic seizure symptoms. In September 1993, a sleep deprived EEG and computed tomography (CT) study revealed no abnormalities. The impression was that the appellant has possible spells of an unclear nature, probably not epileptic. In December 1993, a VA examination was conducted. The appellant reported "spells" dating back to 1980. He characterized the spells as episodes of stuttering words, speaking too quickly, and occasionally staring. He also indicated that he sometimes forgets where he is and must check his drivers license to determine where he lives. By history, the appellant was in an automobile accident in 1976 and had some minor head trauma although there was no loss of consciousness. Also by history, the appellant was struck over the head with a billy club in 1978 which resulted in a minor concussion. It was noted that formal neuropsychiatric testing revealed markedly abnormal MMPI (Minnesota Multiphasic Personality Inventory); which was believed to possibly represent organic etiology coupled with a major depressive disorder. The appellant reported that he has not worked since 1979 although he engages in occasional temporary jobs. On examination, clinical findings were essentially unremarkable. The examiner opined that the appellant's spells did not appear epileptic in nature, and that there appeared to be a component of psychological involvement productive of a minimal disability at this time. In September 1994, VARO received records from the Social Security Administration (SSA). A review of these records shows that the appellant filed an SSA disability claim in May 1993. At that time, the appellant reported having a disabling seizure disorder which prevented him from working. The SSA records were essentially duplicative of numerous medical records previously considered by VARO and included in the appellant's claims folder. However, a VA medical statement dated February 1987 reflects that the appellant was believed by an unidentified physician to have partial complex seizures, and a 24-hour ambulatory EEG was recommended. On a VA outpatient treatment report dated November 1993, the impression was that the appellant may have both a seizure disorder and a major depressive disorder. An SSA medical consultant indicated in November 1993 that, while the appellant has a history of possible seizures, he was never given any anticonvulsant medication, and the records are negative for episodes of unconsciousness or incontinence. The examiner ultimately questioned whether the appellant ever actually had a seizure disorder. A private psychiatric report dated January 1994 reflects that the appellant "thinks he has a seizure disorder, but he can [not] describe what happens to him." The impression was probable amnestic disorder and a schizoid personality disorder. Analysis The appellant seeks service connection for a seizure disorder. However, the Board finds that there is no objective medical evidence to support the presence of a seizure disorder, or a relationship between the appellant's complaints for dizziness, rapid speech, stuttering, and poor memory as shown in the various medical evidence of record and his period of service. The first suggestion of a possible seizure disorder was on a VA medical statement dated February 1987. However, there is no indication that the appellant tested positive for a seizure disorder on subsequent EEG or CT testing, and there are no complaints or findings for classic seizure symptoms, such as, convulsions, loss of consciousness, and loss of normal body functions. References to a seizure disorder in the VA treatment reports dated between February 1987 and December 1993 reflect mostly a medical history by the appellant for the presence of a seizure disorder. The Board has considered the appellant's statements with respect to the presence of a seizure disorder, and a relationship between his claimed seizure disorder and his period of service. However, we note that he lacks the medical expertise to enter a judgment regarding the existence of a seizure disorder or a medical relationship between the claimed seizure disorder and any in- service onset or event. The Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). Even were there a confirmed diagnosis for a seizure disorder in the VA treatment reports dated between February 1987 and December 1993, more than 9 years after discharge, or on VA examination in December 1993, a diagnosis for a seizure disorder alone would not establish a relationship between the appellant's disease and his period of service. To establish service connection there needs to be a showing that the disability for which service-connection is sought is in some way related to service. Absent objective evidence of medical causality related to service, the claim is not well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Where there is no medical evidence of the claimed disorders during service, where there is no medical evidence linking the claimed disorders to service or an in-service event, or where the disorders are not currently demonstrated, the claim is not well grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Fields v. Derwinski, 90-933 (U.S. Vet. App. Dec. 2, 1991) (emphasis added). Accordingly, in view of the above, the undersigned concludes that evidence sufficient to establish that the claim to service connection for a seizure disorder is well grounded has not been presented. ORDER Having found the claim not well grounded, the appeal of service- connection for a seizure disorder is dismissed and the July 1990 rating decision of the Los Angeles, California, VA Regional Office from which this appeal arose is vacated. 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.