Citation Nr: 1437852	
Decision Date: 08/25/14    Archive Date: 09/03/14

DOCKET NO.  09-25 068	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for a seizure disorder.

2.  Entitlement to service connection for an eye disability.

3.  Entitlement to service connection for a neck disability.

4.  Entitlement to service connection for a heart disability.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Suzie Gaston, Counsel


INTRODUCTION

The Veteran served on active duty from January 1990 to December 1991 and January 1995 to January 1999.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

On May 30, 2012, the Veteran appeared at the RO and testified at a video-conference hearing before the Board, sitting in Washington, DC.  A transcript of the hearing is of record.  

In October 2012, the Board remanded the case for further evidentiary development.  The Appeals Management Center (AMC) completed the requested development and issued a supplemental statement of the case (SSOC) in January 2013.  Review of the record reflects substantial compliance with the Board's Remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Veteran's VA claims file has been returned to the Board for further appellate proceedings.  

The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case.  


The issue of entitlement to service connection for an eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1.  The Veteran's seizure disorder was first manifested many years after military service and is not attributable to her period of military service.  

2.  A neck disability, diagnosed as degenerative joint disease of the cervical spine, was not manifest in service and is not attributable to service; arthritis was not shown within the initial post-service year.  

3.  The Veteran does not currently have a diagnosed heart disability.  


CONCLUSIONS OF LAW

1.  The Veteran does not have a seizure disorder that is the result of disease or injury incurred in active military service; epilepsy may not be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013).  

2.  A neck disability, to include degenerative joint disease of the cervical spine, was not incurred in active military service, and may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).  

3.  A heart disability was not incurred in service, and is not proximately due to or the result or chronically aggravated by service-connected disabilities.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist.

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If, however, VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In this case, VA satisfied its duty to notify by means of letters dated in February 2007, April 2007, December 2007, and March 2008 from the RO to the Veteran which was issued prior to the RO decision in April 2008.  An additional letter was issued in October 2012.  Those letters informed the Veteran of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence.  Accordingly, the requirements the Court set out in Pelegrini have been satisfied.  

Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence.  It also appears that all obtainable evidence identified by the Veteran relative to the claims decided herein has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of these claims.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claims, and to respond to VA notice.  

The Board is unaware of any outstanding evidence or information that has not already been requested.  The Veteran has been afforded a VA examination on the issues decided herein.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The examination afforded the Veteran is adequate.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).  The examination was conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, examined the Veteran, and provided explanations for the conclusions reached.  

Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence under the duty-to-assist requirements.  Therefore, no useful purpose would be served in remanding these matters for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

II.  Factual background.

The Veteran served on active duty from January 1990 to December 1991 and January 1995 to January 1999.  The service treatment records (STRs) for the first period of active duty were negative for any findings of seizures, a neck disorder or a heart disorder.  On the occasion of her separation examination in July 1991, clinical evaluation of the heart, neck and neurological system were normal.  In January 1998, the Veteran was referred to a clinic for evaluation of a heart murmur; examination was normal, with regular rate rhythm.  She was returned to full duty without limitations.  The Veteran was seen in February 1998 with complaints of low back pain for past 2 days.  The Veteran reported a history of muscle spasm six months ago.  The Veteran admitted that she had a motorcycle accident 7 years earlier and an auto accident 10 years ago, causing a pinched nerve in her neck.  She noted that the headaches started with the motorcycle accident.  The assessment was latissimus dorsi strain, bilateral.  In October 1998, the Veteran was diagnosed as having mid-back pain.  In January 1999, the Veteran presented with left-sided neck pain for the past month; she stated that the pain initially began back in 1991 after a motor vehicle accident.  She reported increased pain with stiffness.  The assessment was neck strain.  The STRs are completely negative for complaints or clinical findings of a seizure disorder.  

The Veteran's claim of entitlement to service connection (VA Form 21-4138) was received in February 2007.  Submitted in support of the claim were treatment reports from Baptist Health Center, dated from August 2006 to March 2007.  These records show that the Veteran received clinical attention and treatment for a seizure disorder, chronic back pain, migraine headaches and heart palpitations.  The records indicate that the Veteran went to the Emergency room in August 2006 after having a seizure; she was put on Dilantin.  That hospital report reflects diagnoses of seizure disorder, chronic back pain, migraine headaches, and palpitations (controlled).  

Received in May 2007 were treatment reports from Alabama Neurological Institute, dated from August 2006 to February 2007.  These records reflect ongoing treatment for a seizure disorder and headaches; she also received treatment for chronic neck pain.  During an initial visit in August 2006, it was noted that the Veteran experienced a seizure on August 7, with tonic-clonic activity; she reported a history of multiple febrile seizures as a child and a motor vehicle accident in 1991 with significant head trauma in which she had had a long period of loss of consciousness.  She reported a history of fainting or near syncopal episodes without clear focal motor or generalized activity, which have been described as fainting spells or possible seizures.  She has been on no anticonvulsant medications, however was on Topamax for treatment of migraine headaches for approximately three years.  She also reported a history of chronic neck and back pain after her motor vehicle accident for which she takes narcotic medications and Diazepam chronically.  Following an examination, the assessment was provoked seizure and possible underlying epilepsy.  When seen in September 2006, the Veteran reported continued headaches and pain in the neck with stiffness and tenderness over the cervical regional.  The pertinent diagnoses were migraines, paraspinal cervical muscle spasm; and generalized epilepsy.  In December 2006, the Veteran reported a history of headaches, now with new complaint of severe neck pain worse than before secondary to recent motor vehicle accident.  It was noted that the Veteran was scheduled to have an MRI of the brain and of the neck due to a previous history of questionable MS noted by the previous MRI; however, in the interim, she had apparently had a motor vehicle accident in which she actually lost consciousness.  There was a question as to whether she lost consciousness because of head trauma during the accident or because of seizure.  She has had severe neck pain sever since then.  The pertinent diagnoses were severe cervicalgia due to recent motor vehicle accident and neck trauma; generative disc disease at C5-C6, C6-C7 with disc desiccation; and generalized seizures, questionable control.  

Received in November 2007 were treatment reports from Malka Institute of Neuroscience, dated from April 2005 to May 2006.  These records show that the Veteran received treatment for headaches, neck pain and back pain.  During a clinical visit in March 2005, it was noted that the Veteran had a past medical history that is significant for headaches.  It was also noted that she had a car accident about a month ago and the headaches became worse after the car accident; she did not have any loss of consciousness or head trauma during the accident.  The headache was described as bifrontral dull pain radiating to the neck.  Following an evaluation, the examiner stated that the Veteran could suffer from tension headaches vs. migraine headaches; he also noted that neck pain could be secondary to cervical spondylosis or muscle spasms.  


Received in December 2007 were treatment reports from the Alabama Neurological Institute, dated from October 2005 through January 2007 reflecting ongoing treatment for a history of seizure disorder and a neck disorder, diagnosed as degenerative disc disease.  Also received in December 2007 were treatment reports from Dr. Dorothy Drugger, dated from October 2005 to January 2007, which reflect treatment primarily for a psychiatric disorder.  

Received in January 2008 were VA progress notes dated from July 2007 to January 2008.  These records show that the Veteran received follow up evaluation and treatment for headaches, a seizure disorder, and a chronic back disorder.  

Of record are VA progress notes dated from June 2008 through June 2009 reflecting treatment for various disabilities.  These records reflect a history of seizure disorder; however, they do not reflect any complaints of or treatment for an eye disorder, a neck disorder or a heart disorder.  

At her personal hearing in May 2012, the Veteran reported being involved in a motorcycle accident in service, during which she suffered a neck injury.  The Veteran related that she suffered a herniated disk and required neck surgery; she also had to undergo rehabilitation and was on crutches for three weeks.  The Veteran reported that she continued to receive treatment for the neck injury after service; in fact, she noted that she was currently being followed by a neurologist at the VA clinic.  The Veteran testified that she also hit her head during the accident; as a result, she suffered from headaches.  The Veteran also reported that diagnostic studies, following the accident, revealed lesions on her brain for which she is currently taking medications.  The Veteran further noted that the head injury has caused problems with her eyes; she stated that she began having eye problems during service.  The Veteran indicated that she now sees floating black spots in front of her eyes and she has no peripheral vision.  The Veteran also testified that she developed a seizure disorder as a result of the head injury she suffered during the in-service accident; she noted that her neurologist has reported that the seizures may also be caused by stress.  The Veteran related that she also suffers from irregular heartbeats; she has been told that she has mitral valve prolapse.  The Veteran maintained that her heart condition developed as a result of service because she never had any problems before service.  

The Veteran was afforded a VA examination in October 2012 for evaluation of the seizure disorder.  She reported that the symptoms started in August 2006, and are manifested by loss of consciousness and shaking of the arms and legs.  The Veteran related that the first seizure occurred after her divorce; she has no memory of events.  She noted that her sister witnessed the event.  The last one occurred in January 2007; she has had no seizures since then.  The Veteran related that she was in a motorcycle accident in 1991 while in the military; she denied any loss of consciousness during that accident.  She also denied any head trauma.  The examiner noted that the Veteran suffers from generalized tonic-clonic convulsions.  The Veteran had not had any major seizures in the past 2 years.  Following an evaluation, the examiner reported a diagnosis of tonic-clonic seizures or grand mal seizures (generalized convulsive seizures).  The examiner stated that the seizure disorder was likely than not incurred in or caused by the claimed inservice injury, event, or illness.  The examiner noted that there is reference to a motorcycle accident in 1988, which would have been prior to military service.  In April 1991, she had an emergency room visit after she fell down a couple of flights of stairs with complaints of pain in the left pelvic area extending to the left knee and ankle, with bruising of the left hip.  The examiner also noted that the separation physical of July 1991 was negative for any concussion or traumatic head injury.  The examiner further noted that a progress note in February 1998 related that the Veteran was seen for low back pain and it stated that she reported a history of a motorcycle accident 7 years ago; however, he noted that there is no documentation of the event in the claims folder.  Therefore, he concluded that it is less likely as not that the seizure disorder is due to or caused by military service.  The examiner further opined that the Veteran's seizure disorder was less likely as not aggravated by the service-connected migraine headaches or her service-connected psychiatric disorder.  



The Veteran also reported that she suffered a cervical spine injury as a result of the motorcycle accident that occurred in service in 1991.  The Veteran related that she lost control of the motorcycle and injured her neck.  She underwent neck surgery in March 2009 for degenerative disc disease.  The Veteran reported chronic daily pain and tightness in the neck.  The examiner noted that the Veteran had pain on movement and localized tenderness in the cervical spine.  Following a clinical evaluation of the cervical spine, the examiner reported a diagnosis of degenerative joint disease of the cervical spine.  The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner noted that the Veteran was treated for neck strain in January 1999; however, there was no evidence that her current neck disability, including the degenerative disc disease for which she had surgery in 2009, is due to or related to her claimed motorcycle accident or due to the episode of neck strain that was treated and resolved.  

The Veteran was also afforded an examination for evaluation of the claimed heart disorder.  The Veteran reported that she was having palpitations in 1994; at that time, an echocardiogram was done and she was diagnosed as having mitral valve prolapse.  She had to wear a holter for 24 hours and started on beta blocker in 2004; however, she has been off the medication since 2006.  The Veteran reported experiencing occasional palpitations, not sustained.  The examiner indicated that the Veteran does not now have nor has ever been diagnosed as having a heart condition.  The examiner noted that she does not have myocardial infarction, congestive heart failure, or cardiac arrhythmia.  The examiner added that the Veteran has never had infections of the heart nor pericardial adhesions.  Examination of the heart revealed normal rate and rhythm.  No jugular-venous distension was noted.  Auscultation of the lungs was normal.  No cardiac hypertrophy was noted.  A chest x-ray was normal.  In an addendum, dated in December 2012, the examiner noted that the Veteran was a no show for the echocardiogram.  He noted that cardiac examination was normal and there was no evidence to support a diagnosis of a valvular heart disease or heart valve condition.  Therefore, an opinion regarding the mitral valve prolapse is not indicated.  

III.  Legal Analysis.

Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C.A. §§ 1110, 1131.  To establish compensation for a present disability, a Veteran must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Holton v. Shinseki, 557 F.3d 1362 (2009).  

For certain chronic diseases, such as arthritis, cardiovascular disease, and epilepsy, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from service.  38 C.F.R. §§ 3.307, 3.309.  Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  

The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21. Vet. App. 303 (2007).  Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002).  

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  38 C.F.R. § 3.102.  

A.  Seizure disorder

The Veteran is seeking service connection for a seizure disorder, which she believes developed as a result of a head injury sustained during a motorcycle accident in service.  After review of the record, the Board finds that the preponderance of the evidence is against the claim.  

