BVA9505275 DOCKET NO. 92-12 350 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to an increased evaluation for post-traumatic headaches, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from September 1957 to April 1960. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an April 1990 and October 1991 rating decision of the Boston, Massachusetts, Department of Veterans Affairs Regional Office (VARO) that denied an increased rating for post-traumatic headaches and service connection for a seizure disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his seizure disorder is due to a head injury in service. He further contends that his service- connected post-traumatic headaches should be evaluated under diagnostic 8100 (migraine headaches) and that they are sufficiently severe to warrant a disability evaluation in excess of the 10 percent currently assigned. 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 entitlement to service connection for a seizure disorder. It is further the decision of the Board that the evidence supports a 30 percent disability evaluation for post-traumatic headaches FINDINGS OF FACT 1. The appellant served on active duty from September 1957 to April 1960. Service medical records reflect that the appellant sustained a head injury from an assault; these records are negative for complaints, findings, or manifestations of a post- traumatic seizure disorder. 2. In 1968, the appellant sustained a head injury when he fell 30 feet off a roof. 3. The first objective evidence of a seizure disorder was on a private medical statement dated May 1990, more than thirty years after discharge. 4. On a VA examination in July 1994, the examiner indicated that the appellant has a post-traumatic seizure disorder related to the head injury incurred in 1968 when he fell off a roof. 5. The appellant's service connected post-traumatic headaches are currently manifested by subjective complaints of debilitating headache pain which occur an average of once a month, with occasional nausea and vomiting; there were no clinical findings of a neurological defect or any significant abnormal pathology connected to his in-service head injury. CONCLUSIONS OF LAW 1. A seizure disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1113, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 2. The schedular criteria for a 30 percent disability evaluation for post-traumatic headaches are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.124a, Diagnostic Code 8100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 VARO and that a disposition on the merits is in order. I. Background Service medical records reflect that the appellant sustained a head injury when he was physically attacked and robbed in January 1959. The appellant was apparently unconscious for an unknown period of time. A laceration on the frontal temporal area was sutured and an x-ray was negative for a skull fracture. Service medical records are negative for complaints, findings, or manifestation of either headaches or a seizure disorder. In June 1986, the appellant requested service connection for headaches due to his head injury in service. On VA examination in August 1986, the appellant reported having sustained a number of head injuries, including a head injury from an assault in January 1959 and a 30 foot fall off a roof in 1968. He further reported that he has experienced headaches since the head injury in service. The appellant was diagnosed with post-traumatic headaches. There were no complaints or findings of a seizure disorder. By rating action dated March 1987, the appellant was service connected for post-traumatic headaches, considered non- compensably disabling. By rating action dated March 1988, the appellant's service- connected post-traumatic headaches were rated as 10 percent disabling in view of a recent VA examination, testimony at a personal hearing, and two lay statements. On VA examination in December 1987, the impression was for chronic headaches, once every 2-months, lasting 2 to 3-weeks due to head trauma in 1959, and it was noted that the appellant took Aspirin and Valium for pain relief. In a lay statement, the appellant's former wife and employer indicated personal knowledge of the appellant's headaches and their severity. In September 1989, the appellant requested a disability rating in excess of 10 percent for his service-connected post-traumatic headaches. In support of his claim, the appellant submitted a private medical statement from John D. Sarney, M.D., dated August 1989 and November 1989. These statements reflect that the appellant had been treated by Dr. Sarney for headaches secondary to falling off a roof. Acute and chronic alcoholism was also noted. On VA examination in January 1990, the appellant complained of headaches. He reported taking Valium or a beer for relief. The headaches reportedly occur variably once a month, lasting a few days at a time, and may be associated with slight dizziness and sweats. By history, the appellant was a roofer and had to quit because of his headaches. Clinical findings are essentially unremarkable. The appellant was diagnosed with post-traumatic headaches. By rating action dated April 1990, VARO denied the appellant's claim for a disability evaluation in excess of 10 percent for post-traumatic headaches. In July 1990, the appellant submitted a notice of disagreement with that