Citation Nr: 20055152 Decision Date: 08/20/20 Archive Date: 08/20/20 DOCKET NO. 15-18 828 DATE: August 20, 2020 ORDER Entitlement to service connection for a seizure disorder is denied. FINDING OF FACT The most probative evidence of record does not show that it is at least as likely as not that the Veteran’s current seizure disability was incurred in or caused by service. CONCLUSION OF LAW The criteria for service connection for a seizure disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1976 to May 1985. This matter comes to the Board of Veteran’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2018. A transcript of that hearing is of record. This matter was previously before the Board in March 2019, when it was remanded for further development. The matter now returns to the Board for appellate consideration. VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Entitlement to service connection for a seizure disorder is denied. The Veteran contends that he experienced seizures in active service in 1976 and 1984. The Veteran then contends that he experienced seizures related to alcohol use in 2011, and that he currently experiences what he calls “seizures” manifest by memory loss and confusion. The Veteran contends that he has a current seizure disorder that is related to his in-service seizures. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the claimant must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With regard to the first Shedden element, the presence of a current disability, the Board notes that the medical evidence of record shows that the Veteran has a diagnosis of alcohol withdrawal seizures from a September 2011 VA examination. The Veteran has also contended that he has current seizures manifest by memory loss and confusion. Social Security Administration records show that the Veteran reported experiencing seizures in 2013 and 2014. The Board notes that VA treatment records, particularly from March 2015, indicate that the Veteran’s symptoms are unlikely to be a part of a seizure disorder. The March 2015 records document a five-day EEG study to assess the Veteran’s complaints of symptoms. The Board notes that the Veteran was discharged with a diagnosis of spells of altered consciousness. As discussed further below, an October 2019 VA examiner found that the Veteran had no seizure related activity since an alcohol-related seizure event in 2011. A November 2016 VA psychological treatment report states that the Veteran was referred for diagnostic clarification of his somatic complaints. The evaluator noted the 2011 alcohol-related seizure and noted that the Veteran’s complaints of memory loss have been extensively evaluated in neuropsychological testing conducted in 2011, 2012, and 2015. The examiner noted that the 2015 testing showed the Veteran failed effort testing, with a lack of credibility in the findings. The evaluator also notes that the Veteran’s multiple complaints of alcohol-seizures rely heavily on patient reports and have not been observed by medical providers. The evaluator noted that the Veteran has also had extensive imaging and EEG testing to determine the cause of the Veteran’s complaints of memory lapses and seizures. She noted MRI testing from 2011 and 2012 that showed no physical cause of memory lapses and noted five separate EEG tests in 2011 (two), 2013, 2014, and 2015. The evaluator noted that all five tests showed activity within normal limits. She noted that the Veteran behaviorally showed signs of a memory lapse during the multi-day EEG tests, but there was no evidence of seizure activity. The report also stated that the Veteran’s memory lapses are likely a presentation of psychological distress. In evaluating the Veteran’s psychological symptoms, the evaluator noted that the Veteran failed effort testing in a memory malingering test in 2015, and that the Veteran overreported memory symptoms in the current evaluation. She stated that the Veteran’s reported memory lapses are sometimes referred to by the Veteran as “seizures.” The evaluator stated that although the Veteran likely had legitimate psychological distress, the Veteran’s reporting was an unreliable report of genuine symptoms. The evaluator diagnosed the Veteran with a Factitious Disorder, combined with an existing Conversion Disorder. The evaluator noted that when discussing her report with the Veteran, the Veteran acknowledged that many of his reported symptoms may not be genuine. The Board notes that the record does not show that the Veteran has the requisite medical knowledge to be deemed competent to diagnose a seizure disorder, or to relate his current symptoms of memory loss or confusion to a current seizure disorder. Further, the Veteran has not been shown to be competent to attribute his currently reported symptoms to in-service seizures. Such conclusions require medical expertise. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Such are complex medical matters. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board further notes that the Veteran is not found to be a credible reporter of his symptoms. With regard to the presence of a current disability, in reading the record in a light most favorable to the Veteran, the Board finds that the Veteran meets the first Shedden element of a current disability due to his alcohol related seizure disorder in 2011. The Board finds that the Veteran’s complaints of a seizure disorder after 2011 lack credibility and the probative medical evidence of record does not support the existence of a chronic seizure disorder following the 2011 alcohol-related seizure. The medical evidence of record supports the occurrence of in-service seizures. As such, the second Shedden element is satisfied. As to whether a relationship exists between the Veteran’s in-service seizures and a current disability, a September 2011 VA examination opined that the Veteran’s seizure disorder, diagnosed as alcohol withdrawal seizures, was not caused by, the result of, or related to seizure disorders that occurred on active duty. The examiner noted that VA treatment records clearly noted that the Veteran’s 2011 seizures were the result of alcohol withdrawal. The examiner further noted that it was atypical for a seizure disorder to not be evident from 1985 until 2011. The examiner noted that the Veteran was not being treated with medication and still had a driver’s license. That examiner’s report failed to consider a 1992 seizure and contentions that the Veteran can no longer drive. An addendum VA medical opinion was obtained in October 2019. That examiner addressed the 1992 seizure, indicating that medical records indicate that it was related to alcohol use. The examiner noted that the Veteran’s in-service seizures were not related to alcohol. The examiner addressed the temporal relationship of the Veteran’s seizures, noting that the amount of time between them did not support a nexus to service. The examiner also noted that the Veteran was not on seizure medication. The examiner also stated that the probative evidence of record did not document any further seizure activity after the 2011 episode. The examiner concluded that the 1992 seizure was unrelated to any seizure in service. The examiner also addressed the Veteran’s contention that he may no longer drive, noting that there was no probative evidence documenting that his driving limitation was related to a seizure disorder. The examiner then opined that the Veteran’s currently diagnosed seizure disorder was less likely than not related to the in-service seizures. The examiner reiterated that seizures in 2011 and 1992 were alcohol related, and that in-service seizures were not alcohol related. The examiner further noted that the Veteran was not on anti-seizure medication. The Board has considered whether the October 2019 examiner has adequately considered the Veteran’s lay contentions in determining that the probative evidence of record did not document seizure activity after 2011 and in finding that an inability to drive was not related to a seizure disorder. As noted above, the Veteran’s is not deemed credible with regard to his reported seizures following 2011, and his lay contentions therefore lack probative value. VA treatment records from 2015 show that the Veteran was discouraged from driving until his reported episodes subsided. However, the November 2016 psychological evaluation showed that the Veteran endorsed being unable to drive due to seizures, and also because his license was taken away due to non-payment of child support. The examiner’s findings are consistent with the credible evidence of record. With regard to whether the Veteran’s 2011 seizure is related to service, the Board affords great probative weight to the conclusions of the September 2011 and October 2019 VA examiners who found that the Veteran’s post-service alcohol-related seizures are unrelated to those he experienced in service. The examiner’s applied their medical expertise and their findings, when read together, accurately address the medical evidence of record. The Board thus finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s current seizure disability was incurred in or caused by service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt provision is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.