Citation Nr: 21023781 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 11-19 851 DATE: April 21, 2021 ORDER Entitlement to service connection for a seizure disorder, to include pseudoseizures, is denied. FINDING OF FACT Seizures, to include pseudoseizures, are not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a seizure disorder, to include pseudoseizures, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from January 1969 to August 1970, including service in the Republic of Vietnam. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2019 Order of the United States Court of Appeals for Veterans Claims (Veterans Court). The appeal originates from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran requested a Board hearing, but withdrew his request in writing (Record 09/09/2011). In a November 2018 decision, the Board denied this claim. The Veteran appealed that decision to the Veterans Court. In an October 2019 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s decision and remanded this issue back to the Board for additional development consistent with the Joint Motion. In November 2016, April 2020, and October 2020, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). VA has established a presumption of exposure to herbicide agents applicable to veterans who served in the Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). A disease covered by 38 U.S.C. § 1116 becoming manifest as specified in that section in a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service. 38 U.S.C. § 1116(a). A veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(b); 38 U.S.C. § 1116A (those who served in the 12-nautical-mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of herbicide exposure). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions § 3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a seizure disorder. The Veteran is seeking service connection for a seizure disorder on a direct service connection basis, as related to a loss of consciousness incident in service. He has also asserted that seizures are related to exposure herbicide agents. On February 27, 1969, the Veteran was treated after passing out while standing in formation. His temperature was 99.4 degrees. He reported abdominal pain and nausea. Physical examination was negative (Record 08/21/2015 at 15). A report of medical examination performed on August 24, 1970 (service separation) reveals normal findings for the head and all other bodily systems. The Veteran reported that he was in good health (Record 08/21/2015 at 7). Records from Madison Neurological indicate that the Veteran was evaluated from 2004 to 2007 for what were described as “probable pseudo seizure and headaches.” Neurological examinations were normal. EEGs showed no epileptic findings. The Veteran reported a history of shaking spells. He was prescribed medication, which was partially effective, but he still reported periods of loss of contact or “absence seizures.” He reported onset at age 24 (roughly 1974) (Record 01/08/2010). An acquaintance of the Veteran submitted a statement in January 2010 attesting to having witnessed a seizure in church. It was reported that, at times, the Veteran's seizures are not noticeable, as he appears to be in a daze (Record 01/19/2010). A May 7, 2010, VA Neurology Note reveals a history of “spells” with onset in 1976, after he got out of the Vietnam War. It was noted that he feels a shooting pain in the head, and the back of the neck gets hot. He feels jittery. He has quick head shakes with upper body shakes for 20-30 seconds with multiple episodes in clusters lasting for a total of 30 minutes. He is aware of his surrounding during these seizures. He also has staring spells, lasting for a couple seconds. They happen if he is bored. He has missed part of TV programs during these episodes. Neurological examination was normal. The assessment was concern for non-epileptic spells versus simple partial seizures (Record 12/08/2016 at 225). The Veteran was admitted to the VA Medical Center for seizure monitoring and observation in November 2010. A specialist’s opinion from a VA neurophysiologist was obtained in May 2018. The specialist noted that the first EEG for the Veteran’s “shaking episode” was normal. The next EEG was negative and showed no epileptic findings. Long-term EEG 2010/2011 reported non-epileptic spell events. Clinically, as per the notes from private neurologist, Dr. Boyer’s working diagnosis on September 23, 2004, on initial encounter was “partial complex seizures with some absence like episodes.” Over the course of follow-up and repeated re-evaluation and adjustment in treatment, the last note from April 18, 2007, reported the diagnosis as probable pseudoseizure and headaches. Also, as per the records he was tried on multiple different anti-epileptic drugs, which had to be changed or stopped due to side effects or not being effective with no therapeutic benefits. Based on these treatment records, the specialist opined that it is not at least as likely as not that the Veteran has seizure disorder that either began during or were caused by his military service. The fainting episode during formation in service as per records was described on February 27, 1969, was unrelated and clinically different than the “shaking episodes” in question and so has no relevance with a diagnosis of seizure. There is also no reported evidence of having seizures secondary to exposure to herbicide agents (Record 08/22/2018). The parties to the September 30, 2019, Joint Motion agreed that, while the Board determined that the criteria for service connection for a seizure disorder had not been met, it also noted evidence that the Veteran had experienced probable pseudo-seizures. The scope of a claim is not limited to a particular diagnosis. As such, remand was required for the Board to address whether the probable pseudo-seizures are contemplated within the claim for service connection for seizures and if so, whether further development or analysis is warranted in that regard (Record 10/21/2019). The Board remanded the claim in October 2020. A VA opinion obtained in May 2020 by a VA neurologist states that the Veteran does not have a diagnosis of seizure disorder. He has non-epileptic events (pseudoseizures) that are not at least as likely as not (50 percent or greater probability) incurred in or caused by the syncopal event (fainting while standing) during service. The current non-epileptic events can be related to many factors such as stress but are unrelated to a prior syncopal event (Record 05/21/2020). A VA opinion obtained in February 2021 states that the claimed seizure disorder is less likely than not incurred in or caused by the event and/or injury during service. The rationale was that medical record review did not reveal continuous ongoing medical treatment or aggravation of an acute or chronic seizure condition during time of discharge from active military service to present day. The medical incident that occurred in 1969 was secondary to heat exhaustion and not from neurologic seizure condition (Record 02/20/2021). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a seizure disorder, to include pseudoseizures, are not met. The Board initially finds that its remand instructions were substantially complied with. The RO obtained an addendum medical opinion a VA neurologist as to whether the Veteran had pseudoseizures during the appeal period, and if so, whether they had their onset during service or are otherwise related to it. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The evidence substantiates that the Veteran sustained a loss of consciousness during his service, while standing in formation. In addition, he is presumed to have been exposed to herbicide agents. The evidence also substantiates a current seizure disorder, variously diagnosed, to include pseudoseizures. Accordingly, two of the three elements necessary to establish service connection have been substantiated. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Saunders, 886 F.3d 1356 (2018) (a veteran seeking compensation under 38 C.F.R. § 3.303(a) must establish three elements). However, a preponderance of the evidence is against a relationship between the incident in service, or any other event or exposure in service, and the current disorder. Seizures and pseudoseizures are not among the presumptive chronic diseases, or among the diseases presumed to be associated with exposure to herbicide agents. Accordingly, service connection may not be presumed. The lack of any identification of seizure activity or suspected seizures in service, and the normal clinical examination at service separation, is probative evidence against the incurrence of a seizure disorder in service. This is supported by the Veteran's report on neurological evaluation in May 2010 that the initial onset of seizures was in 1976, which is six years after service separation. This is also supported by the medical opinions obtained by VA. There is no medical opinion that purports to relate post-service seizures to service. While the findings from the Veteran's private provider dated from 2004 to 2007 support the presence of seizures at that time, they do not purport to relate the Veteran's seizures to any event or exposure in service. The Board has considered the Veteran’s lay statements regarding etiology. However, relating current or post-service seizures to temporally remote events in service, such as a loss of consciousness, is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The question requires medical knowledge and is not capable of lay observation. Accordingly, the Veteran’s lay statements are unpersuasive as to an etiologic relationship between the claimed seizures and service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In sum, the Board finds that the claimed seizures, to include pseudoseizures, are not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed seizure disorder is not warranted. 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, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.