Citation Nr: A21020519 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210305-145163 DATE: December 27, 2021 ORDER Entitlement to service connection for a seizure disorder is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, the record evidence suggests that his seizure disorder is at least as likely as not related to active service. CONCLUSION OF LAW The criteria for service connection for a seizure disorder are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1969 to January 1974. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas. In June 2009, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. In August 2009, the Board reopened and denied the Veteran's claim of service connection on the merits. He appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in a March 2011 Memorandum Decision. In September 2011, the Board again reopened and denied the claim on the merits. The Veteran again appealed to the Court which again vacated the decision in a February 2012 order granting a Joint Motion for Partial Remand. The case was then remanded by the Board in December 2012 and February 2016 for additional development. In February 2018, the Board again denied service connection on the merits. The Veteran again appealed to the Court which vacated the denial in a January 2019 order granting a Joint Motion for Remand (JMR). The case was then remanded by the Board in September 2019 in accordance with the directives of the JMR. In March 2021, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) in response to a September 2020 RO rating decision and selected the evidence submission lane. This decision has been written consistent with the new Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), Pub. Law 115-55, framework. Based on the Veteran's evidence review lane selection, evidence considered in this decision includes evidence of record at the time of the September 2020 rating decision and evidence received within 90 days of the Board's receipt of the March 2021 VA Form 10182. The Veteran contends that he had a pre-existing seizure disorder which was aggravated by his active service. He also presented evidence to suggest that he his pre-service symptoms were not a manifestation of a seizure disorder, but a distinct disorder, and his current seizure disorder first was manifested during active service. A review of the Veteran's service treatment records reveals that his enlistment report of medical examination in April 1969 noted that a neurological examination was conducted in addition to the standard clinical evaluation, following which an impression of vasovagal syncope was recorded but convulsions were not diagnosed. The accompanying November 1969 neurological examination consultation report discloses the Veteran reported fainting spells since the age of 10, which were preceded by stomach aches, dizziness, and falling. Sweating and pallor was associated with these spells. Witnesses noted that during a spell he would fall to the ground, lay quietly, and get up normally. He experienced fainting spells one to two times per month. The consulting physician indicated that he received treatment at the S.L.T.C. Hospital in October 1961 for this condition which included medication. The consulting physician also noted that he had not received any treatment for at least the preceding six years. The impression was probable vasovagal syncope without enough evidence to consider the possibility of a convulsive disorder. In an April 1970 Clinical Record Narrative Summary, the Veteran reported becoming lightheaded and blacking out the day prior while he was purchasing food after finishing a class. Following the episode his tongue was sore and he noticed his trousers were wet. Since that episode he had been suffering from a slight frontal headache. He explained these episodes occurred since he was six years old and occurred between one and nine times every three months. He was hospitalized from April 7, 1970, to May 1, 1970. During the course of his hospitalization, no evidence of seizure activity or unconscious episodes was found. In a November 1973 Consultation Sheet, the Veteran reported a history of losing consciousness since the age of seven. The treatment provider noted that, despite numerous work ups before and during service, the Veteran had yet to be diagnosed. The Veteran indicated that, prior to passing out, he would begin to feel dizzy and saliva would run out from under his tongue. He would lose consciousness for about five minutes and awaken disoriented for another five minutes. He had between three to four spells per year. He had a right frontal healing hematoma sustained as a result of the episode. The impression was probable seizure disorder which was untreated, uncontrolled, and uncommon. Following service, during a July 1991 VA examination, the Veteran indicated that his seizure disorder began in childhood around nine years of age and remained unchanged since that time. He described his seizures as preceded by excessive salivation and dizziness. He would lose consciousness and experience generalized chronic tonic movements in all extremities. Thereafter, he would remain lethargic. The diagnosis was idiopathic generalized seizure disorder. A June 2008 VA examination report shows that the Veteran relayed that his seizure disorder began when he was seven or eight years of age and in 1961 he started on anti-epileptic medication. He explained that his seizures were preceded by excessive salivation and dizziness. He would lose consciousness and experience tonic-clonic activity. Upon regaining consciousness, he would be disoriented and confused for two hours. In a December 2008 addendum, the VA examiner opined there was no definitive evidence that the Veteran's seizure disorder was aggravated beyond its natural progression during service. The June 2008 VA examiner offered another addendum opinion in June 2017. The examiner determined the baseline frequency of the Veteran's seizure disorder was between one and nine times every three months in view of the April 1970 Clinical Record Narrative Summary. The VA examiner found no evidence of any specific events or exposures related to service that would likely increase the frequency of seizures with the exception of his history of substance abuse which was thought to complicate the assessment because it could trigger seizures unrelated to the disorder itself. Nonetheless, the examiner found no evidence demonstrating the frequency of the Veteran's seizures increased above the baseline in service; thus, there was no evidence that the seizure disorder was aggravated beyond its natural progression in service. A VA examination report dated in November 2019 shows that the Veteran was diagnosed with tonic-clonic seizures or grand mal epilepsy. The examiner explained that the Veteran's service records did not mention a documented seizure