Citation Nr: 21039951 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-33 967A DATE: July 1, 2021 ORDER Service connection for a seizure disorder is denied. FINDING OF FACT The preponderance of competent evidence tends to show that it is less likely than not that the Veteran's current seizure disorder was incurred as a result of herpetic encephalitis, or during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a seizure disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to September 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Thereafter, the Veteran submitted additional evidence for which there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) consideration. The case has been remanded by the Board several times, most recently in September 2020. The Board finds there has been substantial compliance with its prior remand directives as the RO obtained an addendum opinion and then a clarification opinion regarding whether there is evidence to accept or reject that the Veteran experienced a seizure or herpetic encephalitis in service. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for a seizure disorder. The veteran contends service connection for a seizure disorder. See 9/1/1993 VA 21-526. At the outset, the Board notes that the Veteran was diagnosed with a brain abscess and a seizure disorder. In September 1993 he underwent a left frontal craniotomy with abscess removal. See 12/28/1993 CAPRI, at pages 2 and 16. Therefore, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. As to the second element of service connection, the Veteran asserted that while he was stationed in Egypt, he tripped and fell over ropes and hit his head. Additionally, he reported that there was no medical clinic or doctors, and he does not think there was any record of that event. Additionally, he reported that he did not know that he was having seizures until he was told by VA doctors after active service. See 7/23/2010 VA 21-4138; see also 10/14/2010 NOD. The Veteran's service treatment records showed two incidents where the Veteran was hit by a mooring rope. See 1/6/2015 STR Medical, at pages 10 and 27. Thus, the second element of service connection has been met. The question before the Board therefore becomes whether there is a so-called "nexus" between the Veteran's current seizure disorder and service. The competent and probative evidence tends to weigh against a finding that the Veteran's seizure disorder is related to service. The Veteran underwent a VA seizure disorder examination in November 2015. At the conclusion of the examination, the examiner opined that the Veteran's seizure disorder was less likely than not incurred in service. See 11/10/2015 C&P Examination. However, the Board finds this opinion inadequate. The examiner relied on a lack of in-service treatment to render his opinion. Additionally, the October 2017 Board remand found that the examiner did not consider the Veteran's lay statements about "black out spells" during service, which he asserted were seizures. Further, the examiner's statements regarding lack of treatment for a venereal disease are inaccurate, the service treatment records showed treatment for a venereal disease. Thus, the Board affords this opinion little weight. An additional VA seizure disorder examination was afforded in November 2017. At the conclusion of the examination, the examiner opined that the Veteran's seizure disorder was less likely than not incurred in service. See 11/6/2017 C&P Examination. However, the Board also finds this opinion inadequate, as the examiner again relied on a lack of in-service treatment to render his opinion. Additionally, the April 2018 Board remand found that the examiner did not consider whether the Veteran's venereal disease caused his seizures. Thus, the Board affords this opinion little weight. An additional VA seizure disorder examination was conducted in March 2019. At the conclusion of the examination, the examiner opined that the Veteran's seizure disorder was less likely than not incurred in service. See 3/29/2019 C&P Examination. Again, this opinion is inadequate, as the examiner relied on a lack of in-service treatment to render his opinion. Additionally, the December 2019 Board remand found that the examiner did not consider whether the Veteran's venereal disease caused his seizures or lay statements from the Veteran's friends and family in the file. Thus, the Board affords this opinion little weight. In April 2020 the Veteran underwent another VA seizure disorder examination. At the conclusion of the examination, the examiner opined that the Veteran's seizure disorder was less likely than not incurred in service. See 4/22/2020 C&P Examination. This opinion is inadequate as the examiner merely noted that there was no in-service diagnosis of herpetic encephalitis and provided no opinion about the Veteran's reports of seizures in service. Thus, the Board affords this opinion little weight. After the September 2020 Board remand, the AOJ obtained an addendum opinion in October 2020. The reviewing clinician opined that the Veteran's seizure disorder was less likely than not incurred in service. The reviewing clinician stated that the lack of in-service evidence of laboratory findings to diagnose the Veteran with herpetic encephalitis and the presence of a finding of a temporal lobe granuloma/abscess, make it difficult to ascertain with 50 percent or more probability that the Veteran's claimed seizure during service was due to the claimed herpetic encephalitis. See 10/3/2020 C&P Examination. After the October 2020 VA addendum opinion, in October 2020 a clarification opinion was obtained. The reviewing clinician reported that Veteran's records show evidence of seizures documented in February 1993, which were diagnosed as aseptic meningitis, 18 years after the Veteran's separation from service. Additionally, the reviewing clinician reported that the record showed no evidence of seizures or a diagnosis of herpetic encephalitis during that 18-year period, which suggested that the seizures were most likely new and unrelated to service. Further, the reviewing clinician opined that the left temporal lobe granuloma/abscess was the most likely cause of the Veteran's seizures. In addition, the reviewing clinician reported that diagnostic evidence noted no stainable organisms to identify the cause, which makes it difficult to ascertain with 50 percent or greater probability that the granuloma/abscess was in fact due to a herpes infection. Furthermore, the reviewing clinician stated that although many infections are associated with granuloma formation, relatively few microorganisms cause the majority of cases with viral infections caused by cytomegalovirus, Epstein-Barr virus, and measles rarely presenting with granuloma formation. Moreover, the reviewing clinician stated that herpes simplex virus encephalitis is most often an acute monophasic disease process, which rarely progresses to a chronic state, and more rarely progresses to a granulomatous encephalitis. See 10/21/2020 C&P Examination. A VA discharge summary note from September 1993 showed that the Veteran's first seizure occurred in 1985 and had no further activity until 1993. See 12/28/1993 CAPRI, at page 2. Additionally, VA treatment records showed contradictory statements from the Veteran, such as during a neurology note from May 2010, the Veteran reported that he suffered a head injury in 1973 or 1974, and that his first seizure occurred in 1978; 3 years after active service. See 12/30/2011 CAPRI, at page 16. Further, in a neurology note from October 2011, the Veteran reported that his first seizure was in 1972; however, he entered active service in 1973. Id., at page 2. The Board finds the October 2020 VA addendum opinion and the October 2020 clarification opinion to be highly persuasive and worthy of much weight regarding the issue of whether the Veteran's current seizure disorder is related to service. The Board finds that the rationale is logically supported, based on familiarity with the Veteran's relevant medical history, and deserves great weight. Additionally, the Board places great probative weight on the October 2020 VA addendum opinion and the October 2020 clarification opinion in this case, as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture, to include consideration of relevant facts such as the post-service medical record. The Board notes that the October 2020 reviewing clinician appeared to contradict herself, since her opinion suggested that the Veteran had seizures in-service, likely due to left temporal lobe granuloma/abscess, and also stated that there was no evidence of in-service seizures. However, the October 2020 addendum opinion clarified that service connection for a seizure disorder was not related to an in-service injury, event, or disease. As such, the Board finds that when reading both October 2020 reports together, to include the rationales, that a logical and supported rationale was provided. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (stating that a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). (Continued on the next page) The Board also acknowledges the lay statements from the Veteran and his friends and family. Such statements assert that the Veteran experiences episodes of "black outs" that began in-service. Additionally, as mentioned above, he underwent surgery and afterwards his memory and speech were affected. See 6/4/2010 VA 21-4138; see also 6/4/2010 Buddy/Lay Statement; 12/6/2013 Form 9. The Veteran and his friends and family are certainly competent to report the Veteran's observable symptoms. However, they are not competent to attribute his symptoms to service as the record does not reflect that they have medical training and/or experience. Therefore, the opinions from the Veteran and his friends and family regarding the etiology of the current seizure disorder are not competent and they lack weight. The competent medical evidence, such as the October 2020 addendum opinion and the October 2020 clarification opinion, heavily outweigh the Veteran's opinion and tend to show that the Veteran's seizure disorder was not due to service. As discussed above, the Board finds this opinion to be probative and deserving weight as there is a supporting rationale why, to include reference to relevant facts in the record. In sum, service connection for a seizure disorder is not warranted, to include on various theories of entitlement. As the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b). SARAH B. RICHMOND Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.