Citation Nr: 21010100 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-36 141 DATE: February 24, 2021 ORDER Entitlement to service connection for a neurological condition as secondary to service-connected diabetes mellitus is denied. FINDING OF FACT The Veteran has had individual seizures in 2012 and 2018 but does not have a diagnosed neurological condition. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological condition as secondary to service-connected diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to June 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of November 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in December 2013. The RO issued a statement of the case (SOC) in September 2015 and the Veteran’s timely appeal to the Board followed in October 2015. Because the Veteran initially requested a hearing, but later withdrew this request, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. See October 2015 VA Form 9; see also October 2017 VA Form 21-4138. The Board previously remanded the Veteran’s claim for a VA examination. See November 2018 Board Decision at 4-6. After reviewing the evidence of record, the Board finds that the RO has substantially complied with its remand directives and will therefore proceed to adjudicate the Veteran’s claim on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” Id. The Veteran asserts that he has a neurological condition as a result of his service-connected diabetes mellitus, including medication prescribed to control that condition. See December 2013 NOD at 3 (asserting that “I suffered with seizures due to my sugar level dropping[,] [then] I was prescribed medication that caused my seizures… the seizures came about because of the medication I was prescribed to regulate my sugar levels”). The record reflects that the Veteran has had seizures in September 2012 and October 2018. See October 2013 Medical Treatment Records at 30-34 (providing description of September 2012 seizure and neurological consultation notes); see also October 2018 Medical Treatment Records at 38 (providing inpatient treatment notes describing October 2018 seizure after hospitalization). In accordance with the Board’s previous remand directives, the Veteran underwent a VA examination on this issue in July 2019. The VA examiner found that the Veteran did not have a diagnosis of a neurological condition. See July 2019 VA Examination Report at 2. In reaching this conclusion, the VA examiner reviewed the Veteran’s medical history, including the seizure episodes discussed above. See id. However, the VA examiner distinguished these episodes from a chronic disability: [The] Veteran had a provoked seizure which is a single [seizure] that may occur as the result of trauma, low blood sugar (hypoglycemia), low blood sodium, high fever, or alcohol or drug abuse… This is a singular event and not a chronic medical condition… He had a provoked seizure in 2012 and a seizure like event in 2018. His EEG and CT are silent for any findings consistent with seizure activity. Even his medication use is optional. Thus, he does not have a seizure disorder[.] See July 2019 VA Medical Opinion at 3; see also October 2018 Medical Treatment notes (noting treating physician’s assessment that “[given] frequency of seizures[,] will leave decision to patient as to whether he wants to start antiseizure medication”). This conclusion is consistent with the findings of the attending physician who assessed the Veteran after his September 2012 episode: Most likely, the patient’s seizure was a provoked seizure. That is, he does not have epilepsy nor any cerebral lesion that could predispose him to seizures. Most likely, his seizure was provoked by hypoglycemia, made worse by medications that are known to lower the seizure [threshold] (venlafaxine and tramadol). Also, seizure [threshold] was probably further lowered by sleep deprivation and excessive caffeine intake… provided that the above conditions are avoided, it is unlikely that the patient will have further seizures. See October 2013 Medical Treatment Notes at 33. Whether the Veteran’s September 2012 and October 2018 seizures were manifestations of a separately-compensable neurological condition, as opposed to isolated symptoms of diabetes mellitus for which the Veteran is already compensated, is a determination requiring medical expertise. See 38 C.F.R. § 4.121 (providing that while lay testimony may be accepted for the frequency of seizure events, a diagnosis of a condition requires neurological observation); see also 38 C.F.R. § 4.119, Diagnostic Code 7913 (providing that the rating criteria for diabetes mellitus include “hypoglycemic reactions”). Neither the Veteran nor the Board is competent to make such determinations. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board therefore concludes that the first Shedden factor has not been met and that service connection for a separately-compensable neurological condition is not warranted. 38 C.F.R. §§ 3.303, 3.310. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran’s claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.