Citation Nr: 1332407 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-26 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to service connection for epilepsy. 2. Entitlement to service connection for depression, to include as secondary to epilepsy. 3. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to epilepsy. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the issues on appeal. In September 2010, the Veteran testified before the Board at a hearing held at the RO. In March 2011, the Board remanded the claims for development and in May 2013, the Board requested and then obtained a Veterans Health Administration (VHA) medical opinion on the matter. In May 2013, the Veteran informed the Board and his attorney that he no longer wished for her to represent him in this appeal. Thus, the Veteran is now unrepresented. In light of the favorable disposition of the claim, no further action is required in this regard. FINDINGS OF FACT 1. The Veteran's current seizure disorder, claimed as epilepsy, had its onset in service. 2. Resolving the benefit of the doubt in favor of the Veteran, his depression was at least partially caused or aggravated by his seizure disorder. 3. Resolving the benefit of the doubt in favor of the Veteran, his IBS was caused or aggravated by his seizure disorder. CONCLUSIONS OF LAW 1. The Veteran's seizure disorder was the result of a disease or injury incurred in or aggravated during his active military service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2012). 2. The Veteran's depression was caused or aggravated by his seizure disorder. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 3. The Veteran's IBS was caused or aggravated by his seizure disorder. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS First, as the Board's decision to grant service connection for the claims on appeal herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran seeks service connection for epilepsy that he contends is due to an in-service head injury. The Veteran contends that while in service, in either 1984 or 1985, he was found passed out in the hallway of his dormitory during lunch and was hospitalized for one week. He cannot recall whether there was a diagnosis at that time. The Veteran also contends that in 1990 or 1991, he was working on a jet on the flight line and was removing cowling from the aircraft when a strong gust of wind blew him and the cowling about 100 yards down the flight line. He landed on concrete and the cowling landed on top of him. He thinks he lost consciousness briefly and recalled being picked up by other crewman. Because he was coherent, they told him to take the rest of the day off. He had had a headache for the rest of the day, but everything appeared normal. He reported for duty the following day. The Veteran also contends that his epilepsy could also be due to solvents used while working on engines, to include Avgas and MEK (methyl ethyl keytone), and due to being in close proximity to the noise of the jet engines. The Veteran contends that his depression was caused or aggravated by his epilepsy because the stress of his epileptic seizures contributed to his depression. He contends that his IBS was also caused or aggravated by his epilepsy because due to taking medications that control his epilepsy, he has suffered from IBS. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) . Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted with evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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 majority of the Veteran's service treatment records were lost and are therefore unavailable. The only available service treatment records demonstrate that on entrance examination in December 1981, he denied having had any epilepsy or fits, and that he was treated for conjunctivitis in June 1992. Post-service records reflect that the Veteran was evaluated for seizures in March 1994. It was noted at that time that his wife had witnessed a tonic clonic seizure. His wife had awoken to find that he was rigid and unresponsive followed by an episode of jerking, lasting about seven minutes in total, followed by a long period of drowsiness. He had not had that experience previously. He had no past history of birth trauma or febrile convulsions, but did report a mild head injury to the right side ten years previously (while in service) with a possible loss of consciousness. He did not have headaches and denied a family history of epilepsy. Another note stated that there was a possible family history of epilepsy. An EEG and CT scan were normal. An August 2001 diagnosis states "epilepsy - probably post traumatic following head injury 1984, epilepsy developed in 1992." He reported no daytime fits since 1998, but had several nocturnal seizures. He was taking Penytoin. A July 2001 MRI suggested a small area of cortical loss on the left temporal lobe. The consultant neurologist commented that the lesion was probably related to an old head injury. In January 2012, a VA examiner reviewed the claims file and noted that the etiology of the Veteran's epilepsy was unclear. The previous finding of gliosis of the temporal lobe could possibly be the source, but the lack of enhancement made that a lesser possibility. On examination, the Veteran attributed his seizures to stress, and the records also correlated with that theory, or with a non-epileptic origin. The assessment was that the Veteran suffered from both partial complex seizures and non-epileptic seizures. His EEG had been normal which made it difficult to classify epileptic seizures. The examiner stated that seizures are not caused by exposure to noise or inhalation of fumes, but did not provide any rationale for this statement. The examiner also concluded that a remote history of loss of consciousness in 1985 and a reported head injury in 1990 had not caused the Veteran's current seizures. In August 2013, the Board obtained a VHA opinion for clarification purposes. The examiner reviewed the claims file and found that it was at least as likely as not that the Veteran's seizures were caused or aggravated by his service, including by the head trauma described to have occurred in service. In so finding, the examiner explained that per the notes that began in the early to mid-1990s, the Veteran was described to suffer from activities that were consistent with a focal dyscognitive seizure, or complex partial seizure, make it in most likely that he had seizures of focal onset of limbic, or temporal, origin, at that time. Although the 1994 seizure was noted to be the first seizure in the records, it was possible that he experienced a seizure before that time while in service, such as when he described passing out in the hallway or while working on the flight line. Although not definitive, a seizure, with impaired consciousness, would be one explanation for those events. Moreover, per the 2001 MRI report showing a small area of cortical loss/gliosis in the lateral temporal lobe with no area of enhancement, there was evidence consistent with previous head trauma. The gliosis, or scar, that developed could have then become epileptogenic leading to the development of recurrent seizures, or epilepsy. Finally, the examiner found that it was less likely than not that the Veteran's exposure to solvents and jet fumes were the cause of his current seizures. With regard to the Veteran's depression, the evidence documents a January 2001 private record showing that the Veteran had been on seizure medication since 1996 but continued to have fits at night. At around that stage, he became separated from his wife and was suffering from stress and tension ever since then. Private treatment records dated in July 2005 show that he had had a bicycle accident with no recollection of the event. He had not had previous day time fits. He was feeling low and felt that these fits would affect his livelihood. In August 2005 record reflects that the Veteran had a low mood because he had broken up with his long term partner, he was unable to drive due to his epilepsy, and he was looking for work. In September 2005, he had a low mood as well as further epileptic fits. In November 2006, he was diagnosed with anxiety with depression. He had been kicked out of his unit by his landlord and found that his fits were triggered by stress. A February 2007 record notes that the Veteran had been suffering from ongoing depression. With regard to his IBS, the evidence of record shows that in November 2005, he was having diarrhea that had increased. In June 2006, it was noted that he had had diarrhea on and off for about 15 years. He felt that the symptoms were worse since starting seizure medication. A February 2007 private records reflects that the Veteran had ongoing diarrhea. In this case, with regard to the Veteran's seizures, the Board places great probative weight on the August 2013 VA examiner's opinion that the Veteran's current seizures began in service and/or were caused or aggravated by head trauma in service. The opinion is competent and credible medical evidence that is accompanied by clear and well-explained rationale. The opinion took into account the Veteran's lay testimony as well as the documented, objective medical evidence in finding in favor of the Veteran. To that extent, the Board also finds that the Veteran is credible in his statements relating the two events in service when he lost consciousness as those statements comport with medical records dated many years prior to the filing of the claim, and the statements have remained consistent throughout the appeal period. Despite the loss of the Veteran's service treatment records, the Board finds that the Veteran' statements are sufficient to corroborate the in-service events, especially in light of the VHA examiner's opinion that the described events were demonstrative of epileptic seizures. In that regard, the Board finds that the January 2012 VA opinion does not dispute the findings made by the August 2013 VHA examiner, as it does not address whether the current symptoms had their onset in service, but rather disputes the type or kind of seizure only. Thus, that opinion is not probative in weighing against the claim. Accordingly, in light of the competent, credible, and probative medical and lay evidence of record, the Board finds that service connection for the Veteran's epilepsy is warranted. In light of the grant of service connection for epilepsy, the Board also finds that the Veteran's claims for service connection for depression and IBS should also be granted because the medical evidence, along with the Veteran's credible lay statements, clearly reflect that the Veteran's "fits" caused him to experience "low moods" and depression which has been ongoing during the appeal period as confirmed by his treating physician, and it has also been noted that his seizure medication has at least aggravated his diarrhea/IBS. In that regard, the Veteran is competent to state that he had felt depressed due to his seizures, especially the daytime fits that interfere with his ability to drive, and he is also competent to state that his diarrhea has worsened on seizure medication, as both conditions are capable of lay observation. Significantly in this case, the causal link between both conditions and his epilepsy has been repeatedly documented in his treatment records. There is no indication that the reported symptoms in the records are not credible. Thus, the Board finds that service connection for depression and IBS as secondary to the service-connected epilepsy is warranted. ORDER Service connection for epilepsy is granted. Service connection for depression, as secondary to epilepsy, is granted. Service connection for IBS, as secondary to epilepsy, is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs