Citation Nr: 21023951 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-20 123 DATE: April 21, 2021 ORDER Entitlement to service connection for a seizure disorder due to head trauma is denied. FINDING OF FACT The weight of competent and credible evidence is against finding that a seizure disorder began during active service or is otherwise caused by an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a seizure disorder due to head trauma have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from May 1979 to January 1981. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue for additional development in August 2015 and November 2018. Entitlement to service connection for a seizure disorder due to head trauma Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he is entitled to service connection for a seizure disorder as secondary to head trauma sustained in service. Review of service treatment records include a July 1979 treatment for dizzy spells and headaches that the treatment provider diagnosed as a viral upper respiratory infection. The Veteran deployed to Korea from August 1979 to August 1980. There are records of medical care for unrelated symptoms in May and June 1980 at clinics in Korea. There is no record of treatment for heat stroke with two days of hospital care. In June 1980, the Veteran was awarded non-judicial punishment for assaulting another soldier. In November 1980, the Veteran reported that he had been physically assaulted off base. An emergency treatment record indicated that he was beaten and kicked in the attack. A possible loss of consciousness was suggested. During the physical evaluation, the Veteran complained of injuries to the head and face, left forearm, chest, and left knee. Multiple abrasions and contusions were visible about the face and skull. X-ray films of the face were negative for any evidence of fractures. The Veteran was admitted to the hospital and evaluated overnight due to his head trauma. Thereafter, he was placed on restricted duties (profile) for 7 days. In the same month, the Veteran was treated for complaints of dizziness, blacking out, and pain behind the left eye. He stated that he was struck in head, near the temple. Due to ongoing complaints of headaches and left eye pain, the Veteran had an X-ray of the skull. Diagnostic imaging revealed a normal cranial vault with no abnormal calcifications. The Veteran’s January 1981 Report of Medical Examination prior to separation from service included a normal neurologic examination. The report noted the recent hospitalization after being assaulted. In a contemporaneous Report of Medical History, the Veteran reported a history of head injury and loss of memory or amnesia, but denied any period of unconsciousness, dizziness or fainting spells, frequent or severe headaches, depression or excessive worry, or nervous trouble of any sort. The Veteran reported that he had been hospitalized the previous month after being assaulted, but could not remember what had happened. Post-service records from 1995 to 2001 include treatment for various conditions, including for the left wrist, back, bilateral hips, and both shoulders, but there was no mention of ongoing seizures, blackouts, or headaches. The Veteran’s December 2001 claim noted blackouts and memory loss with the disability beginning in 1980. The Veteran underwent multiple VA examinations in March 2002 to evaluate his contentions of worsening memory loss associated with prior head trauma during service. The Veteran reported that his problems began in 1980 when he had a “heat stroke” while out on maneuvers. The Veteran’s recollection of the event was very sketchy, but thought he was hospitalized for approximately one day after the incident. The examiner noted that there was no confirmation of this incident in the service treatment records. Thereafter, the Veteran was in a fight and sustained a concussion. The Veteran reported memory difficulties beginning after the heat stroke and worsening after the concussion. Two November 1980 fights were documented in the service treatment records. The first indicated that the Veteran had been assaulted with positive loss of consciousness, but no fractures on x-ray. The second incident involved blunt trauma to the face and left eye, with questionable loss of consciousness. At that time, a neurological examination was normal, as were x-rays of the skull. The examiner noted that in November 1980 the Veteran complained of dizziness and pain behind the left eye, without change in vision, but that in July 1979 he also had complained of dizziness and headaches occurring about twice per day and was diagnosed with a viral upper respiratory infection. Later in November 1980 the Veteran again complained of head and left eye pain, but neurological testing and skull x-rays were normal. Following examination, the impression was memory loss and speech difficulties. The examiner stated that because the Veteran had complaints of headaches and dizziness even before his in-service assaults (in December 1979) the etiology of the problems was unclear. Additional testing was deemed necessary. During his March 2002 neurological evaluation and in the subsequent April 2002 neuropsychological evaluation report, the Veteran reported loss of consciousness on two occasions, once in 1980 when he suffered heat stroke and at a nightclub where he was struck from behind and lost consciousness. The Veteran was somewhat vague about the details of both events. The Veteran reported that from 1980 to 1989 he consumed up to a case of beer per day. More recently, the Veteran had been experiencing “blackouts” by which he meant episodes of memory loss. “Sometimes at the end of the day I do not remember what I did all day.” The blackouts did not involve an actual loss of consciousness. He was assessed with memory loss following head injury. Another evaluation from that time included an impression of a mood disorder due to TBI and a cognitive disorder, not otherwise specified. In April 2002, a computerized tomography (CT) scan of the head revealed mild cerebral atrophy. In November 2002, the Veteran had headaches for one day associated with sinusitis. During a March 2003 treatment for hypertension, the Veteran denied headaches and dizziness. The Veteran underwent a magnetic resonance imaging (MRI) evaluation in November 2003. Diagnostic findings showed partial complex seizures. The Veteran testified at a Board hearing in May 2015 and further discussed his in-service events. In March 2016, the Veteran was afforded a VA examination. The November 2018 Board remand found this examination report to be inadequate and, as such, the Board will not discuss it further. In a lay statement, dated April 2016, the Veteran disputed the March 2016 VA examiner’s findings. Specifically, he contended that the examiner’s opinion that his epilepsy was causally related to 15 years of heavy drinking was inaccurate. The Veteran reported that he stopped drinking in 1983, prior to the birth of his first child. Further, he contended that his symptoms, including frequent headaches, body tremors, and memory loss, dated back to active service. According to the Veteran, he suffered a stroke while serving in Korea and was flown to a military hospital where he was observed for 3 days. Upon release, he was placed on profile and restricted to light duty for 7 days. In an April 2016 statement, the Veteran’s son discussed his father’s ongoing problems with memory and shaking hands and arms. From grade school, the Veteran’s son noted that the Veteran had problems with concentration. From high school, the Veteran had intermittent headaches. An April 2016 statement from the Veteran’s wife had known the Veteran from high school. After service, he seemed like a different person than when she had first met the Veteran in high school. The Veteran was seen by a private physician for his headaches, memory loss, and body tremors who recommended additional diagnostic tests. The Veteran could not afford to get the tests done. Once their first child was born in 1983 the Veteran stopped drinking alcohol completely. Even after stopping the alcohol use, the headaches, memory loss, and body tremors continued. It was only in 1995 that the Veteran was able to get treatment through VA. He ultimately was diagnosed with traumatic brain injury (TBI) that caused memory loss and a seizure disorder. The Veteran was afforded a VA examination in February 2020. The examiner diagnosed absence seizures or petit mall or atonic seizures (generalized non-convulsive seizures) from 2003 and focal motor seizures from 2020. The Veteran discussed his current symptoms, but did not specifically discuss the onset of his seizures. Following examination, the examiner concluded that it was less likely than not that a seizure disorder was incurred in or caused by service. The rationale noted that the Veteran filed his claim for epilepsy in 2001 and that voluminous records from 1995 to 2001 made no mention of seizures, blackouts, memory problems, headaches, or other symptoms. The examiner specifically considered all prior diagnoses and nexus opinions in the record, as well as the Veteran’s lay statements. The current examiner noted that in the April 2003 neurological evaluation the Veteran denied the presence of past seizures. The February 2020 examiner confirmed the conclusions of the April 2003 VA examiner’s opinion that “Post-traumatic epilepsy (due to head trauma) has a very low incidence in patients with mild TBI (concussion) and its occurrence correlates with the severity of brain injury. Most patients with [mild TBI] as a cause for subsequent seizures are ‘out of the woods’ in about 5 years and the vast majority of patients who develop post-traumatic epilepsy do so in the first 2 years after head injury (and that includes patients with severe brain injuries, skull fractures, etc.). Therefore, it is highly unlikely that if this patient does, in fact, have a bona fide seizure disorder, it was caused by his two concussions 22 years before. There are no manifestations of prior head trauma (two concussions) on the current examination.” The examiner noted that the April 2003 neurology consult also indicated that the Veteran had memory loss since age 8 after falling against a tree and ended up in the hospital for a couple of years. The Veteran was not aware of any seizures at the time of the April 2003 evaluation, but at times his whole body would shake. The examiner cited medical literature for the proposition, “The 10-year incidence of epilepsy after traumatic brain injury (TBI) of any severity is estimated at about 2 percent. The severity of TBI strongly correlates with risk. In one population-based cohort, the cumulative five-year probability of seizures was 0.5 percent in patients with mild injury (those with loss of consciousness of amnesia <30 minutes); 1.2 percent for those with moderate injuries (loss of consciousness for 30 minutes to 24 hours or skull fracture); and 10.0 percent in those with severe injuries (loss of consciousness or amnesia for more than 24 hours or subdural hematoma or cerebral contusion). Another study of 647 hospitalized patients categorized TBI severity more traditionally with the Glasgow Coma Scale (GCS). The two-year incidence of epilepsy was 8.0 percent for GCS 13 to 15 and 16.8 percent for GCS 3 to 8. Other subsets of patients at much higher risk have been identified and include those with early seizures, intracranial hemorrhage or cerebral contusion, depressed skull fracture, and penetrating head injury. Any alcohol-related head injury, even when classified as mild, is a significant predictor of new-onset seizures… About 40 percent of individuals with post-traumatic epilepsy have onset within six months; 50 percent within one yar; and about 80 percent within two years of head injury. Post-traumatic epilepsy my begin more than 15 years later.” Thus, the Veteran has a current diagnosis. The critical question, therefore, is whether a seizure disorder had its onset in service or otherwise was caused by service. The Board concludes it was not. In reaching that conclusion, the Board finds the February 2020 examiner’s opinion of significant probative value. The examiner reviewed the claims file, interviewed the Veteran, and conducted an examination before concluding that it was less likely than not that the current seizure disorder was incurred in or otherwise related to service, including the Veteran’s multiple in-service head injuries. The examiner discussed the absence of any evidence of current residuals of long-term head injury from service and that the overall likelihood of developing a seizure disorder as the result of a TBI was extremely low. As the opinion considered the Veteran’s and the other lay allegations, as well as the other evidence of record, and provided a complete rationale for the opinions stated, the Board finds this the most probative evidence of record as to whether the current seizure disorder was incurred in or otherwise caused by service. The Board has considered the lay statements from the Veteran, his wife, and his son. These individuals are competent to report physically observable symptoms and/or the Veteran representations as to his symptoms. In this case, however, given the medical complexity of linking any such symptoms to a seizure disorder the Board affords the opinions of the medical professionals significantly greater probative weight. The Board also finds it problematic that in the Report of Medical History prior to separation he denied any period of unconsciousness, dizziness or fainting spells, or frequent or severe headaches, but now contends he had such problems on an ongoing basis from the head traumas. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In light of the foregoing, the Board finds the preponderance of the evidence against the claim and concludes that entitlement to service connection is not warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.