Citation Nr: 21029815 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-01 954 DATE: May 17, 2021 ORDER Entitlement to service connection for a vertigo disorder is denied. Entitlement to service connection for a pseudoseizure disorder is denied. FINDINGS OF FACT 1. The most probative evidence attributes the Veteran's vertigo symptoms to his migraine headache disorder, which is already service-connected. 2. The most probative evidence does not reflect symptoms of an active pseudoseizure disorder at any time during the rating period, or a nexus between any such disorder and military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a vertigo disorder have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a pseudoseizure disorder have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from April 1979 to May 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In November 2018, the Board remanded these matters for further development, including a VA examination and medical opinion. The agency of original jurisdiction (AOJ) obtained an examination and medical opinion in November 2019. After reviewing the documents, the Board finds that they substantially comply with the prior remand directives. The Veteran testified before the Board in July 2018. The Veterans Law Judge who presided over the hearing is no longer employed by the Board. In March 2021, the AOJ sent the Veteran a letter asking if he would like to appear for another hearing. To date, the Veteran has not responded to the letter. Accordingly, the Board finds that the Veteran intends to proceed without an additional hearing. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for a vertigo disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a vertigo disorder. Therefore, the claim may not be granted. The record reflects a diagnosis of vertigo associated with service-connected migraine headaches. See C&P Exam, November 2019. The Veteran sought treatment for vertigo during military service and was diagnosed with syncopal episodes. Thus, the question is whether there exists a nexus between a distinct vertigo disorder and military service to the extent that service connection could be granted. See 38 C.F.R. § 3.303. The Veteran underwent a VA examination in November 2019. He reported that he developed migraine headaches with vertigo after being struck in the head by a baseball during military service. He stated that he has milder headaches almost daily, but more severe headaches occur two or three times per year. He described the symptoms as headaches with dizziness, vertigo, and nausea, lasting several hours to all day. The examiner concluded that "dizziness/vertigo is a symptom of the migraine condition and does not warrant a separate vertigo diagnosis." Considering the above, the Board finds that the most probative evidence shows that the Veteran's vertigo symptoms are associated with his service-connected migraine headaches. Thus, a grant of service connection for a separate vertigo disorder is not applicable in this case. The rating assigned for migraine headaches is based on the frequency and severity of migraine attacks as contemplated by the nature and extent of all migraine symptoms contributing to the attack. See 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100; Holmes v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2131, *13-14 (November 5, 2020) ("The bottom line is that the rating criteria for migraines contemplate all migraine symptoms"). As such, the Board finds that the Veteran is already service-connected for his migraine symptomatology, to include the issue of his vertigo. The Board has considered the Veteran's lay testimony. However, the ability to link vertigo to a specific cause requires complex medical knowledge that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, because the Veteran's vertigo is a symptom of his service-connected migraine headaches, and the rating assigned for migraine headaches contemplates all migraine symptoms contributing to a prostrating attack, the Board may not grant service connection for vertigo as a separate disorder. 2. Entitlement to service connection for a pseudoseizure disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a pseudoseizure disorder. Therefore, the claim may not be granted. The Veteran underwent neurological and psychological evaluations during military service after being struck in the head by a baseball. In July 1982, the Veteran was evaluated at Barksdale Air Force Base after complaining of seizure-like episodes beginning three months prior and consisting of a prodrome of tremulousness followed by loss of consciousness lasting about 60 seconds. The clinician noted that the Veteran was previously seen by the psychiatry department in May 1982, who found no psychopathology, and by a neurology team, who found no abnormalities after diagnostic testing. He was referred to an outside neurologist who concluded that the episodes were "probably not legitimate seizures." After the neurologist, the Veteran was taken to a VA hospital, where a physician diagnosed seizures and prescribed medication. However, the medication was stopped upon arrival at another facility. The clinician noted that the Veteran resumed taking it after he was discharged because he thought it stopped his seizures. When the Veteran arrived at Barksdale, the clinician stopped the medication and the Veteran reported having a seizure, but the nursing staff concluded that the behavior was "atypical" of seizures. The clinician decided to place the Veteran on a placebo, which he was told was seizure medicine. After taking the placebo, the Veteran reported that his seizures stopped. The clinician diagnosed pseudoseizures, controlled by placebo, and a personality disorder. Thus, the questions for the Board are (1) whether there exists a current disability of pseudoseizures and (2) whether there exists a nexus between any pseudoseizure disorder and military service. See 38 C.F.R. § 3.303. The Veteran attended a VA neurology consultation in October 2017. He asserted that he developed "Tonic Clonic Seizures" after the injury in 1982. However, he denied experiencing recurrent seizures and stated that he had not experienced a seizure since 1992. The neurologist diagnosed "post-traumatic epilepsy", but did not explain his bases for the diagnosis, or indicate that there were any symptoms attributable to a current pseudoseizure disorder. It is unclear whether the physician based his diagnosis solely on lay history provided by the Veteran. The Veteran underwent a VA examination in November 2019. He reported that he has not experienced any seizures since the 1980s. The examiner noted that the Veteran denied any current seizure or pseudoseizure signs or symptoms, and that he was not taking any seizure medications. After performing a physical evaluation, the examiner wrote that the "Veteran states he has not experienced any seizures since the 1980s. Denies any current or recent seizure or pseudoseizure signs and/or symptoms. Pseudoseizure condition was acute only. No objective evidence or subjective report of a chronic seizure or pseudoseizure condition. Therefore, no pseudoseizure or seizure diagnosis warranted for today's exam." After careful review of the record, the Board finds that the most probative evidence does not support the presence of an active seizure or pseudoseizure disorder during the appeal period. Specifically, the Veteran denied having any current symptoms attributed to seizures and reported that his last seizure symptoms occurred decades before he filed a claim for benefits. See Brammer, 3 Vet. App. at 225. Moreover, the VA examiner found no evidence of a current seizure or pseudoseizure disorder. The Board has reviewed the neurological consultation of October 2017. Although the clinician diagnosed "post-traumatic epilepsy", he did not attribute any current symptoms to the disorder and acknowledged that the Veteran's last reported seizure symptoms occurred decades ago. As such, the Board finds that the most probative evidence does not support the existence of a current disability of pseudoseizure or seizure symptoms during the rating period. Thus, the current disability element of service connection has not been met, and the claim may not be granted. The Veteran's lay statements have been considered. However, the ability to diagnose and link a seizure or pseudoseizure disorder to military service requires complex medical knowledge that is beyond the capacity of a layperson. Moreover, although the Veteran was treated for pseudoseizures during military service, it is not enough to support a claim of service connection. Rather, the record must also show that the Veteran has current symptoms of a disorder during or proximate to the appeal period, which the evidence does not reflect in this case. The Board is sincerely grateful for the Veteran's military service. However, given the record before it, the Board finds that the evidence does not support the existence of a pseudoseizure disorder at any point during the appeal period, and, thus, service connection must be denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.