Citation Nr: 1306985 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 06-00 153 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1992 to December 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Houston, Texas VARO. In February 2009 and in June 2010, the Board remanded the matter for additional evidentiary development. The Veterans Law Judge who issued those remands has retired. The case was reassigned to the undersigned, who remanded the matter in March 2012. FINDING OF FACT A seizure disorder was not manifested in service; epilepsy or an organic disease of the nervous system was not manifested in the first postservice year; and any current seizure disorder is not shown to be related to the Veteran's service. CONCLUSION OF LAW Service connection for a seizure disorder is not warranted. 38 U.S.C.A. 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. November 2003 and July 2007 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The July 2007 letter also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and some pertinent postservice treatment records have been received/secured. [The Board observes that records of private evaluations/treatment during service and in the proximate years thereafter associated with the record appear incomplete. They were submitted by the Veteran, and he has indicated that further records were destroyed. Accordingly, further development for such records is not indicated.] The RO arranged for VA examinations in October 2007, August 2009 (with November 2009 opinion), December 2010 (with December 2010 and April 2012 addendum opinions), and December 2012, which the Board finds to be cumulatively adequate for reasons that will be discussed below. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The Veteran claims that he has a seizure disorder that had its onset during his active duty service.. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis pertaining to a seizure disorder. They show that the Veteran was evaluated and treated for obsessive-compulsive /eating disorder and dysthymia [Panic disorder with history of depression is service-connected]. An October 1996 notation in the STRs indicates that the health record was reviewed for separation; that no defects were noted; and that an examination was not required. A report of a private EEG study in November 1995 (while the Veteran was in service) indicates that he was evaluated for trance-like episodes (that he had had for many years) lasting a few seconds, and usually occurring when he was under stress. The impression was normal awake and asleep EEG. A September 1997 private treatment record notes a complaint that the Veteran loses consciousness when he laughs hard. The impression was post valsalva syncope. A March 4, 1998 emergency room record reflects that the Veteran was brought in (by his wife-who is a nurse) for evaluation when he was observed (by her) having tonic/clonic seizure activity after laughing while watching television. Possible seizure disorder was diagnosed. On neurological evaluation by Dr. R. 2 days later, it was noted that the Veteran reported that the March 4, 1998 episode was his first witnessed seizure. The impression was new onset seizure disorder; the Veteran was started on Depakote. On October 2003 VA mental disorders examination, it was noted that there was a significant medical question as to whether or not the Veteran had a true seizure disorder. The examiner noted that, although Dr. R. had diagnosed a seizure disorder in 1998, subsequent EEG studies were normal, and there was a question as to whether these were syncopal episodes rather than a seizure disorder. The examiner also noted that, although phenytoin (an anti-epileptic medication) was initially prescribed, it was discontinued by the time a sleep study was conducted in 2001 and resulted in a diagnosis of sleep apnea for which CPAP treatment proved very helpful. In September 2005 letter, Dr. R. [who first evaluated the Veteran in March 1998] indicated he had reviewed old notes from 1996, and in his opinion the Veteran had been having seizures for about 9 or 10 years. On October 2007 VA neurological examination, the Veteran's sleep apnea was found to be associated with his obesity. It was noted that the Veteran sustained a pre-service head injury bicycling. The examiner elicited the Veteran's self-reported history (which included seizures in service-but none observed) and conducted a neurological examination -with all findings normal. The impression was history of seizure disorder, currently in remission; it was noted that the Veteran had been on anti-depressant medication (which could precipitate seizures). The examiner opined that based on the record he could not provide an opinion establishing the onset of a seizure disorder in service. In February 2009, the Board remanded the matter to afford the Veteran a new VA neurological examination, finding that the record did not include a medical opinion that reflected review of all relevant evidence, particularly the 1998 EEG testing. On August 2009 VA neurological examination, the examiner noted that the Veteran began having seizure-like episodes in the military while taking Paxil (an antidepressant medication) and that the symptoms had remitted when he stopped taking it. The examiner noted the Veteran's history of episodes upon laughing or coughing, and experiencing an aura or sense of something impending when laughing, followed by regaining consciousness several minutes later. The August 2009 VA examiner's pertinent findings included that the Veteran did not have any of the usual risk factors of epilepsy, that his symptoms remitted when he stopped taking Paxil, and that the episodes were precipitated by laughing; the examiner noted that seizure disorders manifested by seizures precipitated by laughing were "quite rare" and assessed, based on the history and a physical examination, that the Veteran did not have a current active seizure disorder. Because the claims file was not available for review, no opinion was offered regarding whether the Veteran had epileptiform seizures in service. Because the August 2009 examiner was no longer available in November 2009, the claims file was forwarded to another provider for review and an addendum opinion. The November 2009 VA consulting osteopath indicated that the claims file, STRs, and CPRS records were reviewed in addition to the August 2009 examination; the examiner cited only the March 1998 EEG that was negative for seizure activity or epileptiform activity and the March 1998 MRI that was normal, before opining that it is less likely than not (less than 50/50 probability) that the Veteran has any current active seizure disorder. The November 2009 examiner noted that the symptoms in 1998 described by the Veteran were secondary to Paxil and stopped when the medication was withdrawn, and opined that it is less likely as not that those symptoms, which were no longer present, had anything to do with military service. In June 2010, the Board noted that the October 2007 VA examiner did not make any reference to the March 1998 tests or to findings made during the Veteran's service, and that Dr. R.'s statements/opinions also did not do so. The Board noted that the 1998 EEG testing was conducted based on the Veteran's self-report of experiencing trance-like episodes lasting only seconds but present over the previous several years, that it included photic shock administration and hyperstimulation, and that no responses were found to indicate a seizure disorder. The Board then noted that it was not sufficient for the November 2009 VA examiner merely to state that the claims file was reviewed and that the claimed disorder is not likely to be present. The Board found that the November 2009 opinion failed to fulfill the February 2009 remand instructions, in which the examiner was instructed to review the claims file, examine the Veteran, and then "set forth the complete rationale underlying any conclusions drawn or opinions expressed". In the June 2010 remand, the Board found that the November 2009 examiner provided no rationale, and that the lack of substantial fulfillment of previous remand instructions required a further remand. The Board remanded the matter to afford the Veteran a VA neurological examination by a neurologist, other than those who had offered opinions in October 2007 and November 2009, to address the nature and etiology of any current seizure disorder. The examiner was specifically asked to review several records included in the Veteran's medical history, particularly the November 1995 and March 1998 EEG testing; March 1998 brain MRI; VA examinations and opinions from October 2007, August 2009, and November 2009; the March 1998 assessment from private neurologist Dr. R.; and the Veteran's assertions about his experiences attributed to a seizure disorder, including an episode reportedly witnessed by his wife in 1998, and his assertions on previous VA examinations. The remand instructed that, in giving an opinion as to whether any seizure disorder found had developed in service or is otherwise causally related to service, the new VA examiner was to note the equivocal opinion by the October 2007 VA examiner as well as the affirmative opinion by private neurologist Dr. R. in September 2005. The new VA examiner's conclusions were to reflect review of the claims folder and the examiner was asked to discuss the pertinent evidence. On December 2010 VA examination, the claims file was not made available for review. Based on the Veteran's self-reported history and neurological examination (including cranial nerve examination, cerebellar examination, and motor and sensory examinations), the examiner's impression was that the Veteran's episodes constitute a vasovagal syncope. The examiner opined that the episodes precipitated by coughing constitute tussive syncope, and the episodes precipitated by laughter similarly trigger a Valsalva maneuver resulting in a drop in blood pressure followed by a brief syncopal episode, with a period of confusion stated to be one minute; the examiner opined that this is appropriate for a syncopal episode as is the prolonged dysphoria, and neither heavy laughter or heavy coughing would be a reasonable "trigger" for epileptic seizures. The examiner opined that the episodes are not related to "gelastic epilepsy" which does not occur in such context. The examiner noted that the Veteran had been free of all episodes for the previous year on no medications, which would be atypical for a seizure disorder; the history is unremarkable; and the examination was nonfocal. In a December 2010 addendum opinion, the same examiner stated that "the C-file has been made available for review" and that the Veteran's "active duty records" were reviewed as well as "subsequent evaluations in the emergency department and in neurologic evaluation". The examiner noted that MRI imaging and computed tomography of the brain were normal, and an EEG was normal, nonfocal, and non-epileptiform. The examiner noted that the Veteran had been prescribed Dilantin in the emergency room but no prescription was given upon discharge; the examiner also noted that the Veteran was later prescribed Depakote by "the neurologist" but no subsequent followup notes could be found. The examiner opined, "I do not see any history or findings in the record which would support a diagnosis of seizures. I believe that these events that occur in the context of robust laughter or coughing represents vasovagal syncope and that movements which occur during these episodes represent "convulsive" syncope." In March 2012, the Board remanded the matter once more because the December 2010 VA examiner made no reference, either in the examination report or the addendum report, to any of the other medical opinions of record as instructed on remand. In an April 2012 addendum opinion, the December 2010 VA examiner noted that the Veteran's claims file and STRs had been thoroughly reviewed. The examiner found no mention of any episodes of loss of consciousness for any recent time in the active duty medical records; the examiner noted the Veteran's admission to "considering such episodes for fear that he would be discharged" from service because of them. The examiner noted the CT and MRI scans of the brain as well as at least 2 EEGs, all of which were completely normal. The examiner noted that the first seizure witnessed occurred in March 1998, when the Veteran laughed while watching television and apparently lost consciousness. Generalized shaking was noted however the muscle enzyme CK was documented to have been normal on hospital evaluation. The Veteran was loaded with Dilantin and given the medication to take as an outpatient, but the note indicates that he elected not to take it. The examiner noted the private neurologist's 1998 statement specifically noting that it was the first episode of seizure activity witnessed, and the Veteran was treated with Depakote. The examiner noted the single 2005 follow-up note from the neurologist later indicating that the Veteran had discontinued the Depakote unilaterally due to its side effects, at which time Trileptal was initiated. The examiner noted the private neurologist's opinion that the Veteran had been having seizures for "9-10 years", as well as the report on 2007 examination that the Veteran had been free of any and all episodes for 1 to 1.5 years on no medications. The VA examiner opined that the Veteran does not have, and has never had, a seizure disorder, noting that the Veteran does not have risk factors consistent with the development of subsequent epilepsy; and he has no abnormalities on the neurologic examination, multiple CT and MRI evaluations of the brain, and multiple EEGs. The examiner noted that none of these exclude the diagnosis of epilepsy, but the preponderance of evidence shows the occurrence of loss of consciousness to include the first episode in the context of heavy laughter or heavy coughing, which is compatible with vasovagal syncope as heavy coughing/laughing is not a precipitant for epileptic activity. The VA examiner opined again that the Veteran has not had a seizure disorder (including as related to service), noting that there is no record in the STRs of any episodes of loss of, or alteration of, consciousness. The examiner again pointed out that the neurologist at the time of the Veteran's first presentation in 1998 specifically noted the episode to have been the first at that time. The examiner opined that, in view of subsequent history, the preponderance of evidence supports vasovagal syncope but not seizure. The examiner noted that the neurologist who initially diagnosed seizure based upon a single visit in 1998 was not seen again (as far as the notes reveal) until 2005, at which time he made a statement that, in his opinion, the Veteran had been having seizures for 8 to 10 years, which would include during service. The examiner noted that the neurologist failed to provide any evidence to even remotely justify such a statement. The examiner opined that the Veteran has had vasovagal syncope induced by heavy coughing or heavy laughter, as is not uncommon in this context. The VA examiner stated that shaking activity, the so-called "convulsive syncope", may be seen during vasovagal syncope but not actually represent seizure activity. The examiner conceded that although it is possible that the Veteran might have had seizure activity, it cannot be stated with a rate of 50 percent level of certainty. The examiner concluded by opining that it can be stated with a greater than 50 percent likelihood of certainty that the Veteran had vasovagal syncope based upon the history, examination, and testing provided. The Veteran was afforded another VA seizure disorders examination (by another provider) in December 2012. The examiner noted a diagnosis of possible complex partial seizure disorder with and without generalization, currently in remission. The examiner noted that, by history, the Veteran's "staring spells" began after he was started on Prozac for depression and anxiety. The examiner noted that, perhaps some such spells had begun before the antidepressant was prescribed, but they became more pronounced after he began taking the antidepressant. He was taken off of Prozac and prescribed Paxil instead, which caused increased frequency of the symptoms, which then remitted when the Veteran stopped taking antidepressants. The examiner found no mention of any seizure like episodes in the STRs, finding that a review of the records supports a diagnosis of CPS [complex partial seizures] with and without generalization, given the history of staring spells, or epileptic syncope. The examiner opined that, either way, the episodes (based on history) are strongly linked to the intake of antidepressants. The Veteran is currently off all antidepressants and has not had a spell in 4 to 5 years. Given the lack of evidence of the occurrence of these spells in service, and no mention of their association to antidepressant intake in the emergency room note dated 1998, the examiner opined, in essence, that the only way the spells could be related to the Veteran's military service was by resort to speculation. At the outset the Board notes that the record leaves unresolved whether or not the Veteran has a chronic seizure disorder. There are medical opinions pro and con. The opinions supporting such diagnosis point to past medical history, but also suggest that seizure-like activity may have been an acute response to medication prescribed for a psychiatric disability. The opinions against such diagnosis (including by the 2010 VA examiner -with April 2012 addendum) provide a thorough explanation why the diagnosis for the Veteran's symptoms more-likely is vasovagal syncope; all diagnostic tests or studies for s seizure disorder have been negative-but it has been explained that these do not exclude the diagnosis. Viewing the evidence in the light most favorable to the Veteran, the Board finds that strictly for purposes of this decision it may be conceded that a seizure disorder was manifested during the pendency of this claim. Consequently, what remains necessary to substantiate the Veteran's claim is evidence of a disease, injury or event in service and competent evidence of a nexus between such disease, injury or event and a diagnosis of a current seizure disorder [or if there is a diagnosis of an epilepsy or organic disease of the nervous system, manifestation to a compensable degree in the first postservice year-here, there is no diagnosis of epilepsy or organic disease of the nervous system manifested by seizures]. A seizure disorder is not shown to have been manifested during service; the Veteran's STRs are silent for complaints or findings related to such disability. While there is a record of a private evaluation for trance-like episodes in 1995, about a year prior to service separation, the EEG conducted was normal, and no diagnosis of a seizure disorder was made. Consequently, service connection for a seizure disorder on the basis that such disability became manifest in service and persisted is not warranted. And as there is no evidence that epilepsy or an organic disease of the nervous system manifested by seizures was manifested to a compensable degree in the first postservice year (a 1997 record notes only valsalva syncope, and the first observed (by the Veteran's spouse) seizure noted in the record was in March 1998), service connection for the claimed disability on a chronic disease presumptive basis (under 38 U.S.C.A. § 1112) likewise is not warranted. The analysis turns to whether a seizure disorder may somehow otherwise be related to the Veteran's service. In the absence of manifestation in service and postservice continuity, the etiology of an insidious process such as a seizure disorder is a complex medical question that requires medical knowledge/training. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The only medical evidence that supports the Veteran's claim is the opinion by Dr. R., who stated in September 2005 that based on "old notes" since 1996 reviewed a seizure disorder had been present for 9 or 10 years. Inasmuch as Dr. R. provides no further explanation/rationale, does not identify the "old notes" reviewed (and a review of the record found no records from 1996 potentially suggestive of a seizure disorder), and because evidence in the record (the report of a March 6, 1998 evaluation) suggests that the Veteran was first seen in 1998, the opinion placing the onset of a seizure disorder in service is lacking in probative value. The VA opinions in the record are against the Veteran's claim; cumulatively they are adequate for rating purposes (as they reflect familiarity with the record and include explanation of rationale that is consistent with factual data). A 2007 examiner opined that the record provided no basis for relating a seizure disorder to service (and that seizures could be brought on by the medication prescribed for the Veteran's psychiatric disability); the 2012 VA examiner's opinion was similar. While these opinions appear to support a secondary (to the Veteran's service-connected psychiatric disability) service connection theory of entitlement , they also indicate that seizures related to taking of the medication are an acute phenomenon (and not a chronic disability), as they disappeared when the Veteran stopped taking the prescribed medication. The 2010 VA examiner's opinion (reiterated in April 2012) indicates, with explanation citing to factual data, that the Veteran does not have, and has never had, a seizure disorder. It offers an alternate diagnosis(es) for the Veteran's reported symptoms (convulsive or vasovagal syncope), and is supported by a VA opinion in 2003. While the various VA opinions differ in their conclusions as to whether the Veteran has or has had a seizure disorder, and provide varying rationale, they are in agreement that he does not have a seizure disorder that is related to his service. Together these opinions provide probative medical evidence that is adequate to address the matter at hand. The Veteran is a layperson and lacks the training/expertise to offer a probative opinion in a medical matter that is beyond the capability of lay observation. The Board notes that his wife is a nurse, and acknowledges that she may be competent to identify the tonic/clonic type of activity that is characteristic of a seizure disorder. However, she has expressed that the first seizure-like event she witnessed was in March 1998; furthermore, she has provided no explanation how the symptoms she then observed would be related to the Veteran's service. In summary, while the competent evidence in this matter leaves some uncertainty as to whether or not the Veteran now has/during the pendency of this claim has had a current chronic seizure disorder; the preponderance of the evidence is against a finding that any such disorder may have been incurred or aggravated in service. Accordingly, the Board concludes that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. ORDER Service connection for a seizure disorder is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs