Citation Nr: 22013385 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-09 211 DATE: March 9, 2022 ORDER Service connection for epileptic seizures is denied. FINDING OF FACT The Veteran's epileptic seizures was not shown as chronic in service and did not manifest to a compensable degree within one year after the Veteran's separation from service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for epileptic seizures have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to August 1991. The Veteran died in November 2019, while his appeal was pending. The appellant is his surviving spouse, and she has been accepted as the substitute appellant as noted in an April 2020 letter. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. 1. Service connection for epileptic seizures is denied. Prior to his death, the Veteran sought service connection for epileptic seizures. In the Veteran's July 2018 notice of disagreement, he asserted that other veterans are receiving compensation for the same claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, including seizure disorders, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were 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). The question for the Board is whether the Veteran has a current disability that began during service or within one year of separation from service, or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records are silent for complaints or symptoms related to seizures, head injuries, or other neurological symptoms. An August 1991 discharge examination showed no neurological disorders. The post-service treatment records show that the Veteran complained of seizures many years after service. In July 2017 private treatment record, the Veteran was seen for a follow up to complex partial seizures. At that time, the Veteran reported that he had his first seizure in November 2016, with symptoms of recurrent memory, strange smells, and loss of consciousness. He was witnessed to have generalized stiffness, shaking, confusion, and disorientation. Although this initial seizure was thought to have been a complication from nasal decongestant use when it occurred, the Veteran had a second seizure in June 2017. The June 2017 seizure involved similar presentation of symptoms despite discontinued decongestant use. The Veteran was noted to have no history of concussion, developmental problems, febrile seizures, or family history of epilepsy. The clinician noted that a November 2016 MRI showed mesiotemporal sclerosis on the right side. In April 2018, the Veteran was afforded a VA examination for seizures. The examiner noted a diagnosis of tonic-clonic seizures or grand mal epilepsy. The examiner indicated review of the Veteran's claims folder, including his service treatment records, but noted that the separation examination was not available for review. The examiner provided a negative nexus opinion and determined the Veteran's seizures did not onset in service and were not otherwise related to service. In providing her rationale, the examiner indicated that the mesiotemporal sclerosis seen in the November 2016 MRI is the most common association with intractable temporal lobe epilepsy. The Veteran symptoms are consistent with this type of seizure, including abnormal sensations and smells. Furthermore, there is a strong association of mesiotemporal sclerosis with childhood febrile seizures, other perinatal insults, temporal lobe infections, and infection with the herpes virus. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The rationale provided is cogent. The examiner identified several risk factors for the development of the epileptic seizures. However, the Veteran's service treatment records are silent for any of the identified risk factors. In addition, neither the Veteran nor the appellant identified any perinatal insults, temporal lobe infections, and infection with the herpes virus during the Veteran's active service. Although the examiner noted that the separation examination was not available for review, the examination is otherwise based on a meaningful review of the relevant evidence. The examiner noted review of the Veteran's VA claims folder, including review of other service treatment records and she also discussed the Veteran's relevant post-service treatment records. Moreover, despite the examiner having apparently overlooked the discharge examination report, the report was silent for any symptoms or diagnosis related to seizures. Neither the Veteran nor the appellant asserted that he had symptoms of seizures in service. Given the above, the failure to review the separation examination would not appear to be prejudicial to the conclusions reached by the examiner. The Board acknowledges that in advancing this appeal, the Veteran and the appellant believe that his epileptic seizures are etiologically related to service. To the extent the Veteran and the appellant offer a specific theory relating his epileptic seizures to service, neither are shown to be competent to provide an opinion as to the etiology of his epileptic seizures. The issue is medically complex, as it requires knowledge of the neurological system in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Neither the appellant nor the Veteran are shown to have the experience or training in neurology. As such, the lay statements are not competent evidence of an etiological link in this case. Moreover, at the October 2021 Board hearing, the representative appears to assert that the Veteran's military occupational specialty of stinger missile operator potentially caused head injuries from firing the weapon system on the Veteran's shoulder. However, the evidence does not show any occurrence of a head injury in service. The Veteran did not identify any such event during service. At the October 2021 Board hearing, the appellant testified that she was unaware of a specific head injury or any type of concussion during the Veteran's service. The appellant also indicated that the Veteran's relatives were unaware of any such event. The appellant testified that the Veteran's first seizure occurred many years after service. As such, there is no competent or credible evidence to support the representative's assertions. Consequently, the Board gives no probative weight to the representative's assertion. Finally, the Board finds service connection for epileptic seizures may not be presumed under the provisions of 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Neither the Veteran nor the appellant contend that the Veteran had onset of epileptic seizures during service or within the one year presumptive period. In the July 2017 private treatment records, the Veteran reported that his first seizure was in November 2016. In her testimony before the Board in October 2021, the appellant indicated that the Veteran had his first seizure many years after service (in November 2017). There is no other evidence to show the Veteran had onset of seizures within one year of separation from active service. Thus, the presumption does not apply. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In conclusion, the Board is sympathetic to the circumstances at hand and is appreciative of the Veteran's service. However, the competent, credible, and probative evidence persuasively weighs against a causal nexus between the Veteran's epileptic seizures and service. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.