Citation Nr: 0813189 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-17 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a seizure disorder, to include as secondary to a service-connected head injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The veteran served on active duty from April 1987 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claim for service connection for a seizure disorder, to include as secondary to a service-connected head injury. In a March 2008 statement, the veteran, through his representative, appears to have raised a new claim of entitlement to service connection for a psychiatric disorder, secondary to his service-connected head injury. The Board refers this matter to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Additional development is needed prior to further disposition of the claim. The veteran contends that his currently diagnosed seizure disorder is traceable to an October 1988 motor vehicle accident in which he suffered a head injury while in service. The veteran was granted service connection for this head injury, effective on the date of separation from service, April 27, 1993. In a March 2005 statement, the veteran's osteopathic physician, D. A. J., D.O., indicated that he had treated the veteran since August 1984. The private physician stated that in his opinion, it was at least as likely as not that the veteran's seizures resulted from the October 1988 motor vehicle accident. In submitting this opinion from his private physician, the veteran attached a consent form authorizing VA to obtain his private medical records from this treating provider. However, it does not appear that these records have been requested and associated with the veteran's claims file. Because these records are applicable to the veteran's claim for service connection, they are relevant and an attempt to obtain them should be made. Additionally, while the veteran's private physician indicated in his March 2005 statement that the veteran's seizures were related to the October 1988 motor vehicle accident, the physician did not provide a rationale for his opinion. Nor did the physician indicate that he had reviewed the veteran's claims folder, including his service medical records and VA treatment records. The Board therefore finds that the physician's opinion is too speculative to warrant a grant of service connection. To ensure a thorough examination and evaluation, the veteran's seizure disorder must be viewed in relation to its history. 38 C.F.R. § 4.1 (2007). Therefore the claim must be remanded for a VA examination with a review of the claims folder. The Board notes that the veteran has already undergone a VA examination, in which he reported that he had suffered occasional seizures as a child and that his seizures had their adult onset in 2001. Magnetic Resonance Imaging of the veteran's brain showed no abnormalities and his mental status was assessed to be superior. On that basis, the VA examiner concluded that it was less likely than not that the veteran's current seizure disorder was related to the October 1988 motor vehicle accident he underwent in service. Significantly, however, the VA examiner did not reconcile his opinion with the opinion of the veteran's private physician finding a causal relationship between the October 1988 motor vehicle accident he suffered in service and his current seizure disorder. Accordingly, the Board finds that a remand for an additional etiological opinion is in order to fully and fairly assess the merits of his claim. Accordingly, the case is REMANDED for the following action: 1. Using the signed VA Form 21-4142 (Authorization and Consent to Release Information) provided by the veteran in March 2005, obtain and associate with the claims file all private medical records from D. A. J., D.O., dated from August 1984 to the present. All attempts to secure these records must be documented in the claims folder. 2. After these private medical records have been obtained, schedule the veteran for a VA neurology examination with the appropriate specialist for the purpose of ascertaining the etiology of his seizure disorder. The claims folder, should be sent to the examiner for review and the examination report should note that review. In rendering these determinations, the VA examiner should specifically attempt to reconcile the opinion with any contrary opinions in the record, including the March 2005 private medical opinion relating the veteran's seizure disorder to his October 1988 motor vehicle accident and the July 2005 VA examiner's opinion negating this correlation. The examiner should provide an opinion as to the following: a) Is it as likely as not (50 percent probability or greater) that the veteran's current seizure disorder is etiologically related to his period of active service, including the October 1988 motor vehicle accident in which he incurred a head injury? b) Is it as likely as not (50 percent probability or greater) that the veteran's current seizure disorder is due to his service-connected head injury? c) Is it as likely as not (50 percent probability or greater) that the veteran's current seizure disorder was aggravated or permanently worsened by his service-connected head injury? 3. Then, readjudicate the claim. If the decision remains adverse to the appellant, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).