Back to BVA DecisionsGRANTEDService Branch ARMY Special Benefit NO SPECIAL BENEFIT Docket No. 251027-607245
EPILEPSY GRAND MAL
TIMOTHY COTHREL · 2026 · Case ID: A26039497
Summary
The Veteran, an Army veteran who served from January 1967 to January 1970, appeals a July 2025 rating decision. The appeal concerns service connection for brain symptoms, specifically seizures, claimed as secondary to scarring from a cyst removal surgery. The Veteran underwent surgery for a cyst on his skull, which resulted in scarring. Subsequently, he developed seizures, hydrocephalus, and a thalamic hemorrhage. The Veteran testified that he requested the surgery be performed at a VA facility but was referred to a non-VA surgeon. The Board noted inconsistencies in the dates of the surgery and vagueness regarding specific VA negligence claims, as well as the examiner's failure to clearly address foreseeability or specific negligent actions. However, the Board found it unnecessary to remand for further development or clarification. Instead, the Board granted service connection for the seizure disability based on secondary service connection principles. The Board relied on a May 2025 VA C&P exam which, despite some ambiguity, stated the seizures were "at least as likely as not" related to the Veteran's service-connected scarring. The Board applied the "but-for" causation standard and the benefit-of-the-doubt doctrine, finding the evidence approximately balanced and resolving doubt in the Veteran's favor. Service connection for the seizure disability secondary to scarring was granted.
Rationale
VA C&P exam found seizures at least as likely as not related to service-connected scarring; Board applied "but-for" causation standard; Benefit-of-the-doubt doctrine applied due to approximately balanced evidence
Full Decision Text
Citation Nr: A26039497 Decision Date: 04/28/26 Archive Date: 04/28/26 DOCKET NO. 251027-607245 DATE: April 28, 2026 ORDER Service connection for symptoms of the brain, including seizures, as secondary to scar tissue resulting from a service connected cyst removal is granted. FINDINGS OF FACT 1. While serving on active duty in the United States Army, the Veteran had surgery to remove a cyst from the back of his head. 2. The surgery left a deep and significant scar. 3. Many years later, the Veteran developed symptoms, including seizures. 4. But for the scarring caused by the removal of the cyst, the Veteran would not have developed the seizure disability. CONCLUSION OF LAW The criteria for service connection for seizures, and other symptoms of the brain, as secondary to scar tissue from cyst removal surgery are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the army from January 1967 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2025 rating decision of the Department of Veterans Affairs (VA). Subsequently, on October 21, 2025, the Veteran filed a VA Form 10182 Decision Review Request: Board Appeal Notice of Disagreement (NOD). He selected the Hearing Lane and was thereafter scheduled for a hearing before a Veterans Law Judge at the Board. See 38 C.F.R. §§ 20.300, 20.301. The hearing was held in April 2026. This decision is being prepared under the Board's "one touch" hearing program; a copy of the transcript of that hearing will be added to the Veteran's file in the normal course of business. 1. Service connection for symptoms of the brain, including seizures, as secondary to scar tissue resulting from a service connected cyst removal (recharacterization), is granted. The Veteran submitted a claim for service connection under 38 U.S.C. § 1151. In a nutshell, that statues authorizes service connection for a disability that developed after service when it is incurred as a result of negligence by VA personnel or by negligence in a VA medical facility, or it is an unforeseeable outcome of the medical treatment provided. Here, the Veteran brought his claim based on his belief the VA acted negligently and failed to meet standard of care in providing him with medical treatment during and after cranial surgery in 2017. The surgery was performed by a non-VA surgeon, but the Veteran testified he was referred to that surgeon by the VA even though he requested that the surgery be performed in a VA facility. He testified that he even offered to travel to a VA facility in either Los Angeles or Las Vegas. However, the VA refused his request. Following surgery, fluid collected in the Veteran's suboccipital area, which then led to a meningitis due to bacterial infection in the fluid. He was hospitalized for two weeks, and received intravenous antibiotics to counter the infection. He developed hydrocephalus in 2018, for which he received a shunt. The Veteran had a tonic-clonic seizure in December 2024. As a result of that seizure, he has since been on was placed on medication (i.e., 500 mg of levetiracetam twice per day). He has continued to experience dizziness, and in March 2025 suffered a thalamic hemorrhage. See July 2025 C&P Exam and June 2025 CAPRI record. At the outset of this analysis, the Board notes it is difficult to ascertain precisely what actions were taken by the VA in this case, as the medical opinions have not been particularly focused, and the Veteran has, understandably, sometimes had difficulty accurately placing events in the chronology. For example, the date of the Veteran's surgery is identified as taking place in January 2017, March 2017, and December 2017. See December 2024 VA 21-526EZ, June 2025 CAPRI record, and July 2025 C&P Exam, respectively. Additionally, the VA opinions failed to meaningfully address the issue of foreseeability, and the Veteran has been vague as to what specific actions taken failed to meet standard of care-e.g., whether it was using "antique" shunts, failure to put him on anti-seizure medication after surgery, placing the shunts incorrectly, failing to remove a shunt, failing to send him to a different the chronology. For example, the date of the Veteran's surgery is identified as taking place in January 2017, March 2017, and December 2017. See December 2024 VA 21-526EZ, June 2025 CAPRI record, and July 2025 C&P Exam, respectively. Additionally, the VA opinions failed to meaningfully address the issue of foreseeability, and the Veteran has been vague as to what specific actions taken failed to meet standard of care-e.g., whether it was using "antique" shunts, failure to put him on anti-seizure medication after surgery, placing the shunts incorrectly, failing to remove a shunt, failing to send him to a different neurologist, or some aspect of his post-surgical medical care. See June 2025 CAPRI record and April 2026 hearing testimony. However, the Board need not engage in a laborious, microscopic dissection of the records, nor is it necessary to remand this matter for better medical opinions, because based on other evidence, the Board may instead grant service connection on a basis other than 38 U.S.C. § 1151. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) (a claim for service connection is not exclusively limited to the theory propounded by the claimant). Specifically, when a service-connected disability causes another disability, the secondary disability is also service connected. Secondary service connection is established by showing three elements: (1) the existence of a disability that is already service connected; (2) the existence of another disability; and, (3) a cause-and-effect relationship between the service-connected, or primary, disability and the claimed, or secondary, disability. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection for the claimed disability requires that it have only a "but-for" relationship to the service-connected primary disability. That is, no matter how much or how many other factors contributed to the claimed disability, if removing the service-connected primary disability from the equation would have prevented the claimed disability, then the service-connected primary disability was an essential factor in the causal chain, and an actual or "but-for" cause of the claimed disability. As such, service connection for the claimed disability is established. Spicer v. McDonough, 61 F.4th 1360, 1363 (Fed. Cir. 2023) (establishing that actual "but-for" causation is the correct standard for evaluating claims for service connection; Burrage v. United States, 571 U.S. 204, 211-12 (2014) (explaining how the "but-for" standard is to be applied). A May 2025 VA medical opinion based on an examination of the Veteran, a review of the Veteran's medical history, and references to various medical literature concerning the link between brain injuries and seizures, concluded that the Veteran's seizures are likely due to scar tissue in his brain, gliosis. See May 2025 C&P Exam. Read in a vacuum, this assessment may be referring to new scarring caused by the 2017 surgery. However, in the medical opinion, the examiner explicitly stated that the Veteran's disability at least as likely as not resulted from "the Veteran's service connected condition." Id. The Veteran has been granted service connection for scarring from his 1969 surgery to remove a cyst from the back of his skull. See July 2025 Rating Decision Codesheet. The Board cannot rule out the possibility that the examiner was referring to new scarring, but that is not the proper allocation or standard for the applicable burden of proof. The Board is cognizant of the need to "stay in its lane," so to speak, and avoid invading the province of scientific or medical experts by exercising independent judgment on matters requiring specialized knowledge. See, e.g., Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In this instance, however, the Board is not substituting its judgment for that of an expert, but rather is determining which of two meanings to attach to a part of the expert's opinion. When adjudicating entitlement to service connection, where, as here, "positive proof" of the examiner's state of mind is not realistically possible given the current state of the evidence, the Board, as the finder of fact, will "resort to circumstances as the means of ascertaining the truth," and even when the circumstances are independently inconclusive, the Board may determine they "constitute conclusive proof" based on "their number and joint operation, especially when corroborated by moral coincidences." Slavers, 175 (1991). In this instance, however, the Board is not substituting its judgment for that of an expert, but rather is determining which of two meanings to attach to a part of the expert's opinion. When adjudicating entitlement to service connection, where, as here, "positive proof" of the examiner's state of mind is not realistically possible given the current state of the evidence, the Board, as the finder of fact, will "resort to circumstances as the means of ascertaining the truth," and even when the circumstances are independently inconclusive, the Board may determine they "constitute conclusive proof" based on "their number and joint operation, especially when corroborated by moral coincidences." Slavers, 69 U.S. 383, 401 (1865). See also, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (drawing inferences from the available evidence is the "heart" of the Board's adjudicatory role). As to the degree of certainty necessary to find in favor of an appellant, in American jurisprudence, there is a "wide spectrum" of standards, and the VA's "benefit-of-the-doubt" doctrine lies at "the farthest end of the spectrum...." Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). In other words, no party in any adjudicative forum is entitled to greater deference in establishing their case than a veteran who has brought an appeal to the Board. This is a matter not only of judicial precedent, but of legislative intent and moral logic: Congress created the benefit-of-the-doubt doctrine as a unique and intentionally generous standard of proof for veterans' appeals, in recognition of the nation's great debt to its veterans. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In operation, the benefit-of-the-doubt doctrine mandates a finding in favor of a claimant if the evidence before the Board is insufficient to eliminate all reasonable doubt concerning the existence of a disability, the occurrence of an in-service event, or the but-for cause-and-effect relationship between service and a claimed disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. "Reasonable doubt" is deemed to exist if the positive evidence for the claim and the negative evidence against it are at least "approximately balanced" or nearly equal." Id.; Ortiz v. Principi, 274 F.3d 1361, 1364-1365 (Fed. Cir. 2001). As a result, the Board denies an appeal only when the evidence as a whole is persuasively against the claim. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc); Mattox v. McDonough, 56 F.4th 1369, 1378-1379 (2023). In this instance, the Board finds given the reference to a service connected disability, the chances are nearly equal or approximately balanced that the examiner was referring to the scarring caused by the 1969 head surgery. As a result, the Board finds service connection for a seizure disability caused by "scarring" of the Veteran's brain is warranted. Finally, while the rating and assignment of a particular diagnostic code to the Veteran's symptoms is "downstream" issue at this point, the Board notes that the Veteran's seizures are currently controlled by medication, the AOJ is advised to take into account the law established by binding court precedents in Ingram v. Collins, 38 Vet. App. 130, 132 (2025) and Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), which govern when and how the effects of medication may be considered in the rating process, as well as to consider whether entitlement to any ancillary benefits, including a total disability for individual unemployability, has been raised by the record given the Board's grant of service connection in this decision. Timothy Cothrel Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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. unemployability, has been raised by the record given the Board's grant of service connection in this decision. Timothy Cothrel Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.