The service treatment records (STRs) do not show that the Veteran had a seizure disorder while on active duty.  The records are negative for any signs, symptoms, treatment, or diagnosis of a seizure disorder.  Although the Veteran has reported experiencing symptoms of a seizure disorder since service, the first clinical documentation of the onset of a chronic seizure disorder is dated in August 2006, more than 7 years following service discharge.  A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

In addition, there is no persuasive evidence indicating that there is a relationship between the Veteran's current seizure disorder and service.  The October 2012 VA examiner reviewed the medical records, examined the Veteran, and offered his opinion that the seizure disorder was less likely than not incurred in or caused by the claimed inservice injury, event, or illness.  The examiner noted that there is reference to a motorcycle accident in 1988, both that this would have been prior to military service.  The examiner also noted that the separation physical of July 1991 was negative for any concussion or traumatic head injury.  The examiner further noted that a progress note in February 1998 related that the Veteran was seen for low back pain and it stated that she reported a history of a motorcycle accident 7 years earlier; however, there is no documentation of the event in the claims folder.  Therefore, he concluded that it is less likely as not that the seizure disorder is due to or caused by military service.  There is no medical opinion of record to the contrary.  The Veteran has not submitted any competent medical evidence of a nexus to service.  The Board finds that the medical evidence is more convincing than the lay statements.  This is especially so because the Veteran's statement as to continuity of symptoms is contradicted by the STRs themselves, which do not reflect any incident or complaints of or seizure activity during service.  The Board therefore finds that the Veteran's statements of continuity are not credible.  The Board concludes that the evidence does not warrant a grant of service connection for a seizure disorder on a direct basis.  There is also no indication that a seizure disorder was manifested during the one-year period following separation from service.  38 C.F.R. §§ 3.307, 3.309.  

The preponderance of the evidence is also against a finding of service connection for a seizure disorder on a secondary basis.  The Veteran has argued that her seizure disorder was caused by her service-connected migraine headaches which developed as a result of the in-service head injury; however, a review of the evidence of record reveals that there is no competent evidence of a relationship between the Veteran's seizure disorder and her service-connected headaches.  Specifically, the only medical opinions of record that address the etiological question presented in this case discount a medical nexus between the Veteran's seizure disorder and her service-connected headaches or psychiatric disorder.  Following a VA examination in October 2012, the VA examiner stated that the Veteran's seizure disorder was less likely as not aggravated by the service-connected migraine headaches or her service-connected psychiatric disorder.  There is no medical opinion in the record to the contrary.  Thus, there is no favorable medical evidence showing that the Veteran's seizure disorder is related to service or her service-connected migraine headaches or her service-connected psychiatric disorder.  Rather, the uncontroverted medical evidence, consisting of VA medical opinions, opposes the claim.  

It would require medical or scientific expertise to say that claimed seizure disorder is related to a particular disability, to specifically include the service-connected.  This is not a matter that is subject to lay observation.  There is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation.  Hence, her lay assertions and testimony do not constitute competent evidence.  38 C.F.R. § 3.159(a).   

For the above-stated reasons, the Board concludes that there is no basis for finding entitlement to secondary service connection.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  The weight of the evidence is against the claim-it demonstrates that the Veteran's seizure disorder has not been medically linked to the service-connected migraine headaches or depression.  As the preponderance of the evidence is against the claim, it is denied.  38 U.S.C.A. § 5107(b).  

B.  Neck disorder

After review of the evidentiary record, the Board finds that service connection is not warranted for a neck disability, diagnosed as degenerative joint disease of the cervical spine.  Significantly, although the STRs reflect complaints of left-sided neck pain and stiffness in January 1999, at which time she was diagnosed as having neck strain, the remainder of the STRs are completely silent with respect to any complaints or diagnosis of a cervical spine disorder.  This suggests that the problem the Veteran experienced in January 1999 was acute and transitory, and such a conclusion is supported by the later VA medical opinion evidence.  In addition, there is no competent evidence of a relationship between a currently diagnosed cervical spine disorder and service.  Significantly, following the VA examination in October 2012, the VA examiner reviewed the medical records, examined the Veteran, and offered his opinion that the cervical spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner explained that, although the Veteran was treated for neck strain in January 1999, there is no evidence that her current neck disability, including DJD for which she had surgery in 2009, is due to or related to her claimed motorcycle accident or due to the episode of neck strain that was treated and resolved.  Absent competent evidence of a causal nexus between a current disability of the neck and service, the Veteran is not entitled to an award of service connection.  

