Citation Nr: 1046366 Decision Date: 12/13/10 Archive Date: 12/20/10 DOCKET NO. 05-28 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a seizure disorder due to head injury. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1975 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that his current seizure disorder is the result of being hit on the head with a torpedo hatch door while serving on the U.S.S. Valdez during service. He reports that he was knocked unconsciousness and saw colors, and that he began to have headaches, occasional dizzy spells, blackouts, and memory loss after that injury. The Veteran began to have "full blown" seizures in 1997 or 1998. See, e.g., January 2004 statement, October 2010 hearing transcript, VA treatment records. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). First, the Veteran has reported that he received emergency treatment, including a full work up for his claimed head trauma, at the Naval Hospital in Charleston, South Carolina, during service. The Veteran has reported that this injury occurred in December 1978 or January 1979, or in the winter of 1979. See, e.g., July 2009 statement. Although the Veteran testified at the hearing that the injury occurred in June or July 1979, which he believed was near the time of his discharge, the evidence of record reflects that he was actually discharged in January 1979. The Board notes that the agency of original jurisdiction (AOJ) requested and obtained records from the Naval Regional Medical Center in Charleston, South Carolina, in March 1979. These records were obtained in connection with the Veteran's previous claim for service connection for a right elbow injury, and they did not reflect any complaints or treatment for head trauma. However, this request specifically pertained to a right elbow injury in October 1978, and did not request any records pertaining to a head injury. As such, upon remand, the AOJ should attempt to obtain any treatment records from the Naval Regional Medical Center in Charleston, South Carolina, pertaining to a head injury for the period from November 1978 through the January 1979. All inpatient or outpatient records, including the results of any diagnostic studies, should be requested. The Veteran's DD Form 214 confirms that he served aboard the U.S.S. Valdez (FF-1096). As such, the AOJ should also request copies of any incident reports or deck logs from such vessel for the period from November 1978 through January 1979, as they may contain information related to the Veteran's claimed injury. Further, the Veteran has reported that he receives disability benefits from the Social Security Administration (SSA) for his seizure disorder. The AOJ requested copies of related records, but the last response from the SSA in February 2008 indicates that the request was forwarded to a "module" for further action, and it does not appear that any records or a definitive response were ever received. As such, upon remand, additional requests should be made, as necessary, for any determinations and medical records associated with the Veteran's SSA disability benefits. After all identified, available records have been obtained and associated with the claims file, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his claimed seizure disorder. The examiner should consider not only the medical evidence of record, but also the Veteran's lay statements as to the nature and timing of his claimed injury and symptoms. In this regard, the Board notes that the Veteran reported two previous head injuries for VA treatment purposes. In particular, the Veteran stated that his mother kicked him in the head at age 3, or that she "tried to kill him" and he had "intracranial damage," and also that he was hit by a door in the same place during service at approximately age 20. The provider opined that the Veteran had seizure disorder since age 30 likely due to a history of these two reported head traumas. See, e.g., records dated in April 2008, June 2008, May 2009. As such, the examiner should offer an opinion as to whether the Veteran had a preexisting condition due the reported child abuse and, if so, whether any preexisting condition was aggravated by service. If there is no preexisting condition, the examiner should offer an opinion as to whether the Veteran's current seizure disorder was incurred as a result of any incident during service, to include the reported head trauma in the winter of 1979. As there is evidence of head trauma prior to service, the Veteran should be provided notice as to the requirements to establish service connection based on aggravation of a preexisting condition, in compliance with the Veterans' Claims Assistance Act of 2000 (VCAA) and implementing regulations. Development and adjudication upon remand should reflect consideration of the competency of certain lay evidence. In particular, the Veteran is competent to testify that he sustained head trauma during service, as such issue is factual in nature. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Further, the Veteran is competent to testify to a lack of observable symptoms (such as headaches, dizziness, or memory loss) prior to service, continuity of such symptoms after in-service injury, and receipt of medical treatment for such symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Agency fact finders retain the discretion to make credibility determinations and weigh the lay and medical evidence submitted. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, competent lay evidence may be rejected only if it is deemed not credible, and lay evidence cannot be deemed not credible solely due to the absence of contemporaneous medical evidence. McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Buchanan, 451 F.3d at 1337. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VCAA- compliant notice as to the evidence and information necessary to establish service connection based on aggravation of a preexisting condition. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.304(b), 3.306. 2. Contact the Naval Regional Medical Center in Charleston, South Carolina, and request copies of any inpatient or outpatient treatment records, to include the results of any diagnostic studies, pertaining to a head injury for the period from November 1978 through the January 1979. If necessary, contact the National Personnel Records Center (NPRC), or other appropriate agency, and any source