Citation Nr: 21009991 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 00-08 967 DATE: February 23, 2021 ORDER Service connection for a seizure disorder is granted. (The issues of entitlement to service connection for residuals of a traumatic brain injury (TBI), right hand tremors, migraine headaches, a back disability, posttraumatic stress disorder (PTSD), and obstructive sleep apnea (OSA), as well as entitlement to an automobile allowance and special monthly compensation (SMC) based on the need for aid and attendance will be addressed in a separate decision.) FINDING OF FACT The Veteran’s current seizure disorder, to include grand mal epilepsy and pseudo seizures, is related to seizures the Veteran experienced during active duty service. See, e.g., Service Treatment Records (STRs) dated November 1971 (noting diagnoses of “epilepsy” and “seizure disorder”); August 2019 VA Examination (noting diagnoses of grand mal epilepsy and pseudo seizures). CONCLUSION OF LAW The criteria for service connection for a seizure disorder are met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran served on active duty in the Army from October 1971 to November 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. (Also on appeal are the issues of entitlement to service connection for residuals of a TBI, right hand tremors, migraine headaches, a back disability, PTSD, and OSA, as well as entitlement to an automobile allowance and SMC based on the need for aid and attendance. These issues were the subject of hearings held by two different Veterans Law Judges and therefore will be separately adjudicated by a panel of three judges. See 38 C.F.R. §§ 20.106, 20.604 (Every veterans law judge who holds a hearing on an issue shall participate in the final determination of the issue; no panel of judges shall consist of fewer than three members.)) The Board previously denied the claim for service connection for a seizure disorder in a January 2017 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2017 Order, the Court granted the parties’ joint motion for remand (JMR), vacating the Board’s January 2017 decision denying service connection for a seizure disorder on the grounds that the Board erred in relying on an inadequate April 2013 VA medical examination and opinion. The parties’ JMR stated that the April 2013 VA examination was inadequate because it failed to render an opinion as to whether the Veteran’s seizure disorder was aggravated during his active duty service, whether it was possible to demonstrate worsening during service, and/or what would constitute evidence of worsening. The JMR also stated that the examiner failed to explain the conclusion that “the only method to determine aggravation is by reviewing an EEG.” See September 2017 Court Order. The April 2013 VA examination stated that “No medical assessment can be made as to whether a pre-existing seizure disorder underwent an increase in severity” during active duty service. According to the JMR, the Board concluded from this opinion that “the examiner clearly stated that the preexisting seizure disorder was not aggravated by service.” See id. The Court remanded the issue with instructions either to seek a new VA examination and opinion or to seek clarification of the inadequate April 2013 VA examination and opinion. In compliance with the Court’s remand, the Board remanded the issue of entitlement to service connection for a seizure disorder in February 2018 to obtain a new medical nexus opinion, including a new VA examination, if indicated. The Veteran was afforded a new VA examination and nexus opinions in support of this claim in August 2019. Entitlement to Service Connection for a Seizure Disorder I. Presumption of Soundness Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For purposes of the element of in-service incurrence or aggravation of an injury or disease, veterans are presumed to have been in sound condition upon entry into service, except as to conditions noted on their entrance examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Where it applies, this presumption may only be rebutted by clear and unmistakable evidence that 1) a condition preexisted service and 2) was not aggravated by service. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). In this case, the Veteran’s seizure disorder was not noted on his entrance examination, although there is evidence that it pre-existed his active duty service. See September 1971 Enlistment Examination. Therefore, the Board considers whether there is clear and unmistakable evidence that his seizure disorder pre-existed service and was not aggravated thereby. For the reasons below, the Board finds that this high evidentiary standard is not met. The Veteran served for just under one month, during November 1971. Roughly halfway through this period, the Veteran reported a history of a seizure disorder dating back to his infancy. See November 1971 STR. A November 1971 medical board likewise noted a long history of a seizure disorder. Post service, the Veteran’s reported medical history has generally been consistent with his in-service reports. See, e.g., November 1999 Private Treatment Record (PTR); September 2002 VA Examination; April 2013 VA Examination; May 2017 Board Hearing. However, in the years just after service, some pieces of evidence are in tension with this history. At a May 1972 VA examination, the Veteran reported that “he was alright before induction.” Similarly, the Veteran’s family physician submitted a February 1973 statement indicating that the Veteran “was a healthy young man” and “has never complained of mental disturbances up to 1971.” Likewise, several other lay statements from 1973 attest that the Veteran was a physically and mentally healthy child. Finally, there is no medical evidence of record attesting to the Veteran’s pre-existing history of a seizure disorder. The earliest medical record attesting to his seizures dates from the Veteran’s active duty service. To summarize, although the Veteran has generally reported a history of a seizure disorder with its onset in childhood, there is no medical evidence of seizures pre-dating the Veteran’s service, and certain evidence from shortly after his discharge from service could be interpreted as weighing against the Veteran’s reported history. Therefore, because a case could be made that the Veteran’s seizures did not pre-date his service on the basis of these lay statements and the lack of any medical record, the Board finds that the Veteran’s reported medical history does not constitute undebatable evidence that the his seizure disorder pre-existed service. Accordingly, this evidence does not rebut the presumption, and the Board considers the Veteran to have been in sound condition upon entrance into service. (Because the Board finds that the evidence does not show clearly and unmistakably that the Veteran’s seizure disorder pre-existed service, the Board does not reach the question of whether it was aggravated by service. In order to rebut the presumption of soundness, both pre-existence and lack of aggravation must be shown by clear and unmistakable evidence. Since the former showing has not been made, there is no need to consider the latter.) II. Entitlement to Service Connection As noted above, the Veteran’s STRs reflect an in-service diagnosis of “seizure disorder.” The records also contain a diagnosis of epilepsy. See November 1971 STR. The Veteran’s current medical records similarly reflect diagnoses of both grand mal epilepsy and “pseudo seizures.” See, e.g., August 2019 VA Examination. The remaining question is whether the evidence indicates a nexus between the Veteran’s in-service and current seizure disorders. In the first place, even in the few instances in which the Veteran has appeared to suggest that his seizures did not pre-date his service, he has always maintained that they have been present from the time of his service onward. See, e.g., May 1972 VA Examination; September 2002 VA Examination; December 2020 Board Hearing. The Veteran is competent to report his own symptoms, and the Board finds him to be credible. Moreover, the Veteran’s contention of continuity is well supported by the medical record. Seizure symptoms are attested in the year following service, and again diagnosed beginning in 1995. See April 1972 VA Treatment Record (VATR); VA Examinations dated May 1972, July 1972; July 1995 VATR; November 1999 PTR; September 2002 VA Psychiatric Examination. Although the Veteran has been afforded three VA examinations and several medical nexus opinions throughout the claim period, there is no medical nexus opinion evidence in support of the Veteran’s claim. See VA Examinations dated September 2002, April 2013,August 2019 ; February 2020 VA Opinion Addendum. However, the Board finds that this fact does not weigh against the Veteran’s claim. No VA medical nexus opinion has addressed the question of direct service connection—only the question of whether the Veteran’s pre-existing seizure disorder was aggravated by service. Because the Board finds that the presumption of soundness has not been rebutted, the conclusions of these examinations and opinions are none to the point. (In addition, the April 2013 VA Examination and opinion has been found to be inadequate, as noted above.) In conclusion, although there is no medical nexus opinion evidence in support of the Veteran’s claim, the medical record nonetheless clearly reflects that his seizures have presented from the time of service to the present, as the Veteran himself reports. The record also reflects diagnoses of epilepsy both in service and currently, alongside similar and related diagnoses, such as “seizure disorder” and “pseudo seizures.” In light of this evidence, and presuming the Veteran to have been in sound condition upon entry into service, the Board finds that his current seizure disorder had its onset during his active duty service. Accordingly, service connection for a seizure disorder is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.