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).