Citation Nr: 1804158 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-28 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a seizure disability, to include as an undiagnosed illness. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty for training from May 2002 to September 2002 and on active military duty from March 2003 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board last considered this issue in September 2016, when it remanded for additional development. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held at the RO in June 2012. A transcript of that hearing is of record. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's current seizure disability, which attributable a known diagnosis, was incurred in service or is otherwise related to service. CONCLUSION OF LAW The criteria to establish service connection for a seizure disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2016); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claim in January 2011, prior to the initial adjudication of his claim. In addition, all identified, pertinent treatment records have been obtained and considered. These include VA and private treatment records, as well as records obtained from the Social Security Administration (SSA). The Veteran underwent VA examinations in November 2012 and March 2015 to determine the nature and etiology of his claimed disability. Pursuant to the Board's September 2016 remand, in October 2016, VA obtained an addendum VA opinion as to whether the Veteran's diagnosed disability is etiologically related to his military service. There is no argument or indication that this opinion is inadequate. In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the Veteran's claim. Any errors committed were not harmful to the essential fairness of the proceedings, and the Veteran will not be prejudiced by a decision. II. Analysis Service connection will be granted for 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). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran is seeking service connection for a seizure disability, to include as an undiagnosed illness. He contends that the claimed disability is related to exposure to environmental hazards, such as smoke and extreme heat, during service as a firefighter in the Gulf War. See June 2012 Board hearing transcript at 15. The Veteran served in Iraq and Kuwait from May 2003 to April 2004. See DD-214. An April 2004 post-deployment health assessment shows that he reported occasional exposure to insect repellent, flea or tick collars, smoke from burning trash or feces, vehicle exhaust fumes, JP8 or other fuels, and radar/microwaves. A November 2012 VA examination shows a diagnosis of focal epilepsy seizures, and a March 2015 VA examination shows a diagnosis of tonic-clonic seizures or grand mal (generalized convulsive) seizures. Thus, a current disability is shown. In November 2011, the Veteran raised the issue of service connection for an undiagnosed Gulf War illness, based on his seizures. Although the RO denied entitlement to such an illness in a November 2012 rating decision, the Board, in its May 2014 remand, recharacterized the issue on appeal to accurately reflect the expanded scope of the Veteran's claim. The evidence, however, shows that the Veteran's seizures are attributable to a known diagnosis. In this regard, the March 2015 VA examiner indicated that the Veteran's seizure disorder has a clear and specific etiology and is naturally-occurring disease process documented in medical literature. Further, a November 2012 VA Gulf War examination shows a single diagnosis of seizure disorder (epilepsy), with a negative finding for either an undiagnosed illness, a diagnosed medically unexplained chronic multisymptom illness, or a diagnosed illness with no clear etiology. In view of the above, the Board finds that the issue of entitlement to compensation under 38 C.F.R. § 3.317 is not for consideration in the present case. Service treatment records are silent regarding seizures in service. Rather, an April 2004 post-deployment health assessment shows that the Veteran described his current health as excellent and in it he denied any concerns about possible hazardous exposure during service. Further, the Veteran has indicated that his disability began in 2010, years after active duty. See 12/30/2011, VA 21-526 Veterans Application for Compensation or Pension. This is consistent with the medical evidence of record. See, e.g., September 2010 private neurology consultation. Thus, the evidence is against a finding that the claimed disability was incurred in service. As to the etiology of the Veteran's diagnosed disability, the November 2012 VA examiner opined that the Veteran's diagnosed focal epilepsy was less likely than not related to a specific exposure event experience during service in Southwest Asia. Citing medical literature, the examiner explained that focal epilepsy is due to a presumed focal structural cause that cannot be historically identified or seen with current imaging techniques and, if idiopathic, is related to childhood. Similarly, the March 2015 examiner indicated that seizure disorder is a clear and specific etiology and a naturally occurring disease process documented in medical literature that occurs in the general population and would not have been caused by any exposure to a Gulf War contaminant. Ultimately, the examiner opined that the Veteran's seizure disability was idiopathic and less likely as not related to service. Subsequent to the March 2015 VA opinion, the Veteran, through his representative, pointed to medical literature that purportedly contradicts the VA examiner's rationale that seizures have solely natural bases. In this regard, the Veteran submitted literature from Johns Hopkins Medicine and the Mayo Clinic, stating that seizures can be caused by an event or underlying health problem, such as a traumatic head injury, progressive brain disease, stroke, and infections. In light of this new evidence, the Board remanded for an addendum medical opinion. Pursuant to the Board's remand, a different VA examiner in October 2016 also concluded that the Veteran's claimed disability is less likely than not related to service. The examiner addressed the medical literature submitted by the Veteran. As noted by the examiner, this literature indicates that seizures can be caused by traumatic brain injury, progressive brain disease, stroke, infection, birth trauma, alcohol, drugs, brain tumor, hemimegalencephaly, cortical dysplasia, mesial temporal sclerosis, drug withdrawal, medications, infections of encephalitis, meningitis, or injury due to lack of oxygen. The examiner explained that an injury from these causes would show substantial brain tissue changes that would be easily seen on an MRI. The examiner further noted that a 2010 MRI (performed for evaluation of the Veteran's newly-diagnosed seizures) was normal. Regarding the Veteran's assertion that his seizures are related to exposure to environmental hazards in service, the examiner indicated that exposure to oil well smoke or other types of smoke, reported as occurring on an occasional basis during a period of deployment of less than six months, would not cause brain tissue damage, adding that such exposure would have to occur in an overwhelming fashion to cause acute hypoxia or blunt force trauma to the brain resulting in immediate and prolonged hospitalization with easily apparent changes on a subsequent MRI. The examiner noted that there was no evidence that any of these alternate causes were applicable to the Veteran, as there was no evidence that any of them had impacted or affected the Veteran. Ultimately, the examiner concluded that the cause of the Veteran's seizures was idiopathic occurring during the period of diagnosis in 2010, and less likely than not related to service, including any exposure or syndrome associated with the Gulf War. Based on the above, the Board finds that the weight of the evidence is against a finding that the Veteran's seizures, which first manifested many years after active duty, is etiologically related to his military service, including hazardous environmental exposure during service in Southwest Asia. Three VA examiner have considered this questions and all have concluded that such a nexus is less likely than not. Significantly, the most recent VA opinion shows adequate consideration of the relevant evidence, to include medical literature submitted by the Veteran and his reports of environmental exposure in service. The VA examiner acknowledged that seizures can be caused by multiple factors, as discussed in the submitted medical literature, but ultimately concluded that none of these causes applied to the Veteran. This opinion is adequate and highly probative, and there is no competent evidence to the contrary. The Board acknowledges the Veteran's assertions that his seizures disability is related to service. Unfortunately, he is not competent to establish such a nexus as he lacks the appropriate medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, the weight of the evidence is against a finding that the Veteran's current disability was incurred in service or is otherwise related to service. The criteria for service connection have not been met. The Veteran's claim must be denied. ORDER Service connection for a seizure disability is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs