Citation Nr: 18144485 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 10-13 535 DATE: October 25, 2018 ORDER Service connection for a disability manifested by seizures, to include an undiagnosed or a medically unexplained chronic multi-symptom illness due to exposure to environmental hazards during service in the Southwest Asia theater, is denied. FINDINGS OF FACT 1. The Veteran’s active duty service included a period of service in the Southwest Asia theater. 2. The Veteran has been diagnosed with non-epileptic seizures, which are manifestations of his diagnosis of conversion disorder and are unrelated to exposure to toxins, chemicals or environmental hazards during his service in the Southwest Asia theater. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability manifested by seizures, to include an undiagnosed or a medically unexplained chronic multi-symptom illness due to exposure to environmental hazards during service in the Southwest Asia theater, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1117 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1990 to January 1996, which included service in the Southwest Asia theater. In May 2017, the Board issued a decision denying the Veteran’s service connection claim for a seizure disorder, to include as due to an undiagnosed illness. He appealed that decision to the United States Court of Appeals for Veterans’ Claims (Court). By a March 2018 Order, the Court, pursuant to a Joint Motion to Remand (JMR), vacated the Board’s May 2017 decision and remanded the matter for further action consistent with the JMR. As another matter, in October 2011, the Veteran testified before a Veterans Law Judge (VLJ) at a travel Board hearing; a transcript of which has been associated with the claims file. Thereafter, in a September 2018 letter, he was notified the VLJ who conducted the hearing was no longer employed by the Board and given an opportunity to testify before another VLJ. However, he declined another hearing. September 2018 Hearing Options Form. As such, the Board finds he has been provided a meaningful opportunity to effectively participate in the processing of this claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). 1. The issue of entitlement to service connection for seizure disorder, to include an undiagnosed or a medically unexplained chronic multi-symptom illness due to exposure to environmental hazards during service in the Southwest Asia theater. The Veteran contends that he has a disability manifested by seizures, which stems from his exposure to environmental hazards while serving in the Southwest Asia theater. See February 2009 Veteran’s Application for Compensation and/or Pension; June 2010 Veteran’s Application for Compensation and/or Pension; see generally October 2011 Board Hearing Transcript. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established if the veteran served in the Southwest Asia theater and exhibits objective indications of a qualifying chronic disability that manifested either during active duty service or to a minimum compensable degree or more not later than December 31, 2021 and by history, physical examination and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). There are three types chronic disabilities eligible for service connection in this regard; (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) an infectious disease warranting presumptive service connection. 38 C.F.R. § 3.317(a)(2)(A), (B), (c). In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his seizures. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013). However, he is not competent to render a medical diagnosis or an opinion on such a complex matter as the etiology thereof. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999). Therefore, in this regard, the Board relies on the medical evidence of record. Here, the evidence of record clearly establishes the Veteran has been diagnosed with multiple disabilities manifested by seizures. See October 1998 M.H. Emergency Department Report (diagnosed with the Veteran with seizure disorder); November 2003 VA Neuro Follow Up Clinic Inpatient Note (diagnosed the Veteran with epilepsy); June 2011 VA Neurology Outpatient Note (diagnosed the Veteran with likely non-epileptic/psychogenic seizures). Thus, the current disability element has been satisfied. See Shedden, supra. Although the Veteran contends that his seizures manifested first during active duty service, a review of his service treatment records (STRs) is negative for any seizures or seizure related issues. See July 2009 Statement in Support of Claim; cf. generally STRs. In fact, during an October 2011 travel Board hearing he testified that his first seizure occurred post-separation. October 2011 Board Hearing Transcript at 3. Significantly, he was unsure if he had any signs or symptoms of a seizure in service. Id. at 4. Nevertheless, a review of the Veteran’s service personnel records confirms that he served in the Southwest Asia theater while on active duty service. See DD Form 214. As such, the in service incurrence element has been met. See Shedden, supra. Therefore, the crux of the claim is whether there is a nexus between his seizure disorder and his exposure to environmental hazards during his service in the Southwest Asia theater. Id. In this regard, the Board must first address the nature of his seizure disorder. The Veteran was first diagnosed with seizure disorder in October 1998. An October 1998 M.H. Emergency Department Report documented an impression of seizure disorder and indicated it was his first seizure. However, the treatment provider at that time did not specify whether the seizure was epileptic or non-epileptic in nature. A December 1999 Persian Gulf Registry Evaluation confirmed the Veteran’s diagnosis of a seizure disorder. While the VA examiner did not distinguish between whether the seizure disorder was epileptic or non-epileptic in nature, the Board notes the VA examiner noted his electroencephalograms (EEGs) and magnetic resonance images (MRIs) were normal by history. Of note, the VA examiner noted at the time of the examination he was in a “financial quandary.” Thereafter, a VA Neuro Initial Clinic Inpatient Note in August 2003 noted an impression of presumed epilepsy although an EEG and MRI were both normal. August 2003 VA Neuro Initial Clinic Inpatient Note; see also MEDLINEPLUS, Epilepsy, https://medlineplus.gov/epilepsy.html (last visited October 17, 2018) (noted that epilepsy is a brain disorder that causes people to have recurring seizures; the seizures happen when clusters of nerve cells, or neurons, in the brain send out the wrong signals; doctors use brain scans and other tests to diagnose epilepsy); MEDLINEPLUS, EEG, https://medlineplus.gov/ency/article/003931 .htm (last visited October 17, 2018) (noting that an EEG is a test to measure the electrical activity of the brain). Since August 2003, his VA treatment records reflect a diagnosis of epilepsy until October 2010. Cf. October 2010 VA Neurology Outpatient Note. Notably, prior to October 2010, an April 2006 VA treatment provider observed that he suffered a seizure which onset without warning and obvious trigger other than increased stress. At that time, the VA treatment provider opined that while it was possible his seizure was due to chemical exposure in service, the etiology was essentially unknowable because there were a large number of idiopathic epilepsies and epilepsy was a regularly occurring disease. Beginning in October 2010, the Veteran’s VA treatment providers began questioning the nature of his seizure disorder. October 2010 VA Neurology Outpatient Note; December 2010 VA Neurology Outpatient Note (questioned whether the Veteran had epileptic versus non-epileptic events); March 2011 VA Neurology Outpatient Note (questioned whether the Veteran had encephalopathic epilepsy versus or an alternate diagnosis). Specifically, an October 2010 VA Neurology Outpatient Note included an impression of generalized tonic-clonic seizures of an unclear etiology. In doing so, the VA examiner observed that his seizures have been unresponsive to pharmacotherapy to date and his age at presentation and overall clinical picture was not completely consistent with the prior differential epilepsy considerations. Consequently, the VA treatment provider expressed doubt that the nature of his seizure disorder was primary generalized epilepsy after two relatively regular EEGs. Further, the VA examiner opined there was likely a psychogenic component and his clinical picture was concerning for a non-neurologic disease. However, his history of a traumatic brain injury (TBI) complicated the clinical picture. A review of the claims file discloses the Veteran sustained a TBI post-separation in May 2009 due to a motor vehicle accident, which may have been a suicide attempt. See July 2009 VA Neurology Outpatient Note. An October 2009 Mental Health Consult recorded the Veteran’s belief that his motor vehicle accident was likely due to a seizure. However, he also reported feeling depressed about his “downward spiral” of financial and vocational problems prior to the accident. In April 2011, the Veteran’s VA treatment provider found his seizures have proven to be non-epileptic in nature. April 2011 VA Neurology Consult. A June 2011 VA treatment provider explained that three EEGs have returned essentially normal without epileptic discharge. Consequently, his seizures were likely non-epileptic/psychogenic in nature. In this regard, the Veteran has undergone two VA examinations; first in June 2010, then in June 2013. June 2010 General Medical VA Examination Report; June 2013 Seizure Disorder VA Examination Report. Following the June 2010 examination, the VA examiner diagnosed the Veteran with epilepsy, grand mal, based on his subjective complaints and current physical examination. June 2010 General Medical VA Examination Report. However, the VA examiner expressly stated no etiological opinion could be rendered because the VA examiner did not have access to his past records. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). As a result, the Board is unable to accord the June 2010 General Medical VA Examination Report any probative weight because the VA examiner had insufficient evidence to determine the nature of his disability to ensure the Board’s assessment of the disability was a fully informed one. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In contrast, upon examination in June 2013, the VA examiner diagnosed the Veteran with non-epileptic seizures. June 2013 Seizure Disorder VA Examination Report. In doing so, the VA examiner opined that it was less likely than not caused by or otherwise related to his service, to include exposure to toxins or other chemicals in service. The VA examiner expressly noted this was a clear diagnosis and not due to an undiagnosed illness. The VA examiner explained that he has been receiving treatment through the VA for a long time, and has undergone significant evaluations following which he was diagnosed with non-epileptic seizures. In particular, he has undergone numerous EEGs without an electrographic correlate. Further, his description of his seizures is consistent with non-epileptic seizures. The VA examiner indicated that non-epileptic seizures are unrelated to any neurological or medical diagnoses and suggested a review of his psychiatric evaluations for any related psychiatric diagnoses. Subsequently, the VA sought an addendum VA medical opinion. In January 2015, the same VA examiner explained that non-epileptic seizures were events that resembled epileptic seizure activity, but did not have an electrical correlate in the brain. Rather, they are generally believed to be due to psychological causes. Seizures due to toxins and chemicals would cause epileptic seizures because there would be a physiologic basis for damage or interference with the neurons in the brain leading to an abnormal synchronous neuronal discharge. Thus, his seizures were less likely than not caused by or otherwise related to his exposure to toxins or other chemicals in service. Further, the Veteran was afforded a mental disorders VA examination in March 2015. March 2015 Mental Disorders VA Examination Report. At that time, the VA examiner noted he had a long history of myoclonic episodes which varied in presentation and severity. Despite being treated with various medications, he continued to have variable seizure activity. However, multiple EEGs showed no specific activity consistent with neurogenic seizure activity. Following examination, the VA examiner diagnosed him with conversion disorder, a somatic disorder, which can be manifested by seizures. The VA examiner explained that symptoms of conversion disorder manifest during periods of very significant stress. These symptoms have no known metabolic or physiologic basis and are not related to any environmental exposures. In the Veteran’s case, the VA examiner found that prior to the onset of his seizure activity he was in a stressful marriage, working a low paying construction job, excessively drinking and having difficulty with finances. For instance, the VA examiner pointed to a double stab wound he sustained just nine months following separation from service. Id.; see also October 1996 M.H. History and Physical. At that time, he was attacked by his wife with a knife following an argument. He admitted to drinking a large quantity of alcohol prior to the incident. The VA examiner also cited a motor vehicle accident he suffered. March 2015 Mental Disorders VA Examination Report; see also July 2009 VA Neurology Outpatient Note; October 2009 Mental Health Consult. Prior to the accident he was under may situational stressors, such as finances and unemployment. While he denied a lack of conscious attempt at suicide, he admitted to having suicidal ideation at the time. He had researched on the internet various methods of committing suicide. Considering the above, the Board finds the preponderance of the evidence supports the finding the Veteran’s seizures are non-epileptic in nature. Cf. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); cf. also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). While initially, the August 2003 VA treatment provider diagnosed the Veteran with epilepsy, it was simply presumed despite an EEG and MRI which were both normal. No other tests were indicated by the VA examiner to confirm the diagnosis. Commencing in October 2010, his VA treatment providers reconsidered the nature of his seizures given he was unresponsive to pharmacotherapy for epileptic seizures, his age at presentation and overall clinical picture was not completely consistent with epileptic seizures. Despite undergoing multiple EEGs, each was found to be relatively normal, indicating there was no corresponding abnormal electrical activity of the brain. As the evidence detailed above establishes that epileptic seizures are caused by a brain disorder whereby the brain sends out abnormal electrical signals, but there are no tests confirming he demonstrated any such abnormal electrical activity of the brain, the Board must conclude his seizures are non-epileptic in nature. Given the Board’s finding the Veteran’s seizures are non-epileptic in nature, the April 2006 VA treatment provider’s opinion that it was possible his epileptic seizures were due to chemical exposure in service holds no probative weight. See Madden, supra. There is no indication the April 2006 VA treatment provider’s diagnosis was based on an EEG or other test demonstrating abnormal electrical activity of the brain. Further, the April 2006 VA treatment provider qualified this opinion by stating the etiology was essentially unknowable because there were a large number of idiopathic epilepsies and epilepsy was a regularly occurring disease. As another matter, the April 2006 VA treatment provider observed that he suffered a seizure which onset without warning and obvious trigger other than increased stress, which is consistent with the findings of record related to non-epileptic seizures associated with his diagnosis of conversion disorder. The only competent nexus opinions of record with respect to the Veteran’s non-epileptic seizures are the June 2013, January 2015 and March 2015 VA examiners’ opinions. The June 2013 and January 2015 nexus opinions were rendered by the same VA examiner. Taken together, they provide an adequate nexus opinion because they describe his non-epileptic seizures with sufficient detail to ensure the Board’s assessment is a fully informed one. See Stefl, supra. In finding that it was less likely than not his non-epileptic seizures were caused by or otherwise related to his service, to include exposure to toxins or other chemicals in service, the VA examiner explained that non-epileptic seizures were unrelated to any other neurological or medical diagnoses. While they resembled epileptic seizure activity, they do not have an electrical correlate in the brain. On the other hand, seizures due to toxins and chemicals would cause epileptic seizures because there would be a physiologic basis for damage or interference with the neurons in the brain leading to an abnormal electrical brain activity. Rather, non-epileptic seizures were believed to be due to psychological causes. In this case, the March 2015 VA examiner’s findings establish the Veteran’s non-epileptic seizures were a manifestation of his conversion disorder. The March 2015 VA examiner explained that symptoms of conversion disorder, which include seizures, manifest during periods of very significant stress. The VA examiner found that prior to the onset of his seizure activity he was suffering from multiple stressors. These stressors are well documented by the other evidence of record contemporaneous or near contemporaneous to his reports of seizure activity. None of these stressors were service related. In fact, his first seizure did not occur until 1998; over two years following separation from service. Although the Veteran has submitted a variety of articles related to Gulf War illnesses, none of these articles relate to his diagnosis of non-epileptic seizures. Instead, they generally pertain to potential neurological or other physiological damage caused by exposure to toxins, chemicals and environmental hazards. Given there is no evidence demonstrating his seizures are related to any neurological or physiological damage, these articles hold no probative value. See Madden, supra. As there are no competent nexus opinions of record contradicting the June 2013, January 2015 and March 2015 VA examiners’ opinions, they are necessarily the most probative evidence of record in this respect. Id. Accordingly, the Board finds the preponderance does not warrant service connection on a direct basis. Cf. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304; cf. also Fagan, supra. The Board also finds the preponderance does not warrant service connection as chronic disability due to the Veteran’s service in the Southwest Asia theater. Cf. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.317; cf. also Fagan, supra. There is a clear diagnosis associated with his claimed disability. It is not a part of a medically unexplained chronic multi-symptom illness. The only symptom associated with the claimed condition are non-epileptic seizures, which have been etiologically linked to his diagnosis of conversion disorder. Further, it is not among the infectious diseases delineated under 38 C.F.R. § 3.17(c). L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel