Citation Nr: 21038064 Decision Date: 06/23/21 Archive Date: 06/23/21 DOCKET NO. 15-28 171 DATE: June 23, 2021 ORDER Entitlement to service connection for a seizure disorder with memory loss, to include as due to an undiagnosed illness and as secondary to service-connected psychiatric disorder, is denied. FINDING OF FACT The most probative evidence of record establishes that the Veteran had a reaction to stress which resembles a seizure disorder and which is part and parcel of his service connected unspecified anxiety disorder but that he does not have and has never had an actual seizure disorder. CONCLUSION OF LAW The criteria for service connection for a seizure disorder with memory loss, to include as due to an undiagnosed illness and as secondary to service-connected anxiety disorder, not otherwise specified, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.317, 4.14. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Alabama Army National Guard and had a period of active duty for training (ACDUTRA) from March 1990 to September 1990 and he was called up for a period of active duty from September 1990 to July 1991 in support of Operation Desert Shield/Storm and served in Southwest Asia from October 26, 1990 to June 8, 1991, including service in Kuwait. His military occupational specialty was wheel vehicle repairman. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board reopened the claim for service connection for a seizure disorder with memory loss and remanded the underlying merits. At that time, the Board also granted service connection for an anxiety disorder (the Veteran's only service-connected disorder). A November 2018 rating decision effectuated that grant and assigned an initial rating of 50 percent for an anxiety disorder, not otherwise specified (NOS) and also proposed to find the Veteran in competent. The Board again remanded the case in March 2020. A November 2020 rating decision recharacterized the psychiatric disability as an unspecified anxiety disorder and granted an increased rating of 70 percent, effective June 12, 2020. That 70 percent rating was premised upon psychiatric symptoms which included forgetting names, mild memory loss, forgetting recent events, forgetting to complete tasks, panic attacks, and impaired short- and long- term memory. It has now been returned for appellate consideration. Service Connection Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases, such as epilepsies, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A veteran of the Persian Gulf War can establish entitlement to service connection on a presumptive basis if the veteran "exhibits objective indication of a qualifying chronic disability" that manifests during active duty or to a compensable degree during the specific presumptive period. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317. To qualify for presumptive service connection under § 3.317, a claimant must have a "qualifying chronic disability" that results from either an "undiagnosed illness" or a medically unexplained chronic multi-symptom illness (MUCMI) "defined by a cluster of signs or symptoms." 38 C.F.R. § 3.317(a)(2)(i); see Atencio v. O'Rourke, 30 Vet. App. 74, 80-82 (2018). A "MUCMI" is a "diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii). "[A]n illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive." Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition as that during service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the condition (e.g., whether the condition is of a type that requires medical expertise to identify it as the same condition as that during service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Reasonable doubt will be favorably resolved if there is an approximate balance of favorable and unfavorable evidence but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001) (holding that an approximate balance of evidence is more favorable than the evidence being in equipoise, i.e., equally balanced). Entitlement to service connection for a seizure disorder with memory loss, to include as due to an undiagnosed illness and as secondary to service-connected psychiatric disorder It is contended that the Veteran developed a seizure disorder while serving overseas during the Persian Gulf Conflict as a result of exposure to toxins or environmental agents, which is separate and distinct from his service-connected psychiatric disorder. For the following reason, the Board concludes that the preponderance of the evidence demonstrates that his putative symptoms of a seizure disorder are, in actuality, manifestations of his service-connected psychiatric disorder and that he does not have a separate and distinct seizure disorder. The service treatment records (STRs) show that in January 1991, the Veteran had an episode during service in which he "went crazy" and had to be strapped to a stretcher. He was evaluated by a mental health clinician, who found no evidence of seizures or hyperthermia. The clinician did not make a diagnosis but noted that the Veteran was not speaking or opening his eyes, except when commanded to do so. On VA psychiatric examination in April 1997 there was a diagnosis of an adult adjustment disorder with depression, and on examination that month for seizures, the diagnosis was probable complex partial seizures but it was noted that pseudoseizures could not be excluded, and to the examiner's knowledge there was no ictal EEG abnormality. On VA examination in November 2004, there was a diagnosis of PTSD, but the examiner did not associate it with a verified in-service stressor or provide an etiology opinion on the Veteran's PTSD. When evaluated by a VA psychiatrist in July 2005 there were diagnoses of probable malingering; a history of psychosis, NOS; and a history of pseudoseizures versus seizures. On VA PTSD examination in March 2011 the claim file was reviewed. It was noted that the Veteran was not cooperative, and because of some difficulties obtaining information the examiner reviewed the records to corroborate the Veteran's statements. The examiner indicated that the Veteran was overly dramatic and might have been exaggerating his difficulties. The diagnoses were marijuana dependence, and a personality disorder, NOS. Although he did not meet the requirements for a diagnosis of PTSD, his symptoms could be considered as anxiety disorder, NOS, which was at least as likely as not related to his fear of hostile military or terrorist activity. On VA PTSD examination in May 2012 it was found that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD; and the diagnosis was an anxiety disorder, not otherwise specified (NOS). The Veteran was noted to be manipulative in behavior and his responses were at times contradictory. He appeared to put forth questionable effort on cognitive testing. Moreover, his reports of anxiety and mood related symptoms appeared over-reported to some extent, and as such it was difficult to determine the exact nature and extent of his anxiety symptoms. It was noted that he had not participated in mental health treatment since 2008. It appeared that symptoms of anxiety were at least partially related to his self-reported history of childhood physical abuse by a parent, although his experiences in Desert Storm may have added to his anxiety. Conditions other than PTSD might account in part for his symptoms of anxiety, including cannabis dependence, a personality disorder, and at least by history a psychotic disorder. He had a history of possible partial complex seizures since 1991 and had last been hospitalized for seizures in 1997. Past EEG monitoring was inconclusive for epilepsy and he was not currently taking medication for seizures. It was observed that a May 2000 clinical note stated that a urine screening was positive for cannabis, and that marijuana might be contributing to his emotional, behavioral, and cognitive difficulties but it was difficult to determine how much of his impaired performance on testing was related to his substance abuse versus other organic or psychiatric factors. In a September 2015 statement, Dr. H. S. reported that as to whether the Veteran had a seizure disorder related to military service, he had reviewed the Veteran's claim file and interviewed the Veteran, at which time the Veteran described his history of seizure and mental problems which started during service. He had seizures when his Tegretol was in the therapeutic range, but EEGs from 2003 and all the way back to 1994 were all normal. Dr. H. S. reported that: [I]t would be highly unlikely [that] a person would have seizure with a therapeutic range of Tegretol and repetitive normal EEGs. Although the veteran clearly believes he does have seizures, I believe it is clear he does not. His seizures are a result of his anxiety disorder. The 'seizure' the veteran had in service on 1-24-1991 was actually a physical response to an anxiety reaction. In layman's terms, it was a 'nervous breakdown.' In conclusion, it is clear that the veteran does not have a seizure disorder. He does have a psychotic problem which manifested itself while he was in service on 1-24-1991. A September 2019 rating decision determined that the Veteran was not competent to handle his VA compensation funds, due to a diagnosed seizure disorder and service-connected psychiatric disorder with memory loss. A report of a February 2020 telephonic evaluation by a private psychologist yielded a diagnosis of an unspecified anxiety disorder. Past clinical records were reviewed and summarized, including service treatment records, and records as far back as March 1991 noting a history of epilepsy, in addition to the 2015 statement of Dr. H. S. that the Veteran's seizures were likely part of a psychiatric disorder. His symptoms included impaired short and long term memory. It was reported that he had significant memory impairment, mixing up days and event and could be confused about what happened in the past versus more recently. Also, he particularly struggled with recalling information about events during military service. Three lay statements, by the Veteran's mother and two sisters, were considered and reflected that the Veteran could have panic attacks that would lead to seizures. In April 2020, the Veteran's records were reviewed by a VA Nurse Practitioner for the purpose of evaluating the claimed epilepsy. While the report indicates that there was a diagnosis of a seizure disorder, and it was reported that the diagnosis was confirmed by virtue of the Veteran's taking medication for a seizure disorder; it was further stated that he had not had a witnessed seizure and it was also reported that he had not had a confirmed diagnosis of epilepsy with a history of seizures. He had no signs or symptoms attributable to a seizure disorder. He had never had any type of seizure activity, including major, minor, petit mal or psychomotor seizure. The evaluator rendered an opinion that a seizure disorder was less likely than not proximately due to or the result of his