Citation Nr: 21023651 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-15 445 DATE: April 21, 2021 ORDER Entitlement to service connection for seizure disorder is denied. REMANDED Entitlement to service connection for anxiety is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as a result of military sexual trauma, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s seizure disorder began during active service or is otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for seizure disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from September 1984 to June 1989. This case is before the Board of Veterans’ Appeals (Board) from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Seizure disorder The Veteran claimed entitlement to service connection for seizure disorder without making specific contentions (3/02/2018 VA 21-526EZ, Fully Developed Claim). The Veteran’s post-service medical records confirm a current seizure disorder and that the Veteran is prescribed medication to control seizures (8/06/2020 CAPRI, pg. 1). The question for the Board is whether the Veteran’s current seizure disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment record do not reflect, nor has the Veteran contended, complaints of or treatment for seizures during service. While not dispositive, this weighs against the Veteran’s claim. Post-service medical records indicate the Veteran’s first seizure occurred in September 2017, approximately 28 years after active service. An extensive work up was conducted, but no reason for the seizure was found (3/19/2019 CAPRI, pg. 113). Nothing in the record suggests a relationship between the Veteran’s service and the 2017 seizure or any symptoms associated with the Veteran’s seizure disorder. The Board notes that a seizure disorder, as an organic disease of the nervous system, is a chronic disease under 38 C.F.R. § 3.309(a). In that regard, the Board has considered whether the evidence of record suggests the Veteran’s symptoms manifested to a compensable degree within the presumptive period or with chronicity or continuity of symptomatology since service. Because the evidence suggests the first occurrence of seizure disorder occurred 28 years after service, presumptive service connection or service connection based on chronicity or continuity of symptomatology is not warranted in this case. While the Veteran believes her seizure disorder is related to service, the preponderance of the evidence of record suggests no symptoms of any seizure disorder manifested until nearly three decades after service. Accordingly, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s seizures began during active service, manifested to a compensable degree within one year of service, or is otherwise related to an in-service injury, event, or disease. Accordingly, the Veteran’s claim of entitlement to service is denied. 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. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Entitlement to service connection for anxiety is remanded. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The Veteran has claimed service connection for her currently diagnosed anxiety and PTSD related to military sexual trauma (MST), in-service sexual harassment (8/24/2017 VA 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault). The Veteran has current diagnoses of PTSD, generalized anxiety disorder, and major depressive disorder per the DSM 5 (3/19/2019 CAPRI, pg. 2; 8/15/2018 CAPRI, pg. 2). June 2017 treatment notes reflect the Veteran’s subjective experience is sufficient for a positive screened for military sexual trauma (8/17/2017 CAPRI, pg. 15) and an August 2020 declaration from the Veteran’s spouse, attesting to changes in the Veteran during service is of record (10/29/2020 Third Party Correspondence, pg. 8). Although the Veteran has a current diagnosis of an acquired psychiatric disability, and evidence of record is suggestive of a military sexual assault, no VA examination or opinion on this claim has been provided. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board finds the low threshold of McLendon has been met and an examination is warranted on remand to address the etiology of the Veteran’s present disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any existing acquired psychiatric disorders. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner should address whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran’s PTSD is related to an in-service stressor, to include the Veteran’s described military sexual trauma, to include sexual harassment. For any diagnosed acquired psychiatric disorder other than PTSD based upon review of the service and post-service treatment records, the lay statements of record, and any examination findings, is it at least as likely as not (a 50 percent probability or higher) that the Veteran's acquired psychiatric disorder had its onset during service, or is otherwise related to active service. The examiner is reminded to consider the Veteran’s lay reports, and a reason must be provided if the Veteran’s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran’s contentions, the examiner should provide them. Moreover, the examiner should specifically consider in-service or post-service behavior changes, or changes in military performance reviews, that might be indicative of a sexual assault. (Continued on the next page)   The examiner should reconcile any conflicting medical evidence of record to the extent possible. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and explain why this is so, (e.g., whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.