decision and noted that he was currently experiencing seizures. In a private medical statement dated May 1990, Dr. Sarney indicted that the appellant was a patient of his for several years, and the he was being treated for dizziness, tension headaches, and a seizure disorder. The physician noted that, because of his medical condition, the appellant was unable to work. A private hospital summary dated February 1991 reflects that the appellant was admitted for an apparent grand mal seizure at home; it was noted that the appellant was an alcoholic but had not been drinking for the last 2-days, and that he had been non-compliant with his Dilantin medication for seizures. The appellant was treated for seizures deemed secondary to inadequate Dilantin and alcohol withdrawal. In March 1991, the appellant filed a claim for entitlement to service connection for a seizure disorder which was denied in an October 1991 rating decision by VARO. A VA hospital summary dated May 1991 reflects that the appellant was admitted for a septoplasty. By history, he had occasional grand mal seizures related to head trauma in 1960, which was controlled with Dilantin, and his most recent seizure occurred one month prior. In a lay statement dated March 1992, the appellant's sister indicated that the appellant was happy and enjoyed life until he sustained a head injury during service. In March 1992, a personal hearing was conducted at VARO. The appellant testified that he experiences severe headaches occurring once a month on average over the past year and that the headaches last from one hour to three hours. The appellant argued that his headaches should be evaluated as migraine headaches under diagnostic code 8100 in the Schedule for Disability Ratings and requested a VA neuropsychiatric examination to ascertain whether or not he suffers from organic brain syndrome due to brain trauma or migraine headaches. The appellant reported that his headaches are associated with nausea, vomiting, photophobia, visual difficulties, and the inability to eat. He further reported the he must lie down in a dark room for relief. He noted that he had not consumed any alcohol within the four months prior to the 1968 head injury. The appellant's wife similarly testified. The appellant indicated that he was a roofer and painter by profession, but that he experienced seizures which precluded him from that type of work. In February 1994, the Board requested additional development. This development included obtaining additional treatment records and scheduling a VA neuropsychiatric examination. On VA examination in April 1994, the appellant reported having a "weird feeling" with respect to space and time since his head injury in service. He indicated that peculiar taste sensations were associated with these episodes. The appellant further indicated that he had not reported these complaints because he feared the physicians would infer the presence of psychological problems. He reported that 5 to 6-years earlier he first experienced a grand mal seizure and has since been diagnosed with a seizure disorder which is treated with Dilantin. He further reported the he has been unable to work since 1983 due to his seizure disorder. The appellant indicated that he has headaches occurring several times per month with 3 to 4 headaches per day. He reported pain, numbness, and vomiting associated with the headaches. On examination, there were no neurological defects found and it was noted that no abnormalities were shown on a computed tomography study from 1991. The impression was head trauma by history, complex partial and grand mal seizure disorder, and post-traumatic headache complaints. In July 1994, VARO received VA outpatient treatment reports dated July to November 1990 and private outpatient treatment reports dated October 1987 to March 1990. These reports reflected treatment for a seizure disorder along with headaches. In July 1994, a VA neurological examination was conducted. The appellant reported that about 3-years earlier he was diagnosed with post-traumatic epilepsy and that on three occasions he has had grand mal seizures, one before he started on Dilantin and two subsequent thereto. He further reported that with each grand mal seizure he has had the feeling of deja vu and gustatory hallucinations just before each seizure; and he has occasionally a shaking of the left arm just prior to the seizure. He indicated that his last seizure was 1-year earlier. He claimed that, in 1968, he fell from a roof because of such a seizure. The appellant's alcohol abuse was noted and it was indicated that he had been sober for as much as 18-months on occasion. On examination, there were no neurological deficits shown. The appellant was diagnosed with post-traumatic temporal lobe epilepsy and post-traumatic headaches. The examiner indicated that, in view of the nature of the appellant's seizure disorder along with his medical history, the appellant's seizure disorder appeared to be related to the head injury that occurred in 1968. II. Analysis The appellant is seeking service connection for a seizure disorder and a rating in excess of 10 percent for post-traumatic headaches. A. Service Connection for a Seizure Disorder Service-connection may be granted for a disability resulting from disease or injury incurred in or aggravated while on active duty. 38 U.S.C.A. § 1131 (West 1991). Furthermore, in the case of any disease diagnosed after discharge, service-connection may be granted when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Service-connection is presumed if a veteran manifests a chronic disease, such as epilepsy to a degree of at least 10 percent within one year after separation from service. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). While evidence of record shows that the appellant sustained a head injury in service and was later service connected for post- traumatic headaches as a result of that head injury, the Board notes that there were no complaints or findings of a seizure disorder during service or shortly thereafter. A seizure disorder was first noted on a private medical statement dated May 1990. Prior to May 1990, there is no indication that the appellant suffered from a seizure disorder. In addition, the record shows that the appellant sustained a second head injury in 1968 when he fell 30 feet off a roof which was medically related to his present seizure disorder on VA examination in July 1994. In weighing the evidence of record, the Board finds that the objective evidence of record does not establish a relationship between the presence a seizure disorder, first noted in May 1990 many years after discharge from service, and the head injury during service. While the service medical records reflect that the appellant sustained a head injury from an assault, there are no clinical findings relating the appellant's seizure disorder first noted in May 1990 to the head injury in service, and, moreover, there is affirmative evidence to suggest the seizure disorder is the result of an intercurrent head injury. The Board acknowledges the appellant's contentions with respect to the relationship between the onset of a seizure disorder after discharge and the head injury in service. Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). Furthermore, in light of the VA examination in July 1994 which reflects the examiner's opinion that appellant's seizure disorder is etiologically consistent with the head injury sustained in 1968 when he fell off a roof, the Board finds that the weight of evidence suggests that the intercurrent head injury is responsible for the appellant's seizure disorder. In view of the above, the undersigned concludes that the greater weight of the evidence of record indicates that the appellant's claimed seizure disorder is causally unrelated to his head injury during service. The relevant medical evidence persuades the Board that the appellant's present seizure disorder is related to the head injury in 1968 when he fell off a roof during work. The principal that the proof of an intercurrent injury is generally sufficient evidence that a current disability is not the result of a service-related injury is set forth in VA laws and regulations. 38 U.S.C.A § 1113(a); 38 C.F.R. §§ 3.303(b), 3.307(b)(1) (1994). In summary, no medical evidence of record affirmatively establishes the presence of a chronic seizure disorder during service, or shortly thereafter, or establishes any relationship between the development of seizure disorder many years after discharge and a head injury in service. The objective evidence of record relates the appellant's seizure disorder to a head injury many years after service. Accordingly, the evidence does not form a basis to warrant service connection. B. Increased Rating for Headaches, Residual of Head Trauma In view of the affirmative medical evidence for headaches due to head trauma in service and the appellant's sworn testimony, the Board concludes that the appellant's disability is more appropriately rated under diagnostic code 8100 for migraine headaches. See 38 C.F.R. Part 4, Diagnostic Code 8100 (1994). Diagnostic code 8100 prescribes that migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent and no more under diagnostic code 8100. The objective medical evidence of record reflects continuous treatment for headaches which have been recognized as residual symptoms of the head injury during service. At a personal hearing in March 1994 and during a VA examination in April 1994, the appellant reported that he experiences debilitating headache attacks on average once a month in the last several months; he further reported that his headaches were often accompanied by nausea, vomiting, photophobia, visual difficulties, and loss of appetite. This evidence when coupled with the statements from the appellant's wife, employer, and private physician, each of whom indicated that the appellant suffers from frequently prostrating headaches, viewed in light of the lack of evidence to the contrary, is considered sufficient to warrant a 30 percent disability evaluation under diagnostic code 8100. Based on the above findings, the Board concludes that the disability picture presented more nearly approximates a 30 percent evaluation under diagnostic code 8100. 38 C.F.R. §§ 4.3, 4.7, 4.20 (1994). Application of the extraschedular provisions is not warranted. 38 C.F.R. § 3.321(b) (1994). We believe that the 30 percent disability rating under diagnostic code 8100 adequately accounts for the level of disability presented, including such related factors as interference with employment. ORDER Service connection for a seizure disorder is denied. A 30 percent disability evaluation headaches is granted. 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.