psychiatric disorder. Citing information from the Mayo Clinic it was stated that: Although people with seizures will have emotional health issues. People with seizures are more likely to have psychological problems, complications such as depression and anxiety. Problems may be a result of difficulties dealing with the condition itself as well as medication side effects but does not cause seizures. Nerve cells (neurons) in the brain create, send, and receive electrical impulses, which allow the brain's nerve cells to communicate. Anything that disrupts these communication pathways can lead to a seizure. The most common cause of seizures is epilepsy. But not every person who has a seizure has epilepsy. The medical literature does not support an [sic] relationship. Therefore, a nexus has not been established. On VA psychiatric examination in October 2020 by a psychologist the records were reviewed and the diagnosis was an unspecified anxiety disorder. It was reported that the Veteran did not have a diagnosed traumatic brain injury (TBI). It was noted that while VA records documented a reported history of physical abuse of the Veteran by his father, he currently denied abuse and neglect and described a normal social development. His symptoms included mild memory loss, such as forgetting names, directions or recent events and impairment of short- and long-term memory. On mental status examination it was noted that his memory was impaired. The Veteran was afforded a Gulf War General Medical examination and an examination for a claimed seizure disorder in February 2021 by a VA Nurse Practitioner. At that time the Veteran brought in an August 2017 MRI report which stated that there was a "metallic susceptibility artifact projected along the left frontal region" but was otherwise unremarkable. The report of the Gulf War General Medical examination reflects that the Veteran had a long history of psychiatric condition but there had been no definite diagnosis of seizure by neurology based on objective diagnostic testing, such as EEGs or brain imaging. The Veteran believed that the August 2017 MRI was proof that VA was lying to him about what happened in the past, but it was noted that while that MRI suspected there was something metallic in origin, no other prior brain imaging, such as earlier brain MRIs or CT scans had found the same anomaly. That examination report also stated that the Veteran had a seizure disorder for which there was no etiology. It was further stated that the etiology of his seizures had not been defined, but there was a remaining concern that his seizure activity, as reported by the Veteran, was psychogenic in origin. The report of the February 2021 seizure examination reflects that the Veteran had been diagnosed as having a seizure disorder but after an extensive history and workup his seizure activity was of undefined etiology. The diagnosis of a seizure disorder was premised upon his having taken anti-seizure medication in the past and based on history as given by the Veteran and his family, but no seizures had been observed by medical personnel. There had been a concern for both a psychogenic component to the seizure activity due to a lack of objective confirmation of seizures on EEG, or to possible etiologic abnormalities in his brain based on MRI/CT imaging; and a psychiatric workup had been complicated by documented "over reporting and feigning symptoms" during testing. The examining Nurse Practitioner opined that the Veteran's seizure disorder with memory loss were a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, and as such was presumed to be caused by service in the Southwest Asia Theater of Operations. The rationale was that the Veteran had been diagnosed with multiple mental health issues, including personality/mood disorder, anxiety disorder, and schizophrenia. He has been diagnosed with and prescribed medication for a probable seizure disorder - based on history and hedged [sic] to involve a psychogenic etiology based on normal objective diagnostic results. His psychiatric disorders are complex and difficult to diagnose, made more confusing due to documented "over-reporting and feigning symptoms" during a psychiatric work up in 2003. There is no doubt a relationship between this Veteran's reported seizure activity and his psychiatric conditions, as he reports when his stress and anxiety levels are elevated his seizure symptoms are worse. The exact nature and etiology of his seizure condition is not known. What is clearly documented is the source of his mental and seizure conditions, his service in the Gulf War. On VA psychiatric examination in March 2021 it was reported that the Veteran had seizures more often when he had stress. He related that scans at a private facility had shown that he had shrapnel in his forehead. In April 2021 the Veteran claim file, including the 2015 letter of Dr. H. S., was reviewed by a VA Physician's Assistant. It was opined that: The Veteran's condition is a disease with a clear and specific etiology. Several records document the "seizures" as psychogenic in nature due to the extensive mental health history of the Veteran to include personality/mood disorder, anxiety disorder, and schizophrenia. Medical provider Dr. S. believes the Veteran reported seizures are not actually seizures but [he] has an anxiety disorder that results in a type of physical response that may appear to look like seizures. In addition, objective findings include normal EEGs and therapeutic levels of anti-seizure medications. Due to lack of objective evidence and reports from medical professionals, a seizure diagnosis cannot be made and the Veteran does not have a condition or diagnosis that is related [to the] Gulf War. A nexus has not been established. The Board acknowledges the lay statements of record, to include those of family members, submitted on behalf of the Veteran. While lay persons are competent to describe observable symptoms, a lay person is not competent to opine on the etiology of a seizure disorder because they lack the requisite medical expertise to formulate a medical opinion on whether it had its' onset during service or is related to an inservice injury or disease or a service-connected disorder. Rather, the etiology of the claimed seizure disorder is an intricate and complex matter that require specialized medical education and knowledge, separate from the training, education, or knowledge of a lay person, regarding the unseen and complex processes of the development of neurologic disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). This is particularly true when psychiatric disorders, such as the Veteran's service connected psychiatric disorder, may display symptoms similar to a neurologic disorder, such as a seizure disorder. Moreover, in addition to psychomotor behavior it must be noted that memory loss may also be a symptom of a psychiatric disorder. See generally 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Therefore, the Board finds that the appellant and other lay persons' opinions have no probative value in this matter. Nevertheless, even if the Board were to find the Veteran's statements of record as competent evidence, the Board finds the Veteran's lay statements less than credible because they are inconsistent with other evidence of record, to include the negative evidence of record, and because he has a history of over-reporting and feigning symptoms. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant's statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996). In this regard, it appears that the Veteran, by having presented a copy of a recent MRI to a 2021 examiner, seeks to contend that he had some type of head injury, e.g., a shell fragment wound. However, his military occupational specialty was a wheel vehicle repairman and he was not awarded any decorations, awards, or citations, suggesting that he participated in combat, nor has he ever described having actually participated in combat. Moreover, as was pointed out by clinical personnel, the findings only suggestive of a possible metallic fragment were not found on earlier imaging studies. Lastly, there is otherwise no evidence that the Veteran sustained a traumatic brain injury during service. Ultimately, the question of whether the Veteran now actually has a seizure disorder with memory loss due to military service and which is a distinct separate medical entity related to military service or due to or aggravated by his service connected psychiatric disorder, as opposed to being actually a symptom of his service connected psychiatric disorder, is a medical question. In this connection, there is only one favorable medical opinion. The February 2021 examiner opined that the Veteran had medically unexplained chronic multisymptom illness of unknown etiology. In rendering that opinion the past concerns of a "psychogenic etiology" were noted and while observing that there was no doubt a relationship between the reported seizure activity and psychiatric disability, with reported seizure activity being worse with higher levels of stress and anxiety, it did not specifically address or rule out whether the reported seizures were a manifestation, i.e., a symptom, of the psychiatric disorder. However, this was specifically addressed in the April 2021 opinion which found that there was a "clear and specific etiology" for the seizure disorder, as opposed to being of an etiology or pathophysiology which is inconclusive. In fact, it was specifically opined that the putative seizures were psychogenic and due to the service connected psychiatric disorder. The Board gives greater weight to the April 2021 opinion because it is consistent with the other medical opinions of record. Specifically, even the Veteran's private physician opined in 2015 that the Veteran did not have a seizure disorder but, rather, a physical response to an anxiety reaction. Notably, this is in keeping with the Veteran's history of putative seizures at times of heightened stress and anxiety. Also, the February 2020 report of a private psychologist noted the 2015 opinion and, while noting that the Veteran had some memory impairment, did not offer a contrary opinion. Furthermore, the April 2020 medical opinion found that a seizure disorder was less likely than not due to the psychiatric disorder. While that opinion did not specifically address whether a seizure disorder was aggravated by the service connected psychiatric disorder, the persuasive medical opinions finding that the Veteran's putative seizures are only a symptom of his psychiatric disorder establishes that there is no possibility of aggravation, because he does not have a seizure disorder. For these reasons, the Board finds that the preponderance of the evidence is against the claim for a seizure disorder with memory loss, to include as due to an undiagnosed illness and as secondary to service-connected psychiatric disorder. There is no doubt to be resolved. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.