Citation Nr: 21063101 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 15-26 097 DATE: October 13, 2021 ORDER Entitlement to service connection for a seizure disability is denied. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS), abdominal hernias, residuals of surgery for a perforated colon, scar tissue of the colon, and bladder problems, is denied. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran's seizure disability occurred in, or is the result of, his period of active duty service. 2. The evidence of record is against finding that the Veteran's claimed gastrointestinal disability, to include irritable bowel syndrome (IBS), abdominal hernias, residuals of surgery for a perforated colon, scar tissue of the colon, and bladder problems occurred in, or is the result of, his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a seizure disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS), abdominal hernias, residuals of surgery for a perforated colon, scar tissue of the colon, and bladder problems are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training (ACDUTRA) from January 1986 to July 1986 and July 7, 1990, to July 21, 1990, as well as active duty service from January 1991 to June 1991, with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. These claims twice have been remanded by the Board. In its September 2017 Decision, it instructed the agency of original jurisdiction (AOJ) to obtain missing VA medical records, afford the Veteran the opportunity to identify private treatment records, and afford him examinations and opinions for these claims. From November to December 2020, VA complied with those instructions. The Board's most recent Decision (April 2021), however, deemed all the December 2020 opinions inadequate and again remanded these issues to address adequately the Veteran's various theories of entitlement (discussed more fully below). In July 2021, the AOJ secured a host of new opinions, which will be discussed. Thus, the Board finds that the AOJ substantially has complied with its most recent remand directives permitting readjudication. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a seizure disability is denied. The Veteran argues that he suffered a heat stroke in July 1990 while performing chemical training at Fort McCoy. He alleges that has experienced symptoms since then, consisting of sensitivity to the heat and cold, as well as memory loss. June 11, 2012, VA Form 21-4138. Service treatment records (STRs) confirm, as the Veteran asserts, that he was treated in July 1990 for heat exhaustion. He was admitted to St. Mary's Hospital where he was discharged two days later. The notes for the course of his stay are as follows: The patient did have some sweats and chills on a couple of occasions since in hospital. He has however remained afebrile throughout and is feeling much improved. Because of the sweats we did a couple of White Counts on him to rule out any infectious process. The first of these returned 9,500 with 53 segs, two bands, 6 eosinophils and 39 lymphs. Hemoglobin then was 15.8 with Hematocrit 45.7. Repeat white count was 7,700 with 55 segs, 2 bands, 9 eosinophils, one basophil, 31 lymphs and 2 monos. Sodium was 141 on admission and Potassium 4.2. The course of hospitalization was unremarkable except for the very slight sweats and we will therefore discharge him back to quarters today to return to regular duty at the discretion of TMC tomorrow. He is on no medication and discharge diagnosis is that on admission. The discharge diagnosis was "heat exhaustion." Post-service VA medical center (VAMC) records from 1994 to 1997 show that the Veteran was seen and treated for what was suspected to be a seizure disorder due to his reports of blanking out, loss of awareness, and losing consciousness. He was prescribed various medications over the course of those years. Mental status examinations from May and August 2011, as well as June 2012 reveal no objective cognitive deficits or memory impairment. Records from July 2012, however, note that the Veteran subjectively has experienced problems with imbalance and memory loss for at least the last three months. In May 2013, the Veteran submitted, among other things, a VA printout discussing chemical agent resistant coating (CARC) paint, as well as veterans who may have been exposed to it and possible side effects therefrom. The printout states that Gulf War veterans that painted combat vehicles may have been exposed to CARC paint or fumes without adequate respiratory protection. The noted possible health concerns include itching and reddening of skin, respiratory complications, and kidney damage. A June 2013 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner noted the Veteran's diagnosis of "[a]bsence seizures or petit mal or atonic seizures" since "about 1994 or so." The Veteran related that he gets seizures threefour times per day, lasting up to about one minute. They are precipitated by feelings