Citation Nr: 1519990	
Decision Date: 05/08/15    Archive Date: 05/19/15

DOCKET NO.  08-38 403	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for a seizure disorder with memory loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Caylor, Associate Counsel

INTRODUCTION

The Veteran had active naval service from October 1963 to February 1965.

This matter comes before the Board of Veterans Appeals (Board) from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Board previously remanded the claim for additional development in May 2011 and January 2014. 

The Veteran testified before the undersigned Veterans Law Judge during a January 2011 Travel Board Hearing.  A transcript is of record.  

The Board has reviewed the Virtual VA and Veterans Benefits Management System (VBMS) claims files.


FINDING OF FACT

The Veteran does not have a persistent seizure disorder and his complaints of memory loss and diagnosis of cognitive disorder, not otherwise specified (NOS), are not the result of VA hospital care, medical or surgical treatment, or examination.


CONCLUSION OF LAW

The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for a seizure disorder with memory loss have not been met.  38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Procedural Duties.

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014).  VA provided notice regarding the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for a seizure disorder with memory loss in December 2007.  

VA also satisfied its duty to assist the Veteran in the development of his claim.  

VA satisfied its duty to seek relevant records.  The RO associated the Veteran's service treatment records (STRs), service personnel records (SPRs), VA treatment records, and private treatment records with the claims file.  While the record does not appear to contain treatment notes from May 1990, the time of the Veteran's initial closed head injury, to July 1996, private neurologist Dr. Rose's February 2003 Report and private neurologist Dr. Kent's September 2009 and November 2009 Reports include a review of treatment records from that period.  While the January 2005 records from the Veteran's initial post-seizure hospitalization at Sharp Rees-Stealy Medical Group are not of record, VA treatment records regarding the Veteran's hospitalization after transfer from Rees-Stealy Medical Group contain a review of relevant diagnoses and treatment.  The Veteran has not identified any evidence not already of record; therefore, the Board concludes VA has made every reasonable effort to obtain all relevant records.

VA satisfied its duty obtain a medical examination or opinion when required.  VA provided the Veteran with a medical examination addressing his claim in June 2011 and obtained an addendum opinion from the same examiner in February 2014.  The combined opinion of the VA examiner is adequate, as the examiner reviewed the claims file, provided a detailed medical history, and supported the opinion with a medical rationale.  

While the February 2014 VA examiner did not provide an opinion regarding whether the Veteran's claimed seizure disorder and memory loss were reasonably foreseeable events associated with VA treatment, the opinion remains adequate, and no further development is needed to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  The February 2014 VA examiner was only asked to provide an opinion regarding reasonable foreseeability if it was found that the Veteran developed additional disability in the form of seizures and/or memory loss resulting from VA treatment, including treatment with Wellbutrin.  As discussed below, the February 2014 VA examiner, and the preponderance of the competent, credible, and probative evidence of record, did not appear to find that any additional disability developed due to the Veteran's VA treatment or his January 2005 seizure event; therefore, the Veteran will not be prejudiced.

The Veteran's January 2011 Travel Board hearing focused on the elements necessary to substantiate the claim; the Veteran demonstrated actual knowledge of those elements; questions were framed to explore the basis for the claim; and the undersigned Veterans Law Judge considered whether any evidence was overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492, 497-498 (2010) (holding that under 38 C.F.R. § 3.103(c)(2) a hearing officer must "explain fully the issues" and "suggest the submission of evidence that may have been overlooked").  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) (2014) or identified any prejudice as a result of the hearing.  

As VA satisfied its duties to notify and assist the Veteran, no further action is needed to comply with 38 U.S.C.A. § 5103(a), 38 U.S.C.A. § 5103A, or 38 C.F.R. § 3.159, and he will not be prejudiced by the adjudication of his claim.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Merits of the Claim.

The Veteran contends that in June 2004 a VA psychiatrist's Wellbutrin prescription was improper because he had a history of prior head injuries, causing him to have a seizure and be hospitalized in January 2005.  See August 2009 Statement; November 2009 VA Traumatic Brain Injury Evaluation; June 2011 VA Treatment Records; September 2011 Statement; Transcript of Record pp. 3-6; October 2013 Statement.  He also contends that anticonvulsive medications caused his memory problems.  See Transcript of Record pp. 15-18; August 2009 VA Neurology Treatment Notes.

