Citation Nr: 0813920	
Decision Date: 04/28/08    Archive Date: 05/08/08

DOCKET NO.  06-12 419	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUE

Entitlement to service connection for epilepsy. 


REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

Ann-Monique Clark, Associate Counsel


INTRODUCTION

The veteran had active service from March 1959 to January 
1962. 

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from a rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in San Diego, 
California. 

In addition to the claim of entitlement to service connection 
for epilepsy, the veteran had also appealed a denial to a 
claim of entitlement to service connection for Hashimoto's 
disease.  However, in an April 2006 correspondence, the 
veteran withdrew his appeal as to the service connection 
claim for Hashimoto's disease. As such, the only issue 
remaining for appellate consideration is that of entitlement 
to service connection for epilepsy.

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if further action is required.


REMAND

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

In the present case, the veteran is claiming entitlement to 
service connection for epilepsy or a seizure disorder.  With 
respect to this claim, the Board finds that additional 
development is necessary to satisfy VA's obligations under 
the VCAA, for the reasons discussed below.

The Board notes that additional evidence has been received 
since the case was certified for appeal. This evidence 
consists of an email printout from the veteran to his 
representative, regarding recent VA treatment, which 
allegedly shows diagnoses of epileptic seizures. Although the 
veteran submitted a waiver of regional office consideration 
along with this printout, the VA treatment records themselves 
have not yet been obtained and are not part of the record.  
The Board is therefore bound to return the record to the RO 
to obtain and initially consider the additional evidence. 
DAV, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 
(Fed. Cir. 2003).

Once obtained, if these records do reflect a current 
diagnosis referable to epilepsy or other seizure disorder, a 
VA examination should be scheduled to determine the etiology 
of the veteran's symptoms.  In this regard, it is noted that 
VA's duty to assist includes a duty to provide a medical 
examination or obtain a medical opinion when it is deemed 
necessary to make a decision on the claim. 38 U.S.C.A. § 
5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); 
McLendon v. Nicholson, 20 Vet. App. 79 (2006).


Accordingly, the case is REMANDED for the following action:

1.  Contact the records department at the 
VA Medical Center in La Jolla, 
California, and request any records of 
treatment pertaining to the veteran from 
January 2007 to the present.  If it is 
determined that such records have been 
retired to the Federal Records Center or 
elsewhere, then perform any necessary 
follow-up requests to obtain them. Any 
negative search results must be noted in 
the claims file.
 
2.  If the above records, or other 
competent evidence, shows a current 
diagnosis of epilepsy or seizure 
disorder, then schedule the veteran for a 
VA examination.  The VA examiner is asked 
to provide an opinion as to whether it is 
at least as likely than not that the 
current diagnosis of epilepsy/seizure 
disorder is causally related to service. 
Any opinion offered should be accompanied 
by a clear rationale consistent with the 
evidence of record.


3.  Upon completion of the above, 
readjudicate the issue on appeal.  If any 
benefit sought on appeal remains denied, 
the veteran should be furnished an 
appropriate supplemental statement of the 
case and be provided an opportunity to 
respond.  Thereafter, the case should be 
returned to the Board for further 
appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
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 of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




_________________________________________________
ERIC S. LEBOFF
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).