Citation Nr: 21021090 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 17-13 538 DATE: April 9, 2021 ORDER Entitlement to service connection for residuals of a head injury to include seizures is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s residuals of a head injury to include seizures is related to the Veteran’s active duty service. CONCLUSION OF LAW The criteria for service connection for residuals of a head injury to include seizure, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Army from June 1982 to October 1982. This matter is on appeal from a November 2015 rating decision. The Veteran was afforded a March 2020 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in May 2020 for additional development. Service Connection Service connection is granted on a direct basis when there is 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. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Residuals of a head injury to include seizures The Veteran asserts his residuals of a head injury to include seizures is related to his active duty service. Review of the medical treatment record shows the Veteran receiving treatment and diagnoses for seizures. Examiners at an August 2019 and July 2020 VA examination diagnosed the Veteran with complex partial seizure. As such, the Board finds the Veteran with a current disability. Review of the Veteran’s service treatment record (STRs) does not show any complaints, treatments or diagnoses relating to a head injury or residuals of a head injury. Review of the May 1982 enlistment examination shows the Veteran was 20 years old at the time of enlistment. The Veteran reported an injury to his right eye in 1978 when he was struck with a baseball that resulted in no residual issues or problems. The Board notes in September 1982 the Veteran was seen for treatment of a right shoulder injury while playing football. The Veteran was given a 6-week profile and instructed to return to clinic in October for followup. Review of the record shows the Veteran elected to waive his separation examination. In April 1984 the Veteran was seen for complaints of off and on pain in the right shoulder. The treating provider noted the Veteran injured his shoulder in 1982 in service and reported that it had never been reduced. In a June 1992 VA examination to evaluate the right shoulder and neck, the Veteran reported in 1987 there was a fire; while trying help a lady from the second floor, the Veteran stated that he asked the lady to jump and she landed on his chest and knocked him unconscious, resulting in neck pain. The Veteran did not complain of headaches at this examination. In October 1995 the Veteran was seen following a motor vehicle accident. The Veteran reported loss of consciousness and pain in the back of his head and neck. A September 1998 MRI of the Veteran’s skull found no abnormalities. In March 2010 the treating provider noted the Veteran had no evidence of stroke or seizure. In August 2011 the Veteran complained of poor memory, headaches and depression. In a May 2012 neuro consultation, the treating provider noted the Veteran complained of memory loss and first noted issues in 2007 when the Veteran experienced loss of consciousness at work. The provider noted the Veteran with a prior history of head trauma to include boxing, football, and a car accident. In January 2013 the treating provider noted the Veteran was last seen in October 2012 with neurology where he was diagnosed with complex partial seizure. In an August 2014 statement, the Veteran stated he was injured in August 1982 during basic training and was told he had a concussion and separated shoulder. The Veteran stated that he was put back into formation but unable to complete his assignments. The Veteran next stated that he went AWOL but returned and did his punishment and “kept up for 2 to 3 weeks” until his right shoulder gave out and he was hospitalized for shoulder, neck and back issues. The Veteran stated that upon his return from the hospital his company had “moved on” and in a few months he was sent home. In a December 2014 VA homeless program note, the treating provider noted the Veteran with multiple health issues stemming rom a shoulder injury during service. The provider noted the Veteran reported participating in the Army boxing and football teams “while stationed in Germany”. The Board notes that the Veteran in September 2015 made a handwritten edit to this note indicating that he never went overseas. The provider also noted the Veteran with a diagnosis of complex partial seizure with impairment of consciousness. The Veteran in September 2015 also made a handwritten edit noting this as “head trauma!! Noted in 1983 at VAMC in Memphis, Tennessee.” In a September 2015 statement, the Veteran asserted he was injured in basic training. The Veteran stated “I never played any sports in the Army. Absolutely none.” In a December 2015 notice of disagreement (NOD), the Veteran stated that he was injured playing football when he was hit by another soldier’s forearm and had to be taken out of the game. The Veteran stated that his officers told him to continue and that he would become better and tough; however, the Veteran stated that instead he began having memory and headache problems. The Veteran stated that he had told his superiors and others but was told “not to be a wimp and disloyal.” In an April 2016 VA examination for mental disorders, the examiner found no evidence of a traumatic brain injury (TBI). The Veteran reported a series of jobs following hie separation from service to include playing on a professional football practice squad in the 1990s. The Veteran reported a “whiplash” injury from chasing an armadillo that came into the barracks and running into a pole. The examiner noted review of the record showed the Veteran’s STRs documenting a right shoulder injury related to touch football; however, the Veteran “denied ever seeing these documents…strongly denied that his injury could possibly be related to football.” The Veteran reported a long history of migraine headaches and seizures that began after his military service. The Veteran also stated that after his separation from service and “doing some travel and work”, he began using alcohol and drugs to include cocaine, with heavy use for 2 years. The Veteran stated that this use was primarily related to poor social contacts but also noted that it was “partially influenced” by efforts to reduce the impact of headaches and migraines, which he asserted was a long-standing problem that developed right after his service. The examiner noted the Veteran “adamantly indicated that he did not injury his shoulder playing football, and instead strongly indicated a preference for [the examiner] to note that he injured his shoulder while chasing an armadillo that came into the barracks at night.” The examiner also remarked the Veteran’s self-report was inconsistent and the Veteran contradicted himself at times. In December 2016 the Veteran stated that his neck and head injury occurred at the same time as his right shoulder injury. In an August 2019 VA examination for mental disorders, the examiner did not find evidence of TBI. The Veteran reported while playing football in the yard he was hit in the head and his shoulder was “destroyed” along with being “hit by five people.” The Veteran stated that he went AWOL, came back, and was later medically discharged from the military as “I did not want to be a failure.” In an August 2019 VA examination for the central nervous system, the Veteran was diagnosed with complex partial seizure. The Veteran reported the onset of his condition in 2009 where he “fell into a mirror at home in the bathroom”, was hospitalized and diagnosed with complex partial seizure. The Veteran stated he was prescribed medication and did not experience symptoms until 2012 when he experienced seizures again. The Veteran denied TBI but stated he was hit in the head with a football in service but did not experience seizures. The Veteran stated that he has had history of severe migraines that were not treated “due to pride.” The examiner did not provide and etiology opinion. At the March 2020 hearing, the Veteran testified that his injury occurred in basic training where during a game of football the Veteran “got my bell rung…fell forward…of course a bunch of guys land on top of you.” The Veteran stated that prior to this he did not have any injury but when this occurred “I just couldn’t shake it off. I had a headache.” The Veteran stated that when he was taken in, they found that he had suffered a significant injury to his shoulder, “then the test process, I did continue on…and from there I couldn’t shake the effects of it.” The Veteran stated that he was told that he had lost consciousness at the time. The Veteran testified that when he returned home in November, his mother “noticed that my eye was twitching” and his father took him in for treatment with VA in January 1983. The Veteran stated that he had been receiving treatment ever since. The Veteran also indicated that a doctor told him “you got the bill wrong…you got a concussion.” When asked when the seizures began, the Veteran stated that “something happened in December” where his mother observed him sleeping with one eye not closed. The Veteran stated that he was taken to the hospital when he was 19 and they discovered that he had “a concussion, a ball winger.” The Veteran stated that his first vomiting event occurred right after his twentieth birthday in February 1983 which he asserts came “out of nowhere… didn’t have any alcohol or drugs in me.” The Veteran stated that he wanted to go back to school and play college ball, but he was unable to pass the physical due to neck, head, and shoulder injuries. The Veteran also indicated that in the 1990s he began having issues with eye twitching and stated that he now has issues where his head swells. The Veteran was afforded a July 2020 VA examination. The examiner opined that after review of all medical records, the Veteran’s residuals of a head injury to include seizures was not related to his active duty service. The examiner stated that there was no credible medical evidence of a causal link between a head injury and the onset of a seizure disorder 30 years later. The examiner referenced several research studies that found “post-traumatic seizure disorders are defined by occurrence within one week of head trauma” and indicated the most common cause of seizure disorder was a brain abnormality. The Board notes that neither the Veteran nor his representative have provided a medical opinion to contradict the conclusions of the July 2020 VA examiner. The Board notes the Veteran has been afforded opportunities to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107 (a) (it is the claimant’s responsibility to support a claim for VA benefits). As such, there is no competent medical evidence to establish a nexus between the Veteran’s claimed residuals of a head injury to include seizures and any documented event or incident in service. The Board also noted that in December 2020 the Veteran’s representative challenged the adequacy of the July 2020 VA examination stating the examiner was not a qualified specialist to opine on the etiology of the Veteran’s claimed residuals of a head injury to include seizures. The Board notes that VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician’s assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician’s assistant was competent to perform examination); Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses’ statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive). Further, the Board may assume a VA medical examiner is competent as part of the presumption of regularity that attaches to the actions of public officials. Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician’s qualifications during Board proceedings, absent a challenge by the Veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). The Board notes that the May 2020 Board remand did not request a specialist opinion on the etiology of the Veteran’s claimed issue. Review of the July 2020 opinion shows it was provided by a physician assistant. There is nothing in the opinion to suggest that the examiner was not qualified through lack of education, training, or experience to render an opinion regarding the Veteran’s residuals of a head injury to include seizures. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (holding that, in the absence of clear evidence to the contrary, VA medical examiners are presumed competent). The Veteran’s representative has also not provided any basis for the assertion that the examiner should have been conducted by specialist. As noted above, an examiner need only be “qualified through education, training, or experience to offer medical diagnoses, statements, or opinions,” and a specific specialist is not necessarily required. See Cox, 20 Vet. App. at 569. The July 2020 VA examination included an interview with the Veteran, as well as review of the record; the examiner indicated the existing medical evidence with the interview provided sufficient evidence to provide an opinion. As the July 2020 VA examiner provided a review and examination of the Veteran’s claims file, made references to pertinent past records and statements consistent with the evidence of record, the Board finds that the VA examination report and medical records documenting the nature and extent of his residuals of a head injury, to be adequate and the most probative evidence of record to evaluate the etiology of the Veteran’s claimed issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran’s assertions that his residuals of a head injury was related to his military service. Certainly, he is competent to describe experiencing symptoms. Indeed, treatment records corroborate at least to some extent the Veteran’s history of symptoms. Nevertheless, a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the January 2020 VA examiner considered the in-service report and the Veteran’s report of symptomatology. The examiner still found that it was unlikely that his in-service injury was related to any current disability. The Board finds that the Veteran’s opinion is outweighed by the competent opinions of the VA examiner. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Furthermore, the Board notes that review of the claims record show several inconsistencies in the Veteran’s reported history and symptoms of his claimed disability. Such inconsistencies include the Veteran’s statements and testimony that he was hit in the head and sustained a concussion while playing football conflicting with his September 2015 statement denying playing sports in service and April 2016 statement reporting an injury from running into a post while chasing an armadillo; the Veteran testifying in March 2020 that his seizures began shortly after service conflicting with an August 2019 statement from the Veteran that his seizures began in 2009. The Board notes the Veteran at his March 2020 testified that he experienced his first vomiting event shortly after his twentieth birthday on February 1983 and that he was taken to a hospital in December after his return home when he was 19. Review of the Veteran’s May 1982 enlistment shows the Veteran was 20 years old at the time of enlistment. The Board notes the Veteran testified that he was taken to VAMC in 1983 for treatment related to a head injury, however review of the record does not show any record of the visit and the closest medical record is an April 1984 visit for complaints of right shoulder pain with no mention of symptoms relating to a head injury. The Veteran has stated that he had headaches since service, however the Veteran has also indicated that he never sought treatment “due to pride”, and the Veteran’s inconsistent statements as addressed above undercut the credibility and probative weight given to the Veteran’s submitted statements. The Board also notes the Veteran at an August 2019 examination for mental disorders reported that he was medically discharged relating to his head and shoulder injury shortly after returning from a period going AWOL. Review of the military record shows in an October 1982 report, the officer noted the Veteran went AWOL in September 1982 due to an “alleged illness” of his mother; upon return the Veteran was noted to state that he felt he should be at home because of his mother’s sickness and no longer wanted to be part of the Army. The officer recommended a Chapter 11-character discharge as the Veteran’s “attitude and motivation do not meet the standards of the Army.” Given the inconsistencies of the statements made by the Veteran compared to the findings in the claims record, the Board affords the Veteran’s statements less probative weight and outweighed by VA examinations of record performed by professionals. As there have been no other probative medical opinions submitted in support of the Veteran’s claim, the July 2020 opinion is the only probative opinion of record addressing the etiology of the Veteran’s claimed issue. Base on review of the evidence of record, the Board finds the competent evidence of record is against a finding of service connection for the Veteran’s claimed residuals of a head injury to include seizures. Review of the Veteran’s STRs show no complaints, treatments or diagnoses relating to residuals of a head injury to include seizures. Review of the medical treatment record shows the earliest competent documentation relating to the Veteran’s claimed residuals of a head injury to include seizures was in 2011, many years from separation from service. A May 2012 neuro consultation noted the Veteran reported first experienced issues with memory including loss of consciousness in 2007; however, there are no records of this event associated with the claims record and it would still be many years after the Veteran’s separation from service. Significantly, the only medical opinion addressing the etiology of the residuals of a head injury to include seizures is the July 2020 examiner’s opinion. The July 2020 VA examiner considered the Veteran’s report of symptoms but provided analysis of the case record to support their opinion that the Veteran’s current residuals of a head injury was less likely than not incurred in or caused by the Veteran’s active duty service. As such, the Board finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran’s residuals of a head injury. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.