episode while in service but instead only mentioned a history of seizure. The examiner opined that, based on a review of the record, the seizure disorder was not aggravated beyond its natural progression by in service illness, event, or injury. The examiner added that the records were insufficient to establish a baseline of his seizure disorder and childhood medical records were not available to review. There was no documented episode of seizure activity while in service; therefore, it was not possible to comment on the severity of the condition. In an addendum to the November 2019 VA examination report dated in August 2020, the examiner reiterated the foregoing opinion and added that the claimed condition clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. A private medical opinion from M. B. S., M.D., dated in December 2020 (and received along with the March 2021 VA Form 10182) shows that the Veteran's entire medical history was reviewed. Dr. S. explained that the Veteran had a history of vasovagal syncope prior to entering service as documented in his April 18, 1969, Entrance Examination. Vasovagal syncope was a vascular event whereby the cholinergic system overrides the normal baroreceptor response and patients transiently drop their blood pressure or "pass-out" (in lay terms) and immediately recover with no neurologic damage. There also is no loss of bowel or bladder function. Simply stated, the above activity does not consist of any seizure activity which implicates neurological involvement. Since vasovagal events do not involve neurologic activity, vasovagal events have absolutely nothing to do with seizure disorders. The Veteran, on the other hand, had for the very first time a textbook classic neuromediated seizure disorder while in service. He suffered a loss of consciousness which did not immediately resolve when he "went down on the floor." This characteristic is precisely one of the many presentations that distinguishes cardiovascular syncope from neurological seizure disorders. He exhibited loss of consciousness and bowel and bladder loss which is indicative of a neurologic event and not a cardiovascular event. Further, the fact that he also exhibited neuro-spastic movements further supports the existence of a classic full-blown neurologic seizure and not a cardiovascular event. The fact that he lost control of both bowel and bladder is indicative of both higher and spinal cord dysfunction related to a classic neurological seizure. This is an entirely different animal from a vasovagal event. He experienced multiple other episodes in service all consistent with a classic seizure disorder and there is no doubt that the first full exhibition of his current seizure activity at least as likely as not began while he was in service. Dr. S. stated that, while the record contained some mention of pre-service vasovagal syncope-related events, in his professional opinion the symptoms demonstrated during the Veteran's service were far more severe than those described as occurring pre-service. In addressing the June 2017, November 2019, and August 2020 VA medical opinions, Dr. S. stated that the examiners clearly were unaware that over 75 percent of seizure disorders are idiopathic, i.e., have no proven etiology and the etiology of their seizures will never be proven. Therefore, stating that the Veteran's time in service did or did not contribute to his seizure disorder, and more precisely stating that it did not, is a medically illiterate statement. What can be stated is that he clearly exhibited his first signs of seizure activity while in service and these were generalized seizures, i.e., the most severe involving almost certainly both cortical lobes. The symmetric "jerking of extremities," the rapid repetitive motor activity, the sudden loss of postural tone, the eye flickers, and the general eye staring involving no meaningful eye contact in the absence of an extremely high fever, a major drug reaction, or major metabolic disorder is textbook classic seizure activity. Given the above, Dr. S. opined that it is much more likely than not that the Veteran experienced his first true seizure while in service, continued to experience same while in service, and his ongoing difficulties with his seizures are clearly related to those same in-service seizures. Having reviewed the record evidence, the Board finds that the Veteran's entrance examination report does not establish that he had a seizure disorder at the time of his entrance on to active service. Instead, an impression of vasovagal syncope was recorded. In the November 1969 neurological evaluation, the impression again was probable vasovagal syncope without enough evidence to consider the possibility of a convulsive disorder. Moreover, the December 2020 opinion of Dr. S. specifically establishes that the Veteran did not have a seizure disorder prior to service but rather vasovagal syncope which was described to be a vascular (and not a neurological) event. Therefore, the Board must conclude that a pre-existing seizure disorder was not noted at service entry and the evidence is not clear and unmistakable that a seizure disorder existed prior to service. As a result, the presumption of soundness under 38 U.S.C. § 1111 cannot be rebutted. As the Veteran now is presumed sound upon service entrance, the question before the Board becomes whether the current seizure disorder is related to service. On this question there are opinions supporting and going against the claim. The Board finds that the opinion of Dr. S. is the most probative as it was definitive, based upon a complete review of the Veteran's entire medical history, and supported by detailed rationale. Accordingly, the opinion from Dr. S., which considered the opinions of the VA examiners and provided reasons as to why they are less probative, carries significant weight on the issue of whether the current seizure disorder is related to service. Moreover, with regard to the credibility of the Veteran's statements, there is no information in the claims file which calls into question these statements about the severity of symptoms which he experienced before, during, and after service. While every detail of the Veteran's description has not been corroborated, there is nothing in the record which specifically contradicts him. Therefore, the Board concludes that the Veteran's description of his symptoms prior to, during, and since service are credible. As such, the Board concludes the evidence is, at the very least, in relative equipoise as to whether the Veteran's current seizure disorder arose during active service. In summary, and after resolving any doubt in favor of the Veteran, the Board finds that service connection for a seizure disorder is warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Orfanoudis, 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.