The Veteran is certainly competent to state that she was involved in a motorcycle accident in service; however, her opinion that her disability is related to service is not probative.  The Board finds that the etiology of the Veteran's degenerative joint disease of the cervical spine, manifested years after her period of service, is too complex a medical question to lend itself to the opinion of a layperson.  

In summary, the evidence clearly points to a post-service onset of the Veteran's current neck disorder.  There is a lack of competent evidence of pathology or treatment in proximity to service or within years of separation from service.  The Board finds the negative and silent record to be far more probative than the Veteran's unsupported assertions.  Rather, the competent evidence tends to show that any current neck disorder is not related to service.  Absent competent evidence relating the current neck disorder to service, the claim of entitlement to service connection must be denied.  In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran.  




C.  Heart disability

In this case, the Veteran seeks service connection for a heart disorder, to include as secondary to her service-connected psychiatric disorder.  

Significantly, the first requirement for any service-connection claim is that the Veteran has to initially establish she has the claimed condition.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the veteran has it; without this minimum level of proof, there is no valid claim).  In Brammer, the Court noted that Congress specifically had limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997).  In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) reiterated that this requirement of current disability is satisfied when the claimant has the disability at the time the claim or application for VA disability compensation is filed or during the pendency of the claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim.  

In this case, the Veteran's STRs make no reference to the heart.  They are completely unremarkable for any complaint or diagnosis of a heart disorder or any abnormal findings suggestive of this or referable to the heart.  In short, there is no evidence of complaints of, treatment for, or a diagnosis of a heart disorder or symptomatology thereof during service, which is probative evidence against her claim.  See Struck v. Brown, 9 Vet. App. 145 (1996).  

More importantly, there simply has been no competent and credible evidence-medical or otherwise-that the Veteran has a clinical diagnosis of a heart disorder since filing this claim for service connection.  Specifically, even though VA treatment records indicate that the Veteran received treatment for complaints of irregular heartbeat and palpitations, and she claimed to have been diagnosed as having mitral valve prolapse, the record does not reflect that she has ever been diagnosed as having any form of heart disease.  In fact, following a VA examination in October 2012, the VA examiner stated that the Veteran does not now have nor has ever been diagnosed as having a heart condition.  The examiner noted that she does not have myocardial infarction, congestive heart failure, or cardiac arrhythmia.  The examiner added that the Veteran has never had infections of the heart nor pericardial adhesions.  A chest x-ray was normal.  In an addendum, dated in December 2012, the examiner noted that the Veteran was a no show for the echocardiogram.  He noted that cardiac examination was normal and there was no evidence to support a diagnosis of a valvular heart disease or heart valve condition.  Therefore, an opinion regarding the mitral valve prolapse is not indicated.  The Veteran has not provided any competent medical evidence to contradict the opinion against the claim or otherwise diminish its probative weight.  See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).  

The Veteran, as a layperson, is not competent to diagnose herself with a heart disorder or heart disease based on an examination and/or testing as there is no indication that she has the required expertise to administer the medical examination and/or test or the education or experience to interpret the results.  In this regard, the Court has held that, although the Veteran, as a lay person, is competent in certain situations to provide a diagnosis of a simple condition, such as a broken leg or varicose veins, she is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Therefore, because diagnosing a heart disorder or heart disease is complex in nature, the Board finds that the Veteran is not competent to diagnose such a disorder or disease.  

Consequently, the Board finds that the Veteran does not have a current diagnosis of a heart disorder or heart disease at the time she filed her claim or at any time during the pendency of his claim.  In the absence of proof of a present disability, there can be no valid claim for service connection.  Therefore, the Veteran's claim for service connection for a heart disorder must be denied.  

In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a heart disorder.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  


ORDER

Service connection for a seizure disorder is denied.  

Service connection for a neck disorder is denied.  

Service connection for a heart disorder is denied.  


REMAND

A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand.  Stegall v. West, 11 Vet. App. 268 (1998).  

After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. 

In the October 2012 remand, the Board instructed the RO to afford the Veteran a VA examination for the purpose of identifying the nature and etiology of her claimed eye disorder.  The examiner was asked to provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current eye disability identified on examination or otherwise documented in the record, including any eye disability manifested by decreased visual acuity, loss of peripheral vision, or floaters, is causally related to the appellant's active service or any incident including a claimed April 1991 motorcycle accident in which the appellant reports sustaining a head injury.  The examiner was also asked to provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any eye disability identified on examination is causally related to, part and parcel of, or aggravated by any of the Veteran's service-connected disabilities, including her service-connected migraine headache disability or her service-connected psychiatric disability.  

The record reflects that the Veteran was provided an eye examination in October 2012.  It was noted that heterochromia and mild ptosis of the right eye were noted at birth, and floaters were noted a few years ago.  Visual acuity for both distance and near was 20/40 or better in both eyes.  Pupils were round and reactive to light.  No anatomical loss was noted.  No astigmatism was noted.  No diplopia was noted.  The pertinent diagnoses were non-pathologic floaters; ptosis, OD; and heterochromia.  The examiner stated that the claimed eye conditions were less likely than not incurred in or caused by the claimed inservice injury, event or illness.  The examiner explained that vision and visual fields were normal, and floaters were non-pathologic.  He stated that no eye problems were aggravated by service.  

Although the October 2012 opinion addressed direct causation, the examiner only partially addressed secondary causation, as he failed to provide an opinion on whether any current eye disorder was causally related to, part and parcel of, or aggravated by any of the Veteran's service-connected disabilities, including her service-connected migraine headache disability or her service-connected psychiatric disability.  Thus, the opinion was inadequate.  Once VA provides an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  

Given the foregoing, the Board finds that there has not been substantial compliance with the October 2012 remand, and that it may not proceed with a decision on this issue at this time.  Id.  Accordingly, a remand is required to return the claims files to the examiner in order to supplement the opinion, or, if the examiner who performed the October 2012 VA examination is no longer available, to afford the Veteran a new examination, and to obtain another opinion.  

To ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, this case is REMANDED for the following actions:

1.  Return the Veteran's claims file for review by the examiner who performed the Veteran's October 2012 VA examination for a more detailed and responsive opinion regarding the etiology of the Veteran's eye disorder.  The claims folder should be provided to the examiner for review.  The report should include a discussion of the Veteran's documented medical history and assertions.  Another examination of the Veteran need not be conducted unless the examiner determines that one is necessary.

a) After reviewing the claims folder, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current eye disability identified on examination or otherwise documented in the record, including any eye disability manifested by decreased visual acuity, loss of peripheral vision, or floaters, is causally related to the Veteran's active service or any incident including an April 1991 motorcycle accident in which the Veteran reports sustaining a head injury.  

The examiner should also provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any eye disability identified on examination is causally related to, part and parcel of, or aggravated by any of the Veteran's service-connected disabilities, including her service-connected migraine headache disability or her service-connected psychiatric disability.  

b) In the event that the examiner who conducted the Veteran's October 2012 examination is not available, schedule the Veteran for an appropriate VA examination with another examiner in order to ascertain the nature and etiology of any eye disorder found.  The examiner should then express an opinion as to whether it is at least as likely as not that any current eye disability identified on examination or otherwise documented in the record, including any eye disability manifested by decreased visual acuity, loss of peripheral vision, or floaters, is causally related to the Veteran's active service or any incident including an April 1991 motorcycle accident in which the Veteran reports sustaining a head injury.  

The examiner should also provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any eye disability identified on examination is causally related to, part and parcel of, or aggravated by any of the Veteran's service-connected disabilities, including her service-connected migraine headache disability or her service-connected psychiatric disability.  

The examiner must provide a detailed rationale for his/her opinion.  The claims folder must be made available to and reviewed by the examiner in conjunction with the scheduled examination, and the examiner should state that the entire claims file has been reviewed.  

Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.  

2.  Thereafter, the AOJ should readjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations.  If the benefit sought on appeal remains denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations.  The SSOC must provide reasons and bases for the decision reached.  Thereafter, the Veteran and her representative should be given the opportunity to respond.  

After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order.  By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case.  The purposes of this REMAND are to further develop the record and to accord the Veteran due process of law.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). 



____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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