Citation Nr: 18153411 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-19 851 DATE: November 27, 2018 ORDER Service connection for seizure disorder is denied. FINDING OF FACT It is less likely than not (less than 50 percent probability) that the Veteran’s seizure disorder either began during or was otherwise caused by his military service, to include as a result of herbicide exposure in service. CONCLUSION OF LAW The criteria for service connection for seizure disorder have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1969 to August 1970. Service Connection - Seizure Disorder The Veteran is seeking service connection for his seizure disorder, which he believes resulted from his service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.§ 1110; 38 C.F.R.§ 3.303. Service connection requires competent 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 disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Here, the records show that the Veteran was first diagnosed with seizure disorder in July 2003, which is more than 30 years after he separated from his service, therefore, service connection based on the presumption for chronic disease is not warranted. In addition, service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). A veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam is presumed to have been exposed to herbicides and the veteran is entitled to a presumption of service connection for certain diseases listed under 38 C.F.R. 3.309(e). Here, the Veteran’s service records show that he served in Vietnam from October 1969 to October 1970. As such, he is presumed to have been exposed to herbicide agents, such as Agent Orange. However, the seizure disorder is not a disease that is presumptively related to exposure to herbicide agents under 38 C.F.R. 3.309(e), therefore, service connection under presumptive herbicide exposure is not warranted. Even when presumptive service connection is not available, the Board must also consider whether service connection is warranted on a direct basis. The Veteran claimed that he developed seizure during service. Service treatment records (STRs) are silent to any seizure disorder being diagnosed. The STRs do document that the Veteran passed out while standing in formation in February 1969, which the Veteran believes marks the onset of his seizure disorder that was later diagnosed. In July 2003, T.S.R., M.D., diagnosed the Veteran with a seizure disorder. Additionally, private treatment records dated September 2004, November 2004, March 2005, March 2006, and April 2007 from Dr. L.B.B. indicate examinations and treatment for possible seizures and probable pseudoseizures and headaches. Specifically, a September 2004 private treatment record from Dr. L.B.B. notes that the Veteran reports having experienced “shaking episodes” for many years. In November 2017, the Board requested an expert opinion from a neurologist as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a seizure disorder that either began during or was otherwise caused by his military service, to include as a result of exposure to herbicide agents, and asked the expert to provide underlying rationale for the opinion. In May 2018, a neurologist concluded that it was not at least as likely as not that the Veteran had a seizure disorder that either began during or was otherwise caused by his military service, to include as a result of exposure to herbicide agents, and provided the following rationale: The Veteran’s service records were reviewed from the VBMS which included the private treatment records from Dr. Royester, Dr. L.B. Boyer and the treatment records from Birmingham VAMC, all from 2003 until October 2016. The summary of these records is as below: The first EEG performed by Dr. Hull for Veteran’s “shaking episode” was normal. The next EEG at Kirklin clinic was negative and showed no epileptic findings. Long-term EEG (LTEEG) monitoring 2010/2011 was reported as: LTEEG showed two (2) NES (Non-epileptic spells) events but some confusion as to if these are his typical events. Clinically, as per the notes from private neurologist, Dr. Boyer’s working diagnosis on September 23, 2004, on initial encounter was “partial complex seizures with some absence like episodes.” Over the course of follow-up and repeated reevaluation and adjustment in treatment, the last note from April 18, 2007, reported the diagnosis as probable pseudo seizure and headaches. Also as per the records he was tried on multiple different anti-epileptic drugs (AEDS) which had to be changed or stopped due to side effects or not being effective with no therapeutic benefits. Based on these treatment records the diagnosis of seizures is not at least as likely as not that the Veteran has seizure disorder that either began during or were caused by his military service. The fainting episode during formation in service as per records was described on February 27, 1969 as follows, “Veteran had an episode where he passed out. He had abdominal pain and nausea and was fasting since yesterday.” Vitals -BP 118/80 and Temp 99. This event was unrelated and clinically different than the “shaking episodes” in question and so, in my opinion, has no relevance with diagnosis of seizure. There is also no reported evidence of having seizures secondary to exposure to herbicide agent. The VHA opinion has not been challenged or contradicted by other medical opinion, and it is both grounded in the evidence of record and well-reasoned. As such, the opinion is afforded great probative value. Moreover, this evidence makes it less likely than not that the Veteran had a seizure disorder either began during or was otherwise caused by his military service, to include as a result of exposure to herbicide agents. While the Veteran believes that his seizure disorder began during service, such a determination is a medically complex question, and the Veteran lacks the medical training or expertise to render such an opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Nevertheless, an expert medical opinion was obtained to directly and specifically consider the Veteran’s contentions, but ultimately the medical professional found that the evidence did not medically support the Veteran’s contentions. In sum, the evidence is insufficient to establish service connection for Veteran’s seizure disorder on either a presumptive or a direct basis. Service connection is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel