Citation Nr: 21062368 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-31 263 DATE: October 7, 2021 ORDER Entitlement to service connection for a seizure disorder, including partial complex seizures or epilepsy, is denied. FINDING OF FACT The Veteran's seizures, diagnosed as partial complex seizures, did not have onset during or soon after his service and are not related to any disease, injury, or events during his service. CONCLUSION OF LAW The criteria for service connection for a seizure disorder, including partial complex seizures or epilepsy, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1973 to February 1974. This matter comes to the Board of Veterans' Appeals (Board) from a November 2012 rating decision. In that decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for seizures. In January 2019 the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. In a June 2019 decision, the Board denied service connection for epilepsy. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In June 2020 the Veteran and VA (the parties) submitted to the Court a joint motion for partial remand (JMPR), requesting that the Court vacate the part of the June 2019 Board decision that denied service connection for epilepsy and remand that parts to the Board for specified actions and then readjudication. In June 2020 order, the Court granted the JMPR. In July 2020 the Veteran submitted arguments regarding his service connection claim. In a July 2020 letter, the Board informed the Veteran that he could, if desired, submit additional argument and evidence to the Board. The Board told the Veteran that, if he submitted new evidence, he had the right to have that evidence considered by the agency of original jurisdiction (AOJ) (in this case, the RO), or he could waive that right and have the evidence considered directly by the Board. In August 2020 the Veteran submitted additional evidence, including private and VA medical records. He asked the Board to remand the case for the RO to consider the new evidence. In December 2020, and again in April 2021, the Board remanded the epilepsy service connection claim to the RO for additional action. In a July 2021 rating decision, the RO granted service connection for cranial nerve disorders residual to the Veteran's Bell's palsy. 1. Entitlement to service connection for a seizure disorder The Veteran reports that he began to have epileptic seizures soon after his separation from service. He contends that that his seizure disorder, claimed as epilepsy, is attributable to injury, disease, or other events during his service. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including epilepsies, may be established 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 discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. On entrance examination in September 1973, the Veteran reported that he had a head injury with concussion at age nine or ten. He marked no for history of epilepsy, fits, or periods of unconsciousness. The examiner marked normal for the Veteran's neurologic condition and the condition of his head. In October 1973 the Veteran reported a two week history of dizzy spells. In November 1973 he reported having dizzy spells in the preceding week. He had persistent high fever. He was hospitalized and treated for pneumonia. In December 1973, a clinician found that chronic lumbosacral strain disqualified him for further service. On separation examination in April 1974, the examiner marked normal of his neurologic condition and the condition of his head. The Veteran has not identified any treatment during the year following his separation from service. In February 1977 he sought service connection for Bell's palsy, pneumonia, and a low back disorder. In VA treatment in May 1977 he was found to have Bell's palsy. The symptoms he reported then did not include seizures, spells, or similar symptoms. In VA treatment in April 1978, he reported a history of a spell in which his eyes rolled up and he fainted. His account is unclear as to when the spell occurred, but the sequence of events he related suggests it was not earlier than 1977. Records of other VA treatment of the Veteran in the late 1970s and in the 1980s do not contain any report of seizures or spells. In VA treatment in December 1992, the Veteran reported that in November and December 1992 he had three spells, with symptoms such as eye twitching and loss of consciousness. He stated that during service he was beaten by his drill sergeant and experienced aggravation of a nervous condition. A physician found no evidence of epileptic seizures. In private treatment in July 2004, the Veteran reported that during service he was hit in the head several times. In private treatment in January 2008, the Veteran reported headache, double vision, and dizziness. He related a six to seven month history of intermittent losses of consciousness. He reported having seizures in early January 2008. A physician listed an assessment of seizure disorder and referred the Veteran for a neurology consultation. A physician noted that the Veteran was scheduled to see a neurologist for symptoms of partial complex seizures. The physician assessed possible partial complex seizures. An EEG, with 72 hours of continuous monitoring, showed mildly abnormal findings, but did not suggest epileptiform discharges. On MRI the Veteran's bran appeared normal. In private treatment in March 2009, the Veteran reported episodes in which his eyes rolled back, and he was unable to talk. In July 2009 he reported having seizures. In 2011 the Veteran sought service connection for several conditions including a seizure disorder. In VA treatment visits in April and August 2011, the Veteran reported that he had seizures years ago, but no longer had them. In July 2011, he stated that in service he had severe head trauma. VA treatment records from 2015 through 2020 reflect that in 2011 a VA physician added seizures to a list of the Veteran's disorders. In treatment in May 2016, the Veteran stated that his head was spinning. In treatment in January 2017, he reported that he felt his right eye rolling, experienced blurring of his vision, and thought that he was going to pass out. In July 2019 the Veteran had an emergency room visit to address a near-syncopal episode earlier that day. In the January 2019 Board hearing, the Veteran indicated that he experienced seizures soon after his separation from service and continued to have seizures through the present. On VA examination in January 2021, the Veteran reported that after his service he had seizures. He stated that the seizures stayed the same thereafter. On VA examination in June 2021, the Veteran reported that during service his commanding officer beat him. He indicated that subsequently he had blackouts. He related that, beginning in 1974 when he got out of service, he had episodes with his eyes rolling back, losses of consciousness, jerking, and tongue biting. He stated that eventually testing resulted in a diagnosis of seizures. The examiner found that the Veteran's records showed testing in 2008 and reflected a diagnosis of partial complex seizures. The examiner expressed the opinion that the Veteran's partial complex seizures less likely than not began during his service or were otherwise causally related to injury, disease, or other events during that service. In explanation, the examiner noted that the Veteran's assembled medical records from before 2008 showed neurology consultations but did not include any finding of seizures. From 2008 physicians have found that the Veteran has a current seizure disorder, including with a diagnosis of partial complex seizures. The Veteran's service treatment records reflect reports of dizzy spells, but no finding of seizures. The normal neurologic findings on separation from service are evidence against the existence of a seizure disorder at separation from service. The Veteran later reported a history of seizures soon after service. He has not stated that he had seizures during service. The preponderance of the evidence is against the occurrence of seizures during service. There is no contemporaneous evidence as to whether the Veteran had seizures during the year following his separation from service. The assembled evidence does not provide a basis to presume service connection for epilepsy. In post-service treatment, the Veteran reported one spell in 1977 or 1978 and three spells in 1992. Physicians who treated him at those times did not find that the reported spells were seizures. No clinician has supported a nexus between the Veteran's seizure disorder that was found from 2008 forward and any disease, injury, or events during his service. The June 2021 VA examiner opined against any such nexus. The preponderance of the evidence is against a nexus. The Board denies service connection for the Veteran's seizure disorder including partial complex seizures. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.