Compensation under 38 U.S.C.A. § 1151 is granted for additional disability or death if the additional disability or death was not the result of willful misconduct, the actual cause of the additional disability or death was VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was either carelessness, negligence, lack of proper skill, error in judgment or similar fault, or an event not reasonably foreseeable.  38 U.S.C.A. § 1151(a); 38 C.F.R. §§ 3.361(c), (d).

The existence of additional disability is determined by comparing the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination that forms the basis of the claim for compensation to the Veteran's condition after the care, treatment, or examination has ended.  38 C.F.R. § 3.361(b).  

However, the mere fact that the Veteran received care, treatment, or examination and has an additional disability does not establish actual causation.  Evidence must show that the VA hospital care, medical or surgical treatment, or examination resulted in additional disability or death.  38 C.F.R. § 3.361(c)(1).  

The proximate cause of disability or death is the action or event that directly caused the disability or death.  It must be more than a remote contributing cause.  38 C.F.R. § 3.361(d).  The proximate cause is VA carelessness, negligence, lack of proper skill, error in judgment, or examination if VA either failed to exercise the degree of care expected of a reasonable health care provider, or provided hospital care, medical or surgical treatment, or examination without the Veteran's informed consent.  38 C.F.R. §§ 3.361(d)(1), 17.32.  Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b) (2014).  

Whether the proximate cause of additional disability was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable, only an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. See 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. §§ 3.361, 17.32 (2014).

The proximate cause of additional disability or death is an event not reasonably foreseeable if a reasonable health care provider would not have considered the event an ordinary risk of the provided treatment.  

If the additional disability or death was caused by the Veteran's failure to follow properly given medical instructions, then the additional disability or death was not caused by VA hospital care, medical or surgical treatment, or examination.  38 C.F.R. § 3.361(c)(3).  

Further, VA hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of the disease or injury for which it was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361(c)(2).  

The Veteran is competent to report that he had never experienced seizures prior to being prescribed Wellbutrin in June 2004 and having a seizure in January 2005.  See Transcript of Record pp. 6, 9; Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  His reports are credible and entitled to probative weight, as nothing in his treatment records reveals any complaints or treatment related to a seizure prior to June 2004.  

The record does not, however, appear to demonstrate that he developed additional disability after taking Wellbutrin in 2004 and having a seizure in January 2005.  

Regarding the claimed seizure disorder, while the Veteran experienced events in January 2005 and May 2007, the preponderance of the medical evidence of record attributes the smaller events that occurred after the initial January 2005 seizure to withdrawal from alcohol or Valium, a reaction to Dilantin, or prior head trauma, and attributes the 2007 event to a reaction to the sedative etomidate, which had been administered during a routine colonoscopy.  See January 2005 VA Treatment Records (suspecting partial seizures with secondary generalization are related to prior head trauma and possibly alcohol abuse); February 2005 Dr. Rose Report (stating that the Veteran went into withdrawal from chemical dependency to Valium); May 2007 VA Treatment Records (assessing a history of having had a seizure following receipt of etomidate for sedation for polyp removal during a routine colonoscopy); June 2011 VA Neurology Examination (noting that an allergic reaction to Dilantin in January 2005 caused anaphylaxis).  

The record does contain evidence that Wellbutrin may have lowered the Veteran's threshold for seizures; however, VA and private neurologists found that the Veteran's January 2005 seizure was ultimately posttraumatic and related to his prior head injuries.  See February 2005 VA Treatment Records (questionable seizure from Wellbutrin, now discontinued); March 2007 Dr. Rose Report (assessing evidence of one grand mal seizure episode secondary to drug reaction to Wellbutrin); January 2005 VA Treatment Records (discontinuing Wellbutrin prescription due to possibly lowering seizure threshold).  But see January 2005 VA Treatment Records (possible triggers for new-onset seizure activity include abnormal activity from areas of brain injured by trauma and falls, alcohol withdrawal, or infection); id. (reporting recent fall onto ceramic floor and the side of a pool a few days before the seizures); id. (assessing seizure, likely posttraumatic, given clinical history and CT finding of encephalomalacia); November 2009 Dr. Kent Report (noting that the causation of the January 2005 seizure remained in doubt, but opining that the Veteran suffered an alcohol withdrawal seizure); id. (opining that the Veteran's posttraumatic head syndrome was a direct result of the June 2000 workplace head injury). 

The Board gives great probative weight to the findings of both VA and private neurologists that the Wellbutrin prescription may have lowered the Veteran's seizure threshold or precipitated the January 2005 seizure and resolves all reasonable doubt in favor of the Veteran on this point.  However, the preponderance of the medical evidence of record does not establish that it was an actual cause of his May 2007 event, as his Wellbutrin prescription had been immediately discontinued over two years earlier upon admission to a VA hospital in January 2005 and he was not taking Wellbutrin when the May 2007 seizure event occurred.  Further, the preponderance of the medical evidence of record does not establish that the Veteran's January 2005 seizure event resulted in any lasting seizure disorder.  

The June 2011 VA neurology examiner diagnosed the May 2007 event as a medication-induced seizure and opined that, while a seizure disorder was at one time part of the Veteran's differential diagnoses, he did not have a persistent seizure disorder.  The rationale was that the Veteran had been seizure-free despite being off of anticonvulsants, there were no seizure-related activity or driving restrictions, and October 2009 VA neuropsychological treatment notes did not reveal a clear indication of any cognitive deficits other than very mild deficits naming common objects and slowed processing speed unrelated to the seizures.  See June 2011 VA Neurology Examination and February 2014 Addendum; see also November 2007 VA Brain MRI (finding no evidence of acute intracranial injury); November 2009 VA TBI Evaluation (finding no clear indication of any significant cognitive deficits despite TBI in 1990, multiple seizures, extensive alcohol abuse, multiple falls, and neuroimaging evidence of frontal lobe and subcortical damage).  Further, the Veteran's irregular use of prescribed pharmaceutical treatment may have contributed to his lower seizure thresholds.  See June 2011 VA Neurology Examination (noting that Dr. Denning, after performing the October 2009 neuropsychological tests, indicated that the Veteran's "purposeful, idiosyncratic, and variable administration of medications may be contributing to perceived cognitive difficulties . . . or other medical/mood complications (e.g., lower seizure thresholds, mood symptoms)."  

While the Veteran believes he has a seizure disorder due to taking Wellbutrin and having a seizure in January 2005, he is not competent to provide a diagnosis in this case.  Jandreau, 492 F.3d at 1377, 1377 n.4.  The issue is medically complex, involving multiple major organ systems, and requires specialized knowledge and experience.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating the need for supporting medical evidence in claim for rheumatic heart disease).  Further, during his June 2011 VA Neurology Examination, the Veteran denied having had any additional seizures, epilepsy, or a seizure disorder.

Regarding the claimed memory loss, the Veteran is competent to report that he experienced perceived memory difficulty following his January 2005 seizure and subsequent use of anticonvulsant medication, and his reports are credible and entitled to probative weight, as treatment records reflect a diagnosis of cognitive disorder, NOS.  Jandreau, 492 F.3d at 1377, 1377 n.4; August 2009 VA Neurology Treatment Records; July and August 2011 VA Psychiatric Treatment Records.  The medical evidence of record does not, however, appear to contain evidence that the Welbutrin prescription, January 2005 seizure, and subsequent anticonvulsant medications were the proximate cause of any of the Veteran's memory-related complaints or symptoms.  The preponderance of the medical evidence of record does not appear to establish that the Veteran developed any additional cognitive or memory disability following the January 2005 seizure event.  October 2009 VA neuropsychological treatment notes failed to indicate that he had any cognitive deficits other than mild naming deficits and slowed processing speed, which were found to be unrelated to the January 2005 event.  See June 2011 VA Neurology Examination and February 2014 Addendum; see also November 2007 VA Brain MRI (finding no evidence of acute intracranial injury); November 2009 VA TBI Evaluation (finding no clear indication of any significant cognitive deficits despite TBI in 1990, multiple seizures, extensive alcohol abuse, multiple falls, and neuroimaging evidence of frontal lobe and subcortical damage).  

The record indicates that his complaints of memory difficulties began several years prior to being prescribed Wellbutrin in June 2004, having a seizure in January 2005, and subsequently taking anticonvulsant medication.  See August 2000 Dr. Ford Report (diagnosing complaints of problems with memory, particularly for recent events, and concentration since June 2000 as posttraumatic head syndrome); February 2003 Dr. Rose Report (noting complaints of memory and concentration difficulties in Dr. Ford treatment records from July to October of 2001); June 2004 VA Treatment Records (complaining of poor memory and reporting that Dr. Rose planned for a head computerized tomography scan); April 2005 Social Security Disability Report (alleging memory and seizure issues due to June 2000 workplace head injury); November 2009 Dr. Kent Report (noting August 2004 brain magnetic resonance imaging (MRI) results in September 2004 Dr. Rose treatment records revealed mild generalized cerebral atrophy, encephalomalacia, and chronic parenchymal signal alterations within bilateral frontal lobes).

Further, both before and after the January 2005 seizure, the Veteran's complaints and symptoms of memory and concentration difficulties were attributed primarily to a traumatic brain injury (TBI) from a 1990 motor vehicle accident (MVA) or a workplace head injury in June 2000.  See August 2000 Dr. Ford Report (diagnosing reported problems with memory, particularly for recent events, and concentration since June 2000 workplace accident as posttraumatic head syndrome); February 2003 Dr. Rose Report (diagnosing cerebral concussion syndrome and traumatic cephalgia and finding the Veteran had significant problems directly related to his June 2000 workplace injury); June 2004 VA Treatment Records (reporting that private neurologist Dr. Rose planned for a head CT due to his history of repeated concussions and complaints of memory loss); July 2006 San Diego Nerve Study Center Treatment Records (opining that the Veteran had severe pre-existing head injury beyond a concussion prior to his June 2000 workplace head injury, complicated by a prior history of alcohol excess); March 2007 Dr. Rose Report (diagnosing previous cerebral concussion with minor hemorrhage and subsequent cerebral concussion with significant residual symptoms); id. (noting CT scan was normal and a brain MRI showed injuries occurred after the June 2000 workplace injury); November 2009 Dr. Kent Report (diagnosing posttraumatic head syndrome with dizziness or vertigo and opining that the Veteran's symptoms, including memory difficulty, depression, insomnia, and emotional lability, are all a direct result of his June 2000 workplace head injury); November 2009 VA TBI Evaluation (noting that treatment records show onset of memory problems and depression secondary to 1990 MVA and that the Veteran's January 2005 seizures were suspected to be the result of frontal lobe encephalomalacia secondary to severe TBI in 1990); June 2011 VA Neurology Examination and February 2014 Addendum (noting that the Veteran was not continued on anticonvulsants and October 2009 neuropsychological testing only reflected mild slowed processing and naming consistent with deficits from the Veteran's known 1990 MVA injury).  

While he believes his complaints of memory difficulty and diagnosis of cognitive disorder, NOS, are the result of VA treatment, the Veteran is not competent to provide a medical diagnosis or nexus in this case.  Jandreau, 492 F.3d at 1377, 1377 n.4.  The issue is medically complex, involving multiple systems of the body, and requires specialized knowledge and experience.  See Woehlaert, 21 Vet. App. at 462.  Moreover, the purported irregular use of prescribed medications may have contributed to his perceived cognitive difficulties or mood complications.  See June 2011 VA Neurology Examination.

Moreover, the record also does not appear to establish that any failure on the part of a VA medical practitioner to timely diagnose and properly treat the Veteran's neurological issues proximately caused the continuance or natural progress of the Veteran's neurological complaints or symptoms.  While the record contains evidence that the Wellbutrin prescribed in June 2004 by a VA psychiatrist may have, in combination with his history of prior head injuries, lowered the Veteran's threshold for seizures, the record reveals that upon admission to a VA hospital in January 2005 for the seizure, the Wellbutrin prescription was immediately discontinued because it was recognized that it could lower the Veteran's threshold for seizures.  See November 2009 VA TBI Evaluation (stating that records indicate Wellbutrin prescription was discontinued not necessarily because it had caused the seizures, but to reduce the risk of additional seizures).  Further, the June 2011 VA neurology examiner opined that it was less likely than not that there was any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in prescribing Wellbutrin.  The rationale was that a history of prior head injuries is a clinical condition to be considered before prescribing Wellbutrin, but is not by itself an absolute contraindication for the use of Wellbutrin.  Further, the Veteran was started on a lower dose of the medication and titrated; and the clinician noted the history of head injuries and evidence in the record that previous brain imaging was negative, and at the time the Veteran had no history of seizures.  

While the Veteran contends that the VA pharmacist at the San Diego VA Medical Center failed to tell him that having a seizure was a possible side effect of taking Wellbutrin, as discussed above, the preponderance of the medical evidence of record does not appear to establish that he developed any additional seizure or memory disability following or as a result of the treatment with Wellbutrin or January 2005 seizure event.  The Veteran's additional disability-memory difficulty or cognitive disorder, NOS-has been attributed primarily to head injuries that happened several years prior to the Veteran's January 2005 seizure.  Further, the Wellbutrin was immediately discontinued upon admission to the VA hospital, the other January 2005 events were attributed to a reaction to Dilantin or Valium or alcohol withdrawal, his May 2007 seizure was attributed to a reaction to a sedative, and the June 2011 VA neurology examiner found he did not have a persistent seizure disorder due to Wellbutrin.  See July 2001 VA Psychiatric Treatment Records (reporting memory loss and depressive episodes following June 2000 workplace head injury); January 2003 Dr. Rose Report (reporting increasing dizziness, causing numerous falls); September 2004 Dr. Rose Report (reporting head injury in 1993 or 1994); January 2005 VA Treatment Records (reporting December 2004 fall on ceramic floor with loss of consciousness and being diagnosed with vertigo secondary to MVA in 1990); November 2009 Dr. Kent Report (opining that the Veteran's falls are the result of a polyneuropathy resulting from ongoing alcohol abuse and posttraumatic head syndrome with dizziness and vertigo); October 2010 VA Treatment Records (reporting multiple falls, eight concussions).  

Regardless, as discussed in the Procedural Duties Section, even if the Board found the Veteran's implied assertion that he would not have taken the Wellbutrin had he known it might have lowered his threshold for seizure credible and probative, and then found that a reasonable person in the Veteran's position would not have taken the medication knowing that risk, the record would still not support the finding that any additional disability was attributable to the Wellbutrin prescription, January 2005 seizure, or anticonvulsant medication.  As noted above, both VA and private neurologists attributed his complaints and symptoms solely or primarily to a June 2000 workplace head injury or 1990 MVA, both of which took place several years prior to the use of Wellbutrin and the January 2005 seizure event.  Moreover, the Board reiterates that the record contains evidence that some of the Veteran's symptoms may have been due to the failure to follow properly given medical instructions regarding his prescriptions.  38 C.F.R. § 3.361(c)(3); November 2009 VA TBI Evaluation; October 2010 VA Treatment Records (reporting having stopped taking oxcarbazepine on his own).

The Board acknowledges the Veteran's assertion, and several lay statements asserting, that he has not used alcohol or drugs, but due to internal inconsistency and inconsistency with reports and findings in contemporaneous medical treatment notes, the Veteran and the individuals who provided buddy statements do not appear to be reliable historians.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (holding that credibility can be generally evaluated by a showing of inconsistent statements and internal inconsistency).  The Veteran did report abstinence from alcohol for periods of his life; however, several VA and private treatment records reveal that he has undergone substance abuse treatment and tested positive on a drug test.  See May 1997 VA Alcohol Dependency History Form (reporting drinking one quart of alcohol daily for previous 30 years); May and June of 2001 Dr. DeVoss Treatment Records (noting concern that alcohol abuse after injury and personality style were exacerbated to almost a personality disorder level of impairment); January 2005 VA Treatment Records (Veteran reported previous history of heavy ETOH use, with no alcohol in previous 10 years although contradicted by roommate, and examiner noting that the Veteran's blood-alcohol level was under 10 on admission and including history of closed head injury and alcohol withdrawal in differential diagnosis for seizures); November 2009 VA TBI Evaluation (reporting having had one drink per day during 2004 and 2005); November 2009 Dr. Rose Report (describing a January 1998 entry of Dr. Cohen reporting, in pertinent part, alcohol dependence possibility first occurred in 1986, relapse in July 1996, abstinent January 1997 through July 1997, relapse July 1997 through October 1997, and abstinent since October 1997, and describing a March 2001 entry of Dr. DeVoss in which it was reported that the Veteran had been sober for four years prior to the June 2000 injury, but began to drink again after the injury to calm himself); November 2009 Dr. Kent Report (opining that the Veteran suffered an alcohol withdrawal seizure); February 2011 VA Treatment Records (diagnosing iatrogenic benzodiazepine dependence, cannabis abuse based on positive lab test, and history of alcohol abuse).  

Accordingly, the preponderance of the evidence is against the claim for compensation under 38 U.S.C.A. § 1151.


ORDER

Compensation under 38 U.S.C.A. § 1151 for a seizure disorder with memory loss is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs