Citation Nr: 1513156 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 11-11 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a seizure disorder, to include as secondary to service-connected depression. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to February 1981 and from March 1982 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDING OF FACT The Veteran's current seizure disorder is not shown to be related to his active duty or a service-connected disability. CONCLUSION OF LAW A seizure disorder was not incurred in or aggravated by the Veteran's active duty and was not due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.3216(a) (2014). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to the initial adjudication of the Veteran's above-captioned claim, the RO's December 2009 letter advised the Veteran of the requisite notice requirements. Id. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is required to provide have been met. See Pelegrini, 18 Vet. App. at 120. In addition, the duty to assist the Veteran has been satisfied in this case. The RO obtained the Veteran's available service treatment records and all identified post-service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 116. The Veteran was provided a VA examination in November 2013. The examiner reviewed the relevant evidence of record, considered the Veteran's statements, administered a thorough clinical evaluation, and rendered an opinion that address all of the salient questions presented by the Veteran's service connection claim. As such, the Board finds that the Veteran has been provided an adequate VA examination for purposes of adjudicating his service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield, 20 Vet. App. at 542-43; See also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974)("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). The Veteran seeks service connection for a seizure disorder, claimed as secondary to depression. In an October 2005 rating decision, service connection was granted for depression. The Veteran asserts that his current seizure disorder was proximately caused by taking Wellbutrin, a medication prescribed to treat the Veteran's depression. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disability, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may be established on a secondary basis for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995)(en banc). The evidence of record includes a current diagnosis of a seizure disorder. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). With regard to whether the Veteran's seizure disorder was proximately caused by taking Wellbutrin, the evidence of record consists of the Veteran's statements, post-service VA treatment records, and a November 2013 opinion from a VA examiner. During an August 2014 hearing before the Board, the Veteran testified that he was diagnosed with depression in approximately 2005, for which he was prescribed Wellbutrin. He indicated that he started having seizures while taking Wellbutrin, and that he believed the drug caused his current seizure disorder. The Veteran further testified that he began treating with his VA neurologist in 2007. The Veteran indicated that the VA neurologist told him that he may have been prone to having seizures his whole life, and that Wellbutrin triggered his seizure disorder. The Veteran further testified that the VA neurologist told him that once the seizure disorder is triggered, it will continue. The Veteran's statements are competent evidence as to factual matters of which he has first-hand knowledge, such as experiencing seizures at the time he asserts. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board finds that opining on a link between a particular medication and the development of a seizure disorder is more suited to the realm of medical expertise rather than lay testimony. See id. The evidence of record does not show that the Veteran has specialized training sufficient to render an opinion concerning the effects of anti-depressant medication and/or the etiology of seizure disorders. See Id. Accordingly, the Veteran's lay testimony is not competent evidence as to the etiology of his seizure disorder. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012) (holding that the Court of Appeals for Veterans Claims did not improperly discount lay evidence of a nexus where witnesses did not possess special training or expertise needed to establish medical causation). Additionally, to the extent that the Veteran is reporting what Dr. J. P. said to him, such testimony is competent evidence of a factual matter of which the Veteran has first-hand knowledge. See Layno, 6 Vet. App. at 469-70. However, as will be discussed herein, the Veteran's statements are not supported by the evidence of record. Consequently, the Veteran's testimony regarding what he was told about the etiology of his seizure disorder is of little probative value. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing credibility, VA may consider internal inconsistency and consistency with other evidence of record). VA treatment records indicate that the Veteran first reported episodes of syncope in February 2007. A February 2007 VA urgent care note indicates that the Veteran reported experiencing five episodes of syncope, which began approximately four months earlier. In August 2007, the Veteran was admitted to a VA Medical Center for evaluation of "multiple unexplained episodes of syncope," which the Veteran asserted began around February 2006. The Veteran reported about seven episodes of transient loss of consciousness from November 2006 to February 2007. An August 2007 neurology consult note indicates that a physician suggested that "Wellbutrin be tapered off given its effect on seizure threshold." An August 2007 cardiology inpatient note shows that the Veteran had a seizure-like activity while awaiting an electroencephalography (EEG). Subsequently, a physician recommended "titrating off Wellbutrin and starting a different