of dizziness. The Veteran then-currently was taking Valproic acid. He reported being "sent to Kuwait for a month during Operation Desert Strom" but that he was not "deployed." He endorsed working as a mechanic and spent a lot of time "painting vehicles desert tan colors." While he acknowledges being assigned respiratory protection, he contends that it was "inadequate." In opining that the Veteran's seizure disorder was less likely than not related to CARC exposure, the examiner provided the following opinion: No research can be found to link CARC to seizure disorders. Short term acute exposure is said to have neurological effect, but these are not delineated. Long term neurological effects are often associated with the deliberate inhalation of solvents. They do not list seizures as one of these effects. The information lists brain lesions, pre-senile dementia, polyneuropathy, motor control/equilibrium issues and vision problems. (This is gathered from CDC (Center for Disease Control), NIOSH (National Institute for Occupational Safety and Health), OSHA (Occupational Safety and Health Administration and other sources). The examiner offered no opinion as to whether the Veteran's seizure disorder was related to his episode of in-service heat exhaustion. A December 2020 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. This report confirmed the same seizure diagnosis, but this examiner believed no official diagnosis was rendered until 2004. The report, however, then becomes somewhat confusing and contradictory. It notes that he requires continuous medication (Depakote three times per day), but that no seizure disorder has been confirmed. The examiner checked off "YES" when asked if the Veteran had any type of seizure activity, indicating that the earliest was in 1994 and that the most recent was in 2016. In the last six months, the Veteran was noted to have experienced 01 minor seizure. An MRI from January 2017 showed multiple white matter changes of questionable significance. Because the Board's April 2021 Decision deemed the associated medical opinion inadequate, it will not be discussed. Rather, a new opinion was obtained in July 2021. It states in pertinent part: There are records to indicate claimant was evaluated for heat exhaustion as noted per records 7/16/90 noting he was discharged from St Mary's Hospital with documentation stating course of hospitalization, admitted with heat exhaustion, was unremarkable except for very slight sweats, and to discharge him back to quarters today and return to regular duty at the discretion of TMC tomorrow; he is on no medication and discharge diagnosis is that on admission. Noted documentation Army enlistment medical history with documentation T+A 1974, ns/nc, eye left tear duct surgery 15 years ago, ns/nc, otherwise negative per record 9/27/85; there is also documentation per medical history 3/24/90 allergic to PCN otherwise no medical problems. I was not able to find any other medical examination records and or service records to indicate having had any complaints of heat injury complaints/seizure disorder complaints during service. Claimant was previously evaluated for seizure disorder as noted including per records dated 6/24/13 and 12/10/20 with diagnosis of absence seizures or petit mal or atonic seizures with having had symptoms of blanking out at times since 1994 or so. Claimant indicates several days after he was discharged from hospital in 1990 he had EEG performed, and since the 1990s he had developed blanking moments and sometimes had acted like zombie and would not respon[d], was eventually diagnosed as having petit mal seizure; also states he had 5 grand mal seizures and at least at one time witnessed while at home but was never evaluated for those grand mal seizures; records reviewed revealed no objective documented evidence to indicate having had grand mal seizure or generalized tonic clonic seizures. Without a specific past neurological documentation for review regarding claimant's onset of seizures, full work up and progression of claimant's seizure disorder, including evidence of having had developed chronic heat stroke sequelae, the claimant's lightheadedness in 1994 and sensation of mind fading during periods of heat in April 1995 which were not diagnosed nor treated on records reviewed are of no very limited clinical significance at this time. There is currently no evidence on records reviewed to indicate having had full thorough work up of his seizure etiology; the etiology remains unclear from records reviewed, and there is currently insufficient objective documented evidence to associate claimant's seizure disorder to his service. It is my opinion, claimant's seizure disorder and or current residual of in-service heat injury (no pathology of such condition to render a diagnosis) is LESS likely had its onset during his active service, or is otherwise etiologically related to such service. While there has been some back and forth between the various medical professionals regarding when the Veteran first received a diagnosis of a seizure disorder, it nevertheless reflects that he currently has one, so the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). A review of the Veteran's military personnel records (MPRs) shows that he was neither deployed during the Gulf War nor engaged in painting with CARCs. They reveal that he has been stationed in Washington, Iowa, Aberdeen, Maryland, Fort Dix, New Jersey, and St. Paul, Minnesota. His occupation was Vehicle Wheel Repair. Thus, as there is no evidence that the Veteran served overseas in the Persian Gulf War or that he was exposed to CARCs, the Board finds that the second element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Even assuming that the Veteran was exposed to CARCs, however, the medical evidence of record fails to establish the third element. As the June 2013 VA examiner noted, research from the CDC, NIOSH, and OSHA related only deliberate inhalation of CARCs to brain lesions, pre-senile dementia, polyneuropathy, motor control/equilibrium issues and vision problemsnot seizure disabilities. Thus, there is no medical basis to concluded that, even if the Veteran had been exposed to CARCs, it would have caused his seizure disability. While the Veteran may believe that his (alleged) exposure to CARCs cause his seizure disability, he is not competent to render such a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As the only competent and credible medical opinion of record, uncontradicted by any other competent and credible evidence, the Board affords the June 2013 VA opinion considerable probative value on appeal. Thus, the third element of service connection for this theory has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Turning to the Veteran's theory that his in-service heat exhaustion caused his seizure disability, the Board finds that the second element has been established, as the STRs clearly document this incident. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Regarding the third element, the evidence weighs against the Veteran. The July 2021 examiner adequately explained that, without past neurological documentation of the Veteran's onset of seizures and full work up and progression of his seizure disability, his lightheadedness in 1994 and sensation of mind fading during periods of heat in April 1995 are of very limited clinical significance. In the examiner's words, "the etiology remains unclear from [the] records reviewed, and there is currently insufficient objective documented evidence to associate claimant's seizure disorder to his service." Again, the Veteran may sincerely believe his incident of heat exhaustion cause his current seizure disability, but he is not competent to offer that opinion. See Jandreau, 492 F. 3d at 1377. In the absence of any other competent and credible medical opinion on which the Board can rely, it affords the July 2021 opinion considerable probative value on appeal. Thus, the third element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Veteran's claim for entitlement to service connection for a seizure disability, the Veteran's appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). 2. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS), abdominal hernias, residuals of surgery for a perforated colon, scar tissue of the colon, and bladder problems, is denied. Throughout the course of this appeal, the Veteran alleges several theories of entitlement to an overarching gastrointestinal/urinary tract disability. He avers that his heatstroke incident caused them, see June 1, 2012, VA Form 21-4138, and also claims that they are secondary to an in-service back injury or to medication he received after in-service dental procedures, see Dec. 14, 2012, Congressional Correspondence. In its most recent Decision, the Board instructed the AOJ to secure opinions that answered whether the Veteran's current conditions are related to those various theories, as well as whether any period of service aggravated any of the Veteran's gastrointestinal problems. The Board recognizes that the Veteran has been diagnosed with IBS; perforated diverticulitis with phlegmon, status post colectomy; urinary incontinence associated with bladder neuropathy of unclear etiology; restriction of the large intestine; and a ventral hernia. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The Board also recognizes that the Veteran while in service experienced heat stroke, took medication after his dental surgery, and complained of a back injury. Thus, the second element for service connection for his theories also have been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). This claim, however, fails for lack of satisfying the third element of service connection. As to the Veteran's allegation of scar tissue of the colon, the July 2021 examiner stated that the Veteran does not have any complaint specific to scar tissue of the colon; in addition, there is no objective documented evidence of having any scar tissue of the colon and or a diagnosis of scar tissue of the colon on current records reviewed; hence there is no pathology to render a diagnosis. As to the issue of aggravation for the multiple periods of service: Records reviewed revealed claimant was in service in the Army between 1/10/91 to 6/27/91 per rating decision 1/19/21, and DD Form 214. I was not able to find DD Form 214 for previous service in the Army. I was also not able to find documentations during claimant's period of ACDUTRA from July 7, 1990 to July 21, 1990, or active duty from January 1991 to July 1991. Noted Quad medical history 3/24/90 documenting allergic to PCN otherwise no medical problems, no mention of any gastrointestinal complaints/condition; noted hospitalization record 3/5/91 to 3/7/91 for impacted teeth #1, 6, 11, 16, 32; surgical removal teeth #1, 6, 11, 16, 32; placement of palatal stent uncomplicated, treated with motrin and Tylox. There was no mention of any gastrointestinal complaints/condition. There is no evidence to indicate having had any gastro-intestinal condition/complaints during the ACDUTRA and active service. Based on available records reviewed at this time, it is my opinion, it is LESS likely as not that the claimant's gastrointestinal disorder (not found on records reviewed) was aggravated (permanent increase in severity beyond normal progression) by the above-mentioned periods of ACDUTRA and active service. As to the Veteran's urinary incontinence: Claimant reports he had developed urinary incontinence since the 1990s after a severe back injury in 1988, initially he had developed small leak complaints and was evaluated twice while in the service, eventually was diagnosed with urinary incontinence due to bladder neuropathy. I was not able to find any documented evidence to indicate having developed urinary complaints/condition associated with back injury in 1988 on the current records reviewed; noted medical history record dated 3/24/90 without any urinary complaints; claimant with urinary incontinence were noted many years since his service as noted per records including dated 4/18/12, 4/23/13, 6/13/13 and 5/2/13. Noted C&P examination dated 6/24/13 with urinary incontinence was determined as unknown etiology. There is currently insufficient objective documented evidence on records reviewed to associate claimant's urinary incontinence due to his service; the definitive etiology of claimant's bladder neuropathy remains unclear based on available records reviewed. It is my opinion, claimant's bladder condition (diagnosed as urinary incontinence associated with bladder neuropathy of unclear etiology) is LESS likely as not had its onset during his service, or is otherwise etiologically related to his service. For the complaints of IBS: Noted C&P Examination 6/13/13 with documentation no follow up complaints or visits for back pain are noted, and his physical dated 4/22/91 his examination was noted to be normal for all systems to include the spine. No complaints or visits related to any other claimed condition is seen in the military records. Claimant states that between 1989 heat stroke episode and was hospitalized for about 3-4 days, and he had no bowel movements for 3 weeks, and went multiple times for evaluation and finally had his bowel movement that was black and tarry; condition repeated again in 1990 from jaw procedure which was treated with Tylox and the medication had again caused black tarry stools; he had developed change in bowel habit and in work up revealed abnormal colon requiring colon resection; states he continues to have 4 or more lose bowel movements per day, and on psyllium twice a day, and dicyclomine once per day. Noted Quad medical history 3/24/90 documenting allergic to PCN otherwise no medical problems, no mention of any bowel movement complaints; noted hospitalization record 3/5/91 to 3/7/91 for impacted teeth #1, 6, 11, 16, 32; surgical removal teeth #1, 6, 11, 16, 32; placement of palatal stent uncomplicated treated with motrin and Tylox. I was also not able to find the records associated with having had developed any gastrointestinal complaints during service. I do not have any documented evidence on records reviewed to associate claimant's current gastrointestinal complaints to his service. Based on available records reviewed, it is my opinion, claimant's Irritable Bowel Syndrome IS LESS likely as not had its onset during his active service, or is otherwise etiologically related to such service. Regarding his hernias: Claimant states that between 1989 heat stroke episode and was hospitalized for about 3-4 days, and he had no bowel movements for 3 weeks, and went multiple times for evaluation and finally had his bowel movement that was black and tarry; condition repeated again in 1990 from jaw procedure which was treated with Tylox and the medication had again caused black tarry stools; he had developed change in bowel habit and in work up revealed abnormal colon requiring colon resection, and since that time he had issues with abdominal hernias. Noted Quad medical history 3/24/90 documenting allergic to PCN otherwise no medical problems, no mention of any gastrointestinal/abdominal hernia complaints/condition. Noted hospitalization record 3/5/91 to 3/7/91 for impacted teeth, also had placement of palatal stent that was uncomplicated and claimant was treated with motrin and Tylox. I was also not able to find the records associated with having had developed any gastrointestinal complaints or abdominal hernia complaints during service. I do not have any documented evidence on records reviewed to associate claimant's current abdominal hernias to his service. Based on available records reviewed, it is my opinion, claimant's current abdominal hernias ARE LESS likely as not had its onset during his active service, or is otherwise etiologically related to such service. Lastly, concerning his dental surgery and injury to his back: Noted C&P Examination 6/13/13 with documentation no follow up complaints or visits for back pain are noted. In his physical dated 4/22/91 his examination was noted to be normal for all systems to include the spine. No complaints or visits related to any other claimed condition is seen in the military records. Noted Lay statement records 6/28/13 and letter 11/7/2012 regarding onset and continuity of his symptoms including his gastrointestinal disorder related to a 1988 truck accident were reviewed. Claimant states that between 1989 heat stroke episode and was hospitalized for about 3-4 days, and he had no bowel movements for 3 weeks, and went multiple times for evaluation and finally had his bowel movement that was black and tarry; condition repeated again in 1990 from jaw procedure which was treated with TYLOX and the medication had again caused black tarry stools; he had developed change in bowel habit and in work up revealed abnormal colon requiring colon resection; states he continues to have 4 or more lose bowel movements per day, and on psyllium twice a day, and dicyclomine once per day. I was not able to find any records associated with the truck accident in 1988, noted Quad medical history 3/24/90 documenting allergic to PCN otherwise no medical problems, no mention of truck accident nor any bowel movement complaints; noted hospitalization record 3/5/91 to 3/7/91 for impacted teeth #1, 6, 11, 16, 32; surgical removal teeth #1, 6, 11, 16, 32; placement of palatal stent uncomplicated, treated with motrin and Tylox. I was also not able to find the records associated with his bowel movement complaints due to Tylox. I do not have any documented evidence on records reviewed to associate claimant's gastrointestinal complaints to his service. Based on available records reviewed, it is my opinion, claimant's gastrointestinal disorder IS LESS likely as not caused by medication taken for the March 1991 dental surgery and subsequent infection, or related to truck accident in 1988. All the obtained medical opinions cut against the Veteran's various theories of entitlement. None of his gastrointestinal/urinary problems have been linked either to his in-service episode of heat stroke, a back injury, or the medication he received pursuant to dental procedures. While in some instances the examiner noted that he was unable to locate certain records, he nevertheless considered the Veteran's various lay statements and articulated theories of entitlement. While the Veteran himself may sincerely believe the various theories he advances, he is not a competent medical professional capable of rendering such a complex opinion. Jandreau v. Nicholson, 492 F.3d 1372, 137677 (Fed. Cir. 2007). Because the July 2021 opinions are uncontradicted by any other competent and credible evidence of record, the Board affords them considerable probative value on appeal. Thus, it finds that the third element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). As an ancillary matter, the Board notes that, to the extent the Veteran seeks compensation for a bladder condition as a neurological abnormality secondary to an in-service back injury, see 38 C.F.R. § 4.71a, DC 52355242, he currently is not service connected for a back injury. The Board, furthermore, currently does not have jurisdiction over such a claim. See Sellers v. Shinseki, 25 Vet. App. 265, 274 (2012) (holding that both a final, adverse decision by the RO and a claimant's proper, timely appeal are prerequisites to the Board's jurisdiction). Should the Veteran believe he is entitled to service connection for a back injury and, subsequently, any associated neurological impairments (to include a bladder disability) then he should file the appropriate paperwork with a RO. Because the evidence of record does not support the Veteran's claim for entitlement to service connection for a gastrointestinal or bladder disability, his appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.