Citation Nr: 21002240 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-29 053 DATE: January 13, 2021 ORDER Entitlement to service connection for a seizure disorder is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, residuals of a head injury, to include a seizure disorder, are at least as likely as not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a seizure disorder have been 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 served on active duty in the U.S. Army from May 1968 to March 1970. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge during a November 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. The issue of service connection for a seizure disorder was remanded for further development in a May 2019 Board decision. The appeal is now returned to the Board for further consideration. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for a seizure disorder The Veteran asserts that his seizure disorder had an onset in-service or is otherwise related to service, particularly that the seizure disorder is related to repeated concussions from firing 175-millimeter artillery, greater to or equal to 3,000 rounds per month. See November 2018 Board hearing transcript, page 6. At his November 2018 Board hearing, the Veteran provided sworn testimony, “I would say that it was the blast over pressured…explosion of that noise and concussion repeatedly is traumatic. And I think it has long-term consequences, not so much immediate…my opinion has never changed. I think it was earth-shaking…I believe my middle ear is completely rearranged. See November 2018 Board hearing transcript, page 9.   Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or does not manifest to a compensable degree within the applicable time period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background As noted above, the Veteran is currently service connected for PTSD. See January 2017 rating decision. Service treatment records for the Veteran do not reflect any complaints, diagnoses, or treatment for a seizure disorder, including his March 1970 separation physical. See March 1970 Reports of Medical Examination and Medical History. Post-service treatment records from the VA Medical Center reveal that the Veteran experienced “unresponsive” episodes, which a neurologist believed to be seizures. See January 2014 VA Primary Care Note Addendum. The Veteran was under the care of a private treatment provider for seizures before he transferred to the VA Medical Center. See September 2019 VA Neurology note. In January 2014, the Veteran reported, “[T]hree episodes of being unresponsive which the neurologist believes could be seizures.” See January 2014 VA Primary Care Note Addendum. A February 2014 treatment record included, “Having seizures in my sleep,” but the Veteran did not report any dizziness or numbness, had no facial asymmetry, no arm weakness, no speech difficulty, and no thinking difficulty. See February 2014 VA Primary Care note. The Veteran was eventually diagnosed with a seizure disorder and given a prescription of Keppra. See September 2014 VA Mental Health Consult note (“Diagnosed seizure disorder earlier this year”). By February 2015, treatment providers noted, “[S]eizure (medications) helping but (Veteran) continues to have occasional petite mal seizures.” See February 2015 VA Mental Health Physician Assistant note. Shortly thereafter, the Veteran’s primary care physician documented, “[P]ossible seizure activity one (month) ago…no (loss of consciousness), [n]o loss of bowel or bladder control…Started with seizures in sleep 2 (years) ago…headache prior to recent episode. Has had no further episodes.” See March 2015 VA Primary Care note. In September 2016, it was noted that the Veteran, “[C]ontinues to have absence spells and one episode of (loss of consciousness)…woke up on the floor like he was coming out of a sleep…head was bleeding but not sure what happened.” See September 2016 VA Mental Health Physician Assistant note. At his October 2016 neurology appointment, it was recorded, “Previous MRI / EEG reportedly normal…Most recent event was staring spell 2 (months) ago.” See October 6, 2016 VA Neurology Note. Another October 2016 treatment record notes “(loss of consciousness) during football” and questioned whether the Veteran had a “mild (traumatic brain injury) from artillery” in-service. A history for the Veteran included, “Patient (with) seizures since Type 1: 2011. Nocturnal change in breathing pattern. Could get stiff. Unarousable 3-4 min. Confused several (minutes) afterward. Once every 3-4 mos. Type 2: 2015. Staring / behavioral arrest (for) 1-2 min. No confusion. Once every 4 months. Type 3: 2016. (Loss of consciousness) (for) few seconds. Postictal confusion. Single episode.” See October 2016 VA Neurology Note Addendum. In December 2016, the Veteran reported, “[H]ad another seizure last week and went to the (emergency room)…states that he had missed his dose of Keppra the night before.” See December 2016 VA Mental Health Physician Assistant note. A February 2017 VA appointment related, “[H]ad a seizure in Wal-Mart (Type 1 event) happened in the aisle and he had (loss of consciousness) and tongue biting in December (2016). Had missed a Keppra dose beforehand.” See February 2017 VA Neurology Outpatient note. In April 2019, a neurologist noted, “chronic epilepsy, suspected to be focal in onset, with semiologies consistent with impaired awareness seizures and seizures involving convulsions (most often at night)…Routine interictal EEGs have all been normal” See April 2019 VA Neurology note. Three months later, a July 2019 neurologist recorded, “2-3 times per month…spacing out spell” lasting “5-10 seconds.” The Veteran reported he had no awareness of surroundings during the event and no post-event confusion. See July 2019 VA Neurology note. Most recent treatment records show, “No seizures since Jan 2020 in the setting of a missed dose of medication.” See June 2020 VA Neurology Telephone Encounter note. Private treatment records provided by the Veteran do not contain any notes or history related to his seizure disorder. At a November 2019 VA examination, the Veteran reported that he began having seizures “in 1990s” and opined his seizures, “might be due to a mild (traumatic brain injury) from service.” The spouse of the Veteran indicated, “Sometimes he passes out with (loss of consciousness) and convulsions…temporarily goes blank without the ability to follow commands and temp(orary) amnesia following seizures.” The Veteran reported more than 2 minor seizures in the last 6 months, only 1 major seizure in the last 2 years, and no psychomotor seizures at any time. There were no other pertinent physical findings. Regarding functional loss, the Veteran reported “decreased productivity and safety issues.” The examiner noted that a 2016 EEG was “normal,” but an MRI in 2016 revealed, “prior hemorrhage with scarring (right) temporal lobe” and “[s]evere dolichoectasis affecting mesial temporal lobe and pons.” Finally, the November 2019 examiner concluded, “The claimed condition was at least as likely as not (a 50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness.” The rationale included, “(Service connection) for PTSD and a strong likelihood of head trauma prior to service were plausible etiologies for the diagnosis of a seizure disorder.” See November 2019 VA examination report. An additional VA examination was performed in May 2020, where the Veteran was diagnosed with a seizure disorder. Again, the Veteran reported experiencing seizures “in 1990s” and stated that his seizures “might be a mild (traumatic brain injury) from service.” The examiner noted that the diagnosis was confirmed by neurology medical documentation and further witnessed by the spouse of the Veteran. The most recent seizure reported by the Veteran was in March 2020. Additional seizure activity included 2 or more minor seizures in the last 6 months, 1 major seizure in the last 2 years, and no psychomotor seizures at any time. There was no finding of epilepsy associated with psychotic, psychoneurotic, or personality disorders. No other pertinent physical findings or significant findings were noted. Functional limitations included working at heights, ensuring 8 hours of sleep in a 24-hour period, no more than a 12-hour workday, no operating heavy machinery, no firing a weapon or participating in live fire exercises, decreased productivity, and safety issues. See May 2020 VA examination report. The May 2020 examiner concluded, “The claimed condition is at least as likely as not proximately due to or the result of the Veteran’s (service connected) condition.” The examiner’s rationale was, “Seizures are one of the secondary complications that may occur following a traumatic brain injury (TBI). People at the highest risk for TBI-related seizures are those with moderate to severe brain injury, penetrating brain injuries, subdural hematomas, and the young. One of the problems that can occur after a TBI is seizures. Although most people who have a brain injury will never have a seizure. Most seizures happen in the first several days or weeks after a brain injury. Some may occur months or years after the injury. Approximately 57% of head injured individuals developed epilepsy within one year of injury. 80% of the time, they occur within the first 24 months. Longer onset epilepsy beginning more than four years after the trauma occurs in 20% of patients who developed epilepsy. PTSD and prior head trauma…are plausible etiologies for the diagnosed seizure disorder.” See May 2020 VA examination report. A third VA examination was conducted in October 2020. The Veteran reported that his seizures began “around 2007” and included “passing out, ‘absence seizures,’ blanking out, and memory loss.” The diagnosed “seizure disorder” was confirmed by neurology medical documentation and witnessed by the spouse of the Veteran. The examiner noted the December 2016 seizure in Wal-Mart, with the most recent seizure reported in July 2020. In the previous 6 months, 2 or more minor seizures were noted, along with 2 or more minor psychomotor seizures in the prior 6-month period. There were no major psychomotor seizures in the past 2 years, and the Veteran reported never having experienced a major seizure. See October 2020 VA examination report. There was no finding of epilepsy associated with psychotic, psychoneurotic, or personality disorders, nor were there any other pertinent physical significant findings. Functional limitations included the inability to drive or to complete job duties. Finally, the October 2020 examiner opined, “The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness.” The rationale included, “Service treatment records do not show that there was an occurrence of seizures while in-service. Veteran separated from service in 1970 and claims of seizure activity didn’t begin until 2011, more than 41 yrs later…service treatment records are silent for claims of concussions while in-service.” See October 2020 VA examination report. Analysis All evidence, medical or otherwise, submitted during the course of an appeal must be addressed when VA renders a decision on a claim. See 38 U.S.C. § 5107(b) (2006). The Board finds that the October 2020 VA examination report is inadequate for several reasons. First, the examiner failed to address the Veteran’s statements regarding the potential penetrating or traumatic brain injury resulting from his exposure to 3,000 rounds or more of artillery fire for almost 2 years. See Dalton v. Peake, 21 Vet. App. 23 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Next, the Veteran submitted “case studies” and literature from the military discussing heavy artillery exposure and resulting medical conditions. See November 2018 hearing transcript, page 7. The examiner failed to discuss the literature in the report. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Finally, the lack of evidence of in-service treatment or diagnosis may not serve as the basis for a medical opinion. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). By contrast, the Board notes that the VA medical opinions of November 2019 and May 2020 are thorough and responsive, identifying and describing pertinent evidence, including medical treatment records and competent lay testimony. The opinions adequately resolve the medical questions sought in the May 2019 remand, particularly statements by the Veteran that his condition “is due to the repeated firing of heavy guns during his time in-service.” In addition, the medical opinions of November 2019 and May 2020 explain a complex medical issue, that is the potential relationship between exposure to artillery fire in-service and any current medical conditions. More importantly, the medical opinions provide sufficient information to allow the Board to make a final decision, while satisfying the requirements of Stegall v. West, 11 Vet. App. 268 (1998). The November 2019 and May 2020 medical opinions the most probative evidence of record on the question of diagnosis and nexus to service. The opinions were based on an extensive review of all of the evidence, including lay statements from the Veteran, were supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The November 2019 and May 2020 opinions are consistent with one another and with the evidence of record. The November 2019 and May 2020 VA opinions provide compelling evidence for the Veteran’s claim of service connection. In summary, a review of the complete record, including VA treatment, VA examinations, and the lay statements of the Veteran, indicates that the evidence is at least in equipoise. The seizure disorder diagnosed in the Veteran is plausibly the result of his PTSD and / or the exposure to artillery fire in-service. Therefore, service connection is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.