Citation Nr: 21004256 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-04 220A DATE: January 26, 2021 ORDER Entitlement to service connection for seizures is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s claimed seizure disability was incurred in, or is otherwise etiologically related to, his active duty military service to include military sexual trauma (MST). CONCLUSION OF LAW The criteria for service connection for seizures have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1968 with verified service in Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a December 2018 Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the Veteran's record. The Board observes that the Veteran initially asserted entitlement to service connection for posttraumatic stress disorder (PTSD) with seizures due to military sexual trauma (MST). See June 2011 Statement in Support of Claim. The claim was recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and seizures. See March 2019 Board REMAND. Service connection for PTSD was granted in an August 2020 rating decision with a 50 percent rating and June 2011 effective date. The same day, a Supplemental Statement of the Case was issued denying service connection for seizures. The claim of entitlement to service connection for seizures was most recently before the Board in October 2020, at which time it was remanded for additional development to include a VA medical opinion to address the theories of direct service connection or secondary service connection based on aggravation of his claimed seizure condition. The record shows VA requested and subsequently obtained a November 2020 addendum medical opinion. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for further appellate review. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (the Court) has held that in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede aggravation unless the baseline level of severity of the non-service-connected disease is established by medical evidence. 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he has actually observed and is within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At issue is whether the Veteran is entitled to service connection for seizures. The Veteran specifically contends that he developed pseudo seizures as a dissociative phenomenon following MST during active service. See June 2011 VA Form 21-526 Application for Compensation or Pension. Following a thorough review of the claims file, the Board finds the preponderance of the evidence indicates that service connection for seizures is not warranted. The Board acknowledges the Veteran has been diagnosed with a seizure disorder. See August 2020 VA seizure disorders (epilepsy) examination noting a diagnosis of absence seizures or petit mal or atonic seizures (generalized non-convulsive seizures) from 1970. Therefore, the only questions for the Board are whether the seizure condition is directly caused by, proximately due to, or aggravated by the MST he experienced or by PTSD. VA treatment records include an October 2010 VA Agent Orange program record note, wherein the Veteran reported a seizure disorder diagnosis. A December 2010 primary care record noted the Veteran’s most recent seizure was more than 15 years ago. A February 2011 MST consultation record noted the Veteran reported being diagnosed with a seizure disorder after returning from Vietnam, and he has been on anti-seizure medication for 30 years. A March 2011 VA mental health group counseling record noted diagnoses of MST-related PTSD and seizure disorder. An October 2011 VA psychology record that noted the Veteran raised concerns about past diagnosis of a seizure disorder. A July 2013 VA primary care record that noted the Veteran’s last seizure was18 years ago and he no longer requires physical examination for seizures. A May 2017 VA primary care record that noted no seizures in 20 years and the Veteran is off anti-seizure medication. A May 2018 VA mental health outpatient record noted the Veteran reported a seizure disorder diagnosis in the past, but he was later informed it was PTSD. An August 2019 VA neurology consult noted seizures started in early 20’s but he had been seizure-free for more than 20 decades, so medication was stopped 6 years prior. The claims file includes several lay statements, dated September 2012, from family and friends. The Veteran’s spouse indicated the Veteran suffered his first seizure in 1971. The Veteran’s brother reported witnessing a seizure in 1978. Separate statements from the Veteran’s stepfather and two sisters-in-law reported being told about the Veteran’s seizures. The Board also reviewed a September 2012 VA Memo that noted the Veteran claimed MST occurred in July 1968, but military personnel records show he departed Vietnam in May 1968 returning to the United States at that time. The claims file includes a December 2019 VA initial PTSD examination. The examiner noted that it was unclear if Veteran’s seizures are psychologically based or not. Therefore, no diagnosis was made regarding the seizures. However, the examiner noted the Veteran did meet that full criteria for PTSD. Noting the above, the examiner did not provide an etiology opinion for seizures in the attached medical opinion. In an August 2020 VA seizure disorders (epilepsy) examination, based on a review of the record, the examiner confirmed a diagnosis of absence of seizures or petit mal or atonic seizures (generalized non-convulsive seizures) from 1970. The examiner noted that the Veteran took anti-seizure medication for more than 40 years but stopped 15 years ago, and his last seizure was 23 years ago. In the attached medical opinion, the examiner opined that the Veteran’s seizure condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected PTSD. As a rationale, the examiner noted all available medical records were reviewed and cited to relevant medical literature regarding the evaluation and management of adult seizures. The examiner noted that there is no credible medical evidence to support a causal link between a true seizure disorder (requiring medication management) and a mental health condition to include PTSD. The examiner concluded a nexus is not established. Following the October 2020 Board REMAND, VA obtained a November 2020 VA medical opinion to address direct and aggravation theories for service connection. As to a theory of direct service connection, the examiner opined that the seizure condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted there is no evidence of a seizure during service nor events likely to cause seizures. Additionally, the separation examination is negative for seizure or events likely to cause seizure. The examiner noted the multiple September 2012 lay statements that reported the onset of seizures in or around 1971 and compared these reports with the August 2020 VA seizure examination that noted onset in 1970. The examiner noted there is no documentation of any workup for seizures in the 1970s. Nonetheless, the examiner pointed out that there was no injury in service suggestive of a cause of seizure, no seizures noted during active service or at the time of separation, and no seizures reported until three years post separation. Therefore, it was less likely than not that the Veteran's seizure disorder had its nexus in service or is due to events in service. Addressing the theory of secondary service connection, the examiner opined that the Veteran’s seizure disorder was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected condition. As a rationale, the examiner noted that the exact etiology of the Veteran's seizures had not been ascertained per the available medical records. However, treatment with anti-seizure medication suggested a non-psychogenic cause. The examiner noted that psychogenic seizures are usually treated with drugs specific for the psychological conditions contributing to psychogenic seizures, rather than seizures themselves. The examiner noted the Veteran was diagnosed with PTSD and had been seizure-free for more than 20 years after stopping medications; therefore, it was highly unlikely the seizures were due to PTSD. The examiner concluded by noting that aggravation is moot since the Veteran has been seizure-free for more than 20 years. Notwithstanding the examiner’s conclusion that aggravation is moot, the examiner addressed this theory of secondary service connection. After noting that a baseline level of severity for seizures could not be determined based on the available medical evidence, the examiner opined the Veteran’s seizures were not at least as likely as not aggravated beyond its natural progression by service-connected PTSD. As a rationale, the examiner reiterated the Veteran had been seizure-free for more than 20 years without medications. The examiner concluded there has been no aggravation of the Veteran’s seizure disorder despite the continued PTSD. Therefore, it was less likely than not that the Veteran's seizure disorder had been aggravated beyond its natural course due to any cause. Medically speaking, the condition had resolved. The Veteran has been both medication-free and seizure-free for an extended period. The Veteran testified that he did not report the MST. While the Veteran, his spouse, and family are competent to describe the Veteran’s seizure symptoms, there is no evidence of record to show that they have the specialized medical education, training, or experience necessary to render a competent medical opinion as to the nature and etiology of his seizure disorder. Providing an etiology regarding a disability is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent the Veteran and his family assert that a relationship exists between his seizure disorder and his service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. In short, the preponderance of the evidence is against the Veteran's claim, and the claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See Gilbert, supra. Entitlement to service connection for seizures is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.