Citation Nr: 1802697 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-26 559 DATE THE ISSUES 1. Entitlement to service connection for pseudoseizures. 2. Entitlement to service connection for residuals of heat injury. ORDER Service connection for pseudoseizures is denied. Service connection for residuals of heat injury is denied. FINDINGS OF FACT 1. The Veteran's pseudoseizures did not manifest in service and are not related to service; epilepsy did not manifest within one year of service discharge. 2. The Veteran has no diagnosis of residuals of heat injury. CONCLUSIONS OF LAW 1. The criteria for service connection for pseudoseizures have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). 2. The criteria for service connection for residuals of heat injury have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty from October 1991 to February 1992 and from October 1992 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO), declining to reopen the Veteran's service connection claims for pseudoseizures and residuals of heat injury. Whereas, in June 2013 additional content of the Veteran's service treatment records were associated with the Veteran's claims file, the Board will address the merits of the Veteran's claims pursuant to 38 C.F.R. § 3.156(c) rather than on a new and material basis. See 38 U.S.C. § 501(a) (2012); 38 C.F.R. § 3.156(c) (2017). A Travel Board hearing was scheduled in October 2015 at which the Veteran did not appear. Given that the hearing notice was returned as undeliverable by the United States Postal Service, in June 2016, the Board remanded for new scheduling of a hearing. Proper notice was provided of a May 2017 Travel Board hearing, to which the Veteran did not appear nor explain his failure to appear. Accordingly, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2017). This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. Veterans Claims Assistance Act of 2000 As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As such, the Board will now review the merits of the Veteran's claims. Law and Analysis In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). For certain enumerated chronic diseases, such as epilepsies, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b) (2017); see 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b) (2017). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. The Board will summarize the evidence first then address the merits. The Veteran's service treatment records contain his July 1991 enlistment examination, showing that he reported not taking any medication and having frequent colds. His service treatment records contain a May 1992 emergency medical services report, showing that the Veteran complained of possible dehydration. The Veteran was treated with intravenous fluids and transported. A Statement of Medical Examination and Duty Status shows that the Veteran reported that after working outside in the sun, he became dizzy. It was noted that emergency care and treatment was provided for mild dehydration (improved). The details of the accident were described as individual stayed in the sun too long causing mild dehydration. A number of days later, in May 1992, service treatment records show that the Veteran was carried into the treatment area due to a coral cut on his foot, sweating profusely. He was treated with intravenous fluid as having a heat injury and released with instructions to follow-up the next day. The records show that the Veteran returned the next day, his foot was evaluated, and it was noted that he was status post dehydration and ordered light duty for the next seventy-two hours. As contained in the Veteran's service treatment records, medical records from Fort Hood show that, in July 1993, the Veteran was instructed to stay out of the heat the rest of the next week of training. The Veteran's reported symptoms were weakness, cramps, and it was assessed that he had possible heat exhaustion. The Veteran's recorded temperature was 101.0 degrees. The Veteran was treated with intravenous fluid. A July 1993 abbreviated medical record of the same incident shows that the Veteran was in the field when he became weak, lethargic, and complaining of cramps. It was noted that he had had an episode a month earlier. The impression was heat illness, possible dehydration, and the Veteran was discharged back to his unit, being kept in quarters out of the heat the rest of the week due to two episodes of heat injury within the past month. The Veteran's military personnel records contain January 1994 orders releasing the Veteran from active duty "not by reason of physical disability." The records show that letters of indebtedness were the basis of a bar to reenlistment. In January 1994, on the Statement of Option, the Veteran indicated that he did not want a separation medical examination. In the Veteran's June 1994 statement in support of claim, he stated that he was in Panama for two weeks in May 1992 when he was in the reserves, during which he had two episodes of being weak, dizzy, and it being hard to breathe. A doctor could not find anything wrong. The Veteran stated that his next episode was while on active duty in June/July 1993. He stated he blacked out while in the field, and he was told by his first sergeant that he had stopped breathing. The Veteran stated that when he came to, he was choked up, throwing up, weak, and dizzy. He reported that he was hospitalized for three days, after discharge it happened again, and he was hospitalized for another three days. Nothing wrong was found, and the Veteran reported being advised that this might have been the heat. The Veteran reported that in August 1993, he entered his room from the outside and felt dizzy, was short of breath, weak, and had chest pain. A doctor advised him that he had bruised muscles around his heart area. The Veteran stated that after discharge, in May 1994, he got hot on his new job and passed out, and he was told that he had stopped breathing. The Veteran provided a list of dates and times along with symptoms he experienced between May and June 1994. The Veteran stated that he was told by a doctor that it was a type of seizure. Post-service medical records include those from May 1994, when the Veteran was hospitalized for observation in Temple, Texas. A neurology consult showed that the Veteran complained of diffuse weakness and multiple episodes of syncope. The Veteran reported that all episodes-Panama in 1992, summer 1993, and current event-were associated with being hot. The impression was that the episodes were puzzling, and a diagnostic plan was entered. The Veteran was diagnosed as having a seizure disorder, and he was started on Dilantin. A discharge summary shows a diagnosis for seizure disorder along with prescriptions for Dilantin and Felbamate. The Veteran's June 1994 application for Social Security Administration disability benefits, which was based upon seizures and inability to be in heat, has been associated with his claims file. August 1994 medical records include a discharge summery after an admission for seizures versus pseudoseizures and iatrogenic Dilantin toxicity. Medical records from September 1994 show treatment as follow-up for seizure. Medical records show that the Veteran was treated in October 1994. All of these treatments were for suspected seizures with treatment with Dilantin and Gabapentin. The Veteran presented a September 1994 buddy statement from his fiancée, stating that she witnessed him have seizures on numerous occasions. The Veteran also presented September 1994 buddy statements from S.K., J.L.R., and F.K.-S.K.'s and F.K.'s being identical-stating that they witnessed the Veteran having seizures. The Veteran presented medical records showing trips to the emergency room and care for seizures in September, October and November 1994, showing he was taking Dilantin. Due to questions about the nature of his symptoms in light of appropriate levels of Dilantin, the records show the Veteran was referred for psychiatric evaluation. The Veteran presented medical records from January to March 1995, showing that he sought treatment for seizure activity after not having had a seizure for two months. The triage note shows that he was taking Dilantin and Gabapentin. In December 1995, the Veteran was afforded a VA general medical examination. The report contained a synopsis of the Veteran's episodes. It was noted that the Veteran had been diagnosed as having seizure activity but that on consultation, several doctors had diagnosed pseudoseizures. It was noted that psychiatrists had considered him to have pseudoseizures. The examiner also noted that a record review revealed that the psychiatrists thought the Veteran's condition to be factitious and that he was somewhat effeminate in his mental disposition. The examiner diagnosed the Veteran as having probable pseudoseizures to be confirmed by psychiatric, neurologist, and record review. Possible hysterical over-breathing syndrome was also diagnosed based upon the record evidence of the variance in the Veteran's carbon dioxide levels after episodes. The Veteran presented reports from November and December 1995 showing neurological and medical evaluation for the Veteran's symptoms. During the November 1995 neurology consultation with Dr. R.P.L., the Veteran dated the onset of his symptoms to 1992 when he was serving in Panama, which he attributed to paint fumes. The Veteran reported an episode in Hattiesburg when he was diagnosed as having possible seizures. The neurologist reported that hyperventilation for a minute reproduced one of the Veteran's spells. The impression was recorded as spells, probable pseudoseizures, and history of sleep disturbance, rule out narcolepsy. The neurologist stated: "The preceding history of recurrent episodes of shortness of breath and lightheadedness without loss of consciousness while on active duty suggests possible underlying anxiety and hyperventilation. I was able to reproduce in part his spell by hyperventilation in the office; again suggesting a nonorganic etiology." The November 1995 report by a sleep specialist, Dr. F.P.G., did not reveal any information other than an impression of spells of unknown etiology after the Veteran underwent a sleep study. It was reported that the Veteran's MRI was normal. The EEG report showed an EEG within normal limits both awake and asleep. It was noted that hyperventilation produced no significant change and that a spell was recorded and there were no electrical accompaniments. In a November 1995 follow-up report, the neurologist concluded on a diagnosis of pseudoseizures, and advised the Veteran that he did not need to take Dilantin. A plan for weaning the drug was implemented, and the Veteran was referred for follow up with psychology. In February 1996, the Veteran was afforded a VA mental disorders examination. The Veteran reported that he had been having significant psychosocial stressors, especially related to his relationship with his wife. The Veteran reported that the triggers to his episodes were usually exhaustion, stress, lack of sleep, and heat. He reported that the episodes started in Panama when it was hot. It was noted that he did not have a major psychosocial stressor at that time. The Veteran described his relationship with his wife as abusive by her. It was noted that several diagnoses had been entertained in the psychiatric arena, including factitious disorder, and pseudoseizure as part of conversion disorder. The Veteran reported losing jobs post-service due to his episodes. The examiner diagnosed the Veteran has having marital problems on Axis I and seizure disorder on Axis III. The examiner noted that the Veteran's medical records offered a puzzling and very interesting presentation of his episodes with organic work-ups not being conclusive. It was noted that his seizure activity had been witnessed on the medical ward in June/July 1995, which substantiated the diagnosis of seizure disorder. It was noted as interesting that the Veteran's episodes occurred on days when the Veteran identified being significantly exhausted; that most of the seizures were reported by the Veteran's fiancée/wife; that since November/December 1995, the Veteran had been off medication and had not had any episodes. The examiner recommended that the Veteran be referred and followed for counseling to deal with difficulties in coping skills and marital problems. Attached to the February 1996 VA examination report was a February 1996 examination report from Dr. G.G., at a neurology and headache center, evaluating the Veteran for seizures versus pseudoseizures. The Veteran reported having spells since May 1994. The impression reported was probable pseudoseizures, noting that the activity did not increase after cessation of medication, rather stress precipitated the events. In a May 2009 statement, W.B. stated that he witnessed the Veteran have an unknown medical condition that resulted in the Veteran becoming non-coherent. In a July 2009 authorization for release of information, the Veteran reported that he remembered having an episode while in training in 1993, waking up in a helicopter and waking up again in a hospital. The Veteran presented treatment records from Correctional Managed Care from January 2009 to September 2009, showing that he was treated with continued care for suspected seizures. The Veteran presented a medication pass for valproic acid for the period March to May 2009. In January 2010, the Veteran presented a December 2009 letter to his representative in which he related that his doctor changed his seizure medication to Divalproex, which was working and if he missed dosages, seizure symptoms returned. In January 2010, the Veteran wrote the RO with the same information. The Veteran presented a medication pass for Divalproex for December 2009 to January 2010. On his June 2010 VA Form 9, substantive appeal, the Veteran stated that he had an accident while on duty in the military. He stated that he did not know what made him become so dizzy and exhausted. He stated that it was a very hot day and since then he would have bad seizures from time to time. He reported that he did not have anything like it before the accident. PSEUDOSEIZURES The Veteran essentially contends that because he suffers from the same symptoms as he did while in service and because he was at a VA medical center when he was treated and prescribed medication for seizures in 1994, he should be service connected for pseudoseizures. The Board finds that competent, credible, and probative evidence establishes that the Veteran's pseudoseizures are not etiologically or presumptively related to his active service. The Board notes that the Veteran, while entirely competent to report his symptoms and events as he recalls them, is not competent to proffer an opinion as to diagnoses or the etiologies of his disabilities. Likewise for the other lay statements in this case. Such opinions require specific medical training and are beyond the competency of a lay person. In the absence of evidence indicating that the Veteran or his lay witnesses have the medical training to render medical opinions, the Board must find that his contentions in these regards to be of no probative value. See 38 C.F.R. § 3.159(a)(1)-(2) (2017) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "lay persons are not competent to opine on medical etiology or render medical opinions."). Accordingly, the lay evidence offered by the Veteran in support of his claims is not competent evidence to support any specific diagnosis or etiology of a disability. With respect to the first Holton element, current disability, the evidence of record shows that the Veteran has been treated for seizures as well as has been diagnosed as having pseudoseizures. Accordingly, the first Holton element has been met. With respect to the second Holton element, in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records are silent for any symptoms, complaints, diagnosis, or treatment for a seizure-like condition. They show that the Veteran was seen several times in May 1992 for mild dehydration that was resolved through the administration of intravenous fluids. They show that the basis for the first instance of mild dehydration was staying in the sun too long and the second instance, several days later, related to when the Veteran cut his foot on some coral. The Veteran was ordered to light duty for seventy-two hours. The Veteran's service treatment records show that he was seen in July 1993 for dehydration when the Veteran complained of being weak, lethargic, and having cramps. In light of a previous episode the month before of heat illness, he was kept to his quarters for the rest of the week. The Veteran's military personnel records show that when he was discharged in January 1994, physical disability was not a basis for the separation. The Board finds that there is no competent evidence that the Veteran experienced any seizure-like symptoms while in service that were not medically attributed to heat illness and successfully treated with rehydration and orders restricting the Veteran's duties, removing him from the heat, until recovered. Accordingly, the second Holton element is not met, and the claim fails. See 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). With respect to the third Holton element, medical nexus, in the absence of evidence of an in-service incurrence or aggravation of a disease or injury, a medical nexus opinion would seem to be an impossibility. The medical evidence of record draws diagnostic distinctions between the Veteran's in-service and post-service symptoms, which the Veteran claims are the same. The Board acknowledges the Veteran's representative's December 2015 appellant's brief argument that the Veteran's heat injuries "also presented as pseudo-seizures." The Board finds that there is no medical evidence to support this argument. Although the evidence shows that the Veteran experienced dizziness, lethargy, and cramps both in service and post service, the Board is not permitted to read into this that the Veteran experienced the same medical condition each time. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (prohibiting the Board from exercising its own independent judgment to resolve medical questions). The record shows that the medical practitioners treating him in each instance attributed the symptoms to different conditions and treated him very differently based upon medical evaluation and diagnosis at the time. While in service, the Veteran was successfully treated for dehydration. Post-service, dehydration was not a concern and the focus of treatment was for a seizure-type disorder. The Board finds the February 1996 VA examination report the most probative as to an overview of the Veteran's medical history. The examiner attributed the Veteran's disability to marital problems, and noted that the Veteran did not have a major psychosocial stressor when he was in service. During that examination, the Veteran reported that his relationship with his wife was stressful and that she was abusive toward him. The examiner noted that most of the Veteran's episodes were reported by his fiancée/wife and that extensive medical testing did not reveal an organic basis for the Veteran's disability. This opinion was supported by Dr. G.G.'s report of an impression that stress precipitated the Veteran's episodes. The Board finds the following evidence of record supports the examiner's emphasis on psychosocial stressors: Medical records for a January 1995 hospital admission for treatment of a seizure reveal that, with doctor's permission, the Veteran left the emergency room for the purpose of going to the courthouse with his girlfriend to get a marriage license with the understanding that he was to return back to the hospital once his business was completed. The record shows that the Veteran returned a little more than an hour later. Medical records for December 1995 show that, on the day the Veteran's child was born, he was seen in the emergency room for acute gastroenteritis, which was successfully treated. The Board notes that Dr. R.P.L. stated in his November 1995 report that the Veteran's in-service episodes of shortness of breath and lightheadedness without loss of consciousness were suggestive of possible underlying anxiety and hyperventilation. Considering that the Veteran's service treatment records are silent for any symptoms, complaints, diagnosis, and treatment suggestive of any emotional disorder and that his symptoms of shortness of breath and lightheadedness were accompanied with symptoms of heat injury and dehydration, such as a recorded temperature of 101.0 degrees in July 1993 and successfully treated with rehydration, the Board finds this statement to be mere speculation, not medical opinion. Despite a lack of a positive medical opinion on nexus, the third Holton element can be presumptively satisfied for certain enumerated disabilities, such as epilepsies, when the condition is diagnosed and manifested to a compensable degree within one year after separation from qualifying service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)). Here, the Veteran separated from active service in January 1994 and the evidence of record shows that the Veteran was treated for a suspected seizure in May 1994. While this treatment was within the one-year presumptive period, there is no evidence of record, within that year or thereafter, that the Veteran has been diagnosed with epilepsy. Accordingly, the presumption does not apply, the third Holton element is not met, and the claim fails. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). RESIDUALS OF HEAT INJURY The Veteran essentially contends that he has a disability as the result of residuals of in-service heat injury that should be service connected. With regards to the first Holton element, current disability, the medical records detailing the considerable amount of contact the Veteran has had with the medical community do not contain any diagnosis of any condition that is a residual of his in-service heat injury. Rather, the diagnoses of record include, seizures, pseudoseizures as part of conversion disorder, and factitious disorder, as well as marital problems related to an abusive spouse. The Board concludes, therefore, that the first Holton element is not met, and the claim fails. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "[i]n the absence of proof of a present disability there can be no valid claim."); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) (interpreting McClain v. Nicholson, 21 Vet. App. 319 (2007)). The Board finds that the objective evidence of record is outweighed by the Veteran's assertions as to having any current residuals of a heat injury. (CONTINUED ON NEXT PAGE) Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs