Citation Nr: 21074477 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-08 500 DATE: December 15, 2021 ORDER Entitlement to service connection for a seizure disorder, to include as secondary to service-connected an acquired psychiatric disorder, alcohol use disorder, is granted. Entitlement to service connection for vertigo, to include as secondary to a service-connected seizure disorder, is granted. REMANDED Entitlement to service connection for Chronic Obstructive Pulmonary Disease (COPD) is remanded. FINDINGS OF FACT 1. Finding reasonable doubt for the Veteran, his seizure disorder is aggravated by his acquired psychiatric disorder, alcohol use disorder. 2. The Veteran's vertigo is aggravated by his seizure disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a seizure disorder due to an acquired psychiatric disorder, alcohol use disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for vertigo due to a seizure disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from March 1964 to February 1967 with service in Vietnam receiving the Vietnam Service Medal and National Defense Service Medal. See DD 214. This matter comes before the Board of Veterans' Appeals (BVA) on appeal of a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in December 2019 at a videoconference hearing; a transcript is of record. A May 2021 Board decision remanded this matter for new examinations that complied with remand directives and considered lay statements. See May 2021 Board Remand, pgs. 2-3. That development is complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 1 Vet. App. 439 (1995). To establish secondary service connection, there must be evidence of (1) a current disability, (2) a service-connected disability, and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). 1. Seizure disorder The Veteran contends that his seizure disorder is caused or aggravated by his service connected acquired psychiatric disorder, alcohol use disorder. Private examiners noted a seizure disorder. The examiner noted that in addition to the grand mal seizure in 2011, the Veteran experienced minor and major psychomotor seizures characterized by generalized tonic-clonic convulsions and episodes of unconsciousness during the appeal period. Private records note the seizure disorder. See Kaiser Permanente, Treatment Note, dated September 28, 2011. A January 2021 VA Examiner stated the Veteran does not have a seizure disorder as he was not placed on medications for it. See January 2021 VA Examination, pg.2. The record shows he was placed on Levetiracetam (Keppra)an anticonvulsant medication. See Keppra XR dose, PDR.Net, found at https://www.pdr.net/drug-summary/Keppra-XR-levetiracetam-2272.6059. He continued taking Keppra for years. See Traumatic Brain Injury Intake Assessment Notes, dated October 8, 2013. A July 2021 VA Examiner noted the Veteran's seizure disorder was due to alcohol but had no seizures since. See July 2021 VA Examination, pgs. 2-3. Thus, the Board finds a current disability. Regarding a nexus to service, the January 2021 examiner stated that his seizure disorder was not related to service. A July 2021 VA examiner stated that the seizure disorder was due to alcohol use. Private records indicate that his seizures were due to an alcohol use disorder. See September 2011 Kaiser Permanente Note. The Board notes that the Veteran is currently service connected for an acquired psychiatric disorder. The Veteran stated that his alcohol use disorder was due to his acquired psychiatric disorder. A private medical opinion linked his alcohol use disorder to his acquired psychiatric disorder, in that he self-medicated for many years with alcohol. A March 2019 VA examiner found his alcohol use disorder was a mental disorder related to his posttraumatic stress disorder (PTSD), acquired psychiatric disorder. The Board finds the record is in relative equipoise as to whether a seizure disorder was proximately due to or aggravated by his acquired psychiatric disorders, to include alcohol use disorder. The positive and negative evidence is in relative equipoise, and the Board finds that the Veteran's seizure disorder is proximately due to or or aggravated by his service-connected acquired psychiatric disorder with alcohol use disorder. The claim is granted. 2. Vertigo The Veteran contends that his vertigo is related to a service-connected disability. An April 2020 Board decision remanded this issue for a new examination to clarify whether there is a relationship between his acquired psychiatric disorder, seizure disorder and his vertigo, namely whether his mental health disorders, and or the medications used in the treatment thereof, worsen his vertigo. A July 2021 VA examiner concluded that the Veteran's vertigo disorder is at least as likely as not aggravated beyond its natural progression by his seizure disorder. As noted in this decision, his seizure disorder is now service connected to his acquired psychiatric disorders, to include alcohol use disorder. Therefore, the Board finds that the preponderance of the evidence is not against a finding that his vertigo is aggravated by his now-service connected seizure disorder. The claim is granted. REASONS FOR REMAND 1. COPD The Veteran contends that his COPD was caused exposure to herbicides and has submitted literature which suggests a possible relationship. In May 2017, the Veteran submitted two private medical opinions relating his COPD to burn pit and herbicide exposure, but the opinions lacked a rationale. However, the Board found adequate evidence to remand the matter for a VA examination under McClendon v. Nicholson, 20 Vet. App. 79 (2006). A January 2021 VA examiner opined that the Veteran does not have a COPD diagnosis, although the prior Board remand found private treatment records noted a diagnosis of COPD and treatment with Symbicort. For this reason, the Board remanded the matter for a new examination with a new examiner. A July 2021 VA examiner noted Pulmonary Function Test (PFT) results indicate no respiratory disease. See July 2021 Respiratory DBQ, pg. 8; see also PFT Report, dated July 13, 2021 (noting normal lung function). Chest X-rays show that the Veteran's lungs were clear of infiltrates, pulmonary nodules, masses and effusions. See Respiratory DBQ, pg. 8; see also Chest Xray Report, dated July 13, 2021. The examiner concluded that the Veteran's condition does not require corticosteroids, inhalers, bronchodilators, antibiotics, or oxygen. See July 2021 Respiratory DBQ, pg. 3. The examiner noted that pre-bronchodilator testing showed FVC of 90% predicted, FEV-1 at 95% predicted, and FEV-1/FVC at 75% predicted. The examiner noted that post-bronchodilator testing showed an increase in FVC of 4%, an increase in FEV-1 to 104% predicted, and FEV-1/FVC of 78%. See id. at pg. 9. However, the July 2021 VA examiner stated the Veteran did not currently have, nor has ever been treated for a respiratory disease. As the Board previously noted, a February 2017 private treatment record noted possible COPD. Private records indicated a history of COPD and complaints of shortness of breath. See Face Sheet, Centura Health, pg. 48, dated February 22, 2017; received April 2021. Dr. D.T. noted a complaint of shortness of breath, even with an inhaler, and that prior testing suggested asthma, adding that coronary artery disease needs to be ruled out. A Cardiology Stress Test was recommended. See Clinic Note, Centura Health, dated February 11, 2017. Prior notes indicate a past diagnosis of asthma/COPD, using Symbicort as needed, noting "he rarely has to take it." Id., at History of Present Illness, dated March 3, 2014. Other notes indicate a shortness of breath possibly due to sleep apnea. See Visit Summary, Castle Rock Medical Clinic, dated February 27, 2013, received September 2019. Thus, it remains unclear whether the Veteran has or had a diagnosis of COPD during the period on appeal. Further, the most recent examiner indicated that the Veteran never had a respiratory disease. As he was evaluated for shortness of breath in 2017, ruling out COPD or asthma, using an inhaler on an as needed basis, albeit rarely. For these reasons a remand is needed for an addendum opinion to address whether the Veteran has, or had, a respiratory disorder, to include COPD or asthma, during the course of this appeal. Accordingly, the matter is REMANDED for the following action: 1. Obtain a VA medical opinion regarding the etiology of the Veteran's claimed respiratory disorder, COPD, and/or asthma. The need for an in-person examination is left to the examiner. After reviewing the claims file, including this remand, the examiner should: (a) Please clarify the Veteran's diagnosis. The examiner should indicate whether the Veteran currently has, or has had, a respiratory disorder diagnosis at any time during the period on appeal. (b) If a finding is made that the Veteran does NOT currently have, OR HAD, a respiratory disorder, please reconcile this finding with March 2014 and February 2017 Centura Health private medical records. (c) If any respiratory disorder is confirmed for any period on appeal, please opine as to each disorder whether: i) It is at least as likely as not related to service; ii) It is at least as likely as not related to herbicide exposure, exposure to burn pits, or is otherwise related to service. The examiner must provide a complete rationale for each opinion. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.