anti-depressant," as Wellbutrin "is known to lower seizure threshold." Upon discharge, the Veteran's dosage of Wellbutrin was lowered from 100 milligrams twice daily to 75 milligrams twice daily. It was noted that that the Veteran's dose "will be slowly tapered down through psychiatry since it puts him at a higher risk for seizures." The August 2007 discharge summary prescribed Keppra, an anti-convulsant medication, and ordered further cardiology and neurology tests to determine the cause of the Veteran's syncope. A December 2007 infectious disease outpatient note indicates that the Veteran reported a history of seizures during a follow-up appointment for his human immunodeficiency virus (HIV) treatment. The record notes that "Neurology follows [the Veteran] and thinks that [the seizures] are secondary to Wellbutrin, possibly [an] interaction between Wellbutrin and the Sustiva component of Atripla." According to the record, the Veteran was scheduled to be completely off of Wellbutrin by early January 2008. The assessment was "[s]eizures secondary to Wellbutrin [and] possible interaction with Sustiva component of Atripla." A May 2008 infectious disease outpatient record notes that the Veteran's history of seizures was "most likely secondary to Wellbutrin[.]" An August 2008 infectious disease outpatient record notes a "history of seizures which seems to be induced on Wellbutrin." The record indicates that the seizures stopped after the Veteran began taking Keppra. An October 2008 infectious disease outpatient note shows that "[the Veteran had] a history of seizures which seem to be related to Wellbutrin use but are currently controlled on Keppra." In September 2009, the Veteran reported experiencing a seizure for the first time since he discontinued Wellbutrin. At the time, the Veteran's nurse practitioner opined that the Veteran likely had cough syncope exacerbated by his chronic obstructive pulmonary disease (COPD). The nurse practitioner advised the Veteran to stop smoking and recommended another cardiac work-up. In November 2009, the Veteran first started treating with his VA neurologist. A November 2009 neurology outpatient note indicates that the Veteran reported a history of HIV, hypertension, COPD, and seizures that started around 2006, after the Veteran began taking Wellbutrin. The VA neurologist noted that since the Veteran stopped taking Wellbutrin and started taking Keppra, he did not have any seizures until approximately October 2009. The VA neurologist increased the Veteran's Keppra dosage and also noted that: The etiology of his spells are unclear. They are not completely consistent with cough syncope, however they are not completely consistent with seizures as well. With that said[,] his seizures in the past were similar to this and he stopped having them with addition of Keppra. A November 2009 infectious disease outpatient note indicates that the Veteran had a history of seizures "which developed while he was on [Wellbutrin]." The treatment provider noted that: This occurred for the first time about [two] years ago and was thought due to the drug. The drug was stopped, and he was treated with Keppra. He actually subsequently has had seizures, and so it is clearly not just drug related. He remains on Keppra. He had some recent episodes for which he has [been] seen by Neurology, and they are increasing his dosage of Keppra because of this. It seems that these latest seizures were not tonic-clonic seizures but a variety of different syndromes that are well documented in the Neurology consult note. In July 2010, the Veteran's VA neurologist provided a diagnosis of "symptomatic epilepsy syndrome of uncertain cause with simple partial and secondarily [generalized tonic-clonic] seizures." A December 2010 neurology outpatient note indicates that the Veteran's episodes "first begin in 2006 with the starting of Wellbutrin." The neurologist opined that: Given [the Veteran's] history and exam[ination,] the exact etiology of his spells is unclear. At least one of his semiologies seems as if it may be epilepsy but most of his description of events sounds very unlikely to be true epileptic events. . . . Given the unlikelihood that the staring spells are indeed epilepsy, we would elect not to make any medication adjustments at this time. A January 2011 neurology emergency consult note indicates that the Veteran reported a history of seizures, which started after taking Wellbutrin in 2006. The note shows that the Veteran's seizures have increased in frequency. The neurologist noted that: [The Veteran] has two different semiologies of seizure. The episode today is consistent with a generalized tonic-clonic seizure. Given his history of an aura it may be partial in onset. The unresponsive staring episodes are more likely to represent non-epileptic spells. As both are increasing in frequency, it is reasonable to consider a change in his anti-epileptic regimen. In April 2011, the Veteran's VA neurologist noted that the Veteran had a "history of spells since 2006 that he correlates with taking [Wellbutrin]." The neurology outpatient record indicates that Wellbutrin was discontinued, and the Veteran was placed on levetiracetam and had no further spells until October 2009. The VA neurologist also noted that: Since then he has had multiple episodes that have raised concerns for seizures. . . . He continues to have frequent spells. Since his last visit in December 2011, he reports at least [four] seizures per month. In August 2011, the Veteran reported continued seizure activity occurring approximately three to four times a month. The Veteran's VA neurologist opined that: It is most likely that his spells are seizure-related, particularly since [the Veteran] becomes unresponsive during the events and is unable to recall them in retrospect; with that in mind, neurocardiogenic/vasovagal causes are less likely to be contributing to his symptoms. A November 2011 neurology outpatient note shows that a neurologist recommended another EEG to reevaluate for seizure activity and noted that: There is some concern that the coughing episodes, although the most infrequent[,] are related to hypoxia as [the Veteran] has COPD, is on [oxygen] and says that they are related to eating and feeling like food is getting caught in his throat. Of note, there is only one documented episode like this in the past month. An April 2012 neurology outpatient follow-up note indicates that the Veteran reported having approximately three episodes within the last two months. The physician noted that: Despite several changes in his medications over the years, his seizures are not well-controlled. . . . We feel further testing is warranted to rule out exacerbating factors/causes [such as] hormonal or electrolyte abnormalities. Will also obtain sleep deprivation EEG and possible long term EEG monitoring. A November 2013 VA examination report indicates that the Veteran was diagnosed with two seizure disorders in 2007. The examiner noted that the Veteran was HIV-positive and had pulmonary problems. The report indicates that the Veteran first experienced a generalized seizure in 2006 after starting Wellbutrin. The Veteran was prescribed 100 milligrams of Wellbutrin twice daily, with an increased dosage around 2007. After the Veteran stopped taking Wellbutrin, he did not experience seizures again until October 2009. The examiner indicated that at the time of the examination, the Veteran had three different types of seizures and provided the following etiological opinion: The question to be addressed is whether [the Veteran's] seizure disorder is due to taking Wellbutrin. Although Wellbutrin in higher doses can provoke a seizure, there is scant evidence that it can initiate a seizure disorder that continues years beyond the discontinuance of the drug. He was not on an excessive dosage of Wellbutrin. It is more likely than not that his ongoing seizure disorder is caused by his HIV infection rather than Wellbutrin which was stopped. Although the Veteran's VA treatment records are replete with references to his seizures being secondary to Wellbutrin, all of those notes predate the seizures that began nearly two years after discontinuing Wellbutrin. Once the Veteran's seizures reoccurred in 2009, the Veteran's treatment records do not contain opinions linking his seizure disorder to Wellbutrin. The evidence of record indicates that the Veteran's physicians continued to run tests in an effort to identify the cause and etiology of his seizures. In November 2009, the Veteran's VA neurologist noted that "the etiology of his spells [is] unclear." A November 2009 infectious disease outpatient record indicates that the Veteran's seizures were once thought to be caused by Wellbutrin, but the Veteran subsequently had seizures after discontinuing the drug. The treatment provider noted that "it is clearly not just drug related." In July 2010, the Veteran's VA neurologist provided a diagnosis of "symptomatic epilepsy syndrome of uncertain cause." Similarly, a VA neurologist noted in December 2010 that "the exact etiology of his spells is unclear." In April 2012, another VA neurologist noted that "[d]espite several changes in his medications over the years, his seizures [were] not well-controlled," and further testing was warranted "to rule out exacerbating factors/causes [such as] hormonal or electrolyte abnormalities." The opinions in the earlier treatment records linking the Veteran's seizures to Wellbutrin did not consider the fact that the Veteran continued to have seizures after discontinuing the drug, and they are not supported by the more recent opinions of the Veteran's physicians. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 31 (1998); Winsett v. West, 11 Vet. App. 420 (1998). The November 2013 VA examiner reviewed the Veteran's treatment records, to include earlier statements linking the use of the Wellbutrin to the Veteran's seizures, and considered the Veteran's statements regarding the date of onset of his seizures. The examiner also provided a thorough rationale indicating that there is "scant" evidence that Wellbutrin can initiate a seizure disorder that continues years after discontinuing the drug. Furthermore, the examiner's opinion is consistent with the Veteran's treatment records, which do not contain any opinions linking the Veteran's seizures to Wellbutrin after October 2009, when the Veteran started experiencing seizures despite discontinuing Wellbutrin nearly two years earlier. Therefore, the Board finds the etiological opinion of the November 2013 VA examiner highly probative. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 31 (1998); Winsett v. West, 11 Vet. App. 420 (1998). Finally, although the Veteran testified that that his VA neurologist told him that Wellbutrin triggered a seizure disorder that would continue after he stopped taking the drug, there is nothing in the treatment records to support this assertion. The evidence of record indicates that the Veteran first started treating with this VA neurologist in November 2009, nearly two years after discontinuing Wellbutrin. The Veteran's VA neurologist noted that the Veteran had a "history of spells since 2006 that he correlates with taking [Wellbutrin]." This neurologist indicated that "the etiology of his spells [is] unclear" and provided a diagnosis of "symptomatic epilepsy syndrome of uncertain cause." Consequently, the Board assigns limited probative value to the Veteran's testimony regarding what his VA neurologist told him about the nature and etiology of his current seizure disorder. See Caluza, 7 Vet. App. at 506. Accordingly, service connection for a seizure disorder not warranted, as the most probative evidence shows that the Veteran's current seizure disorder was not incurred in or aggravated by the Veteran's active duty and was not due to or aggravated by a service-connected disability. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for a seizure disorder, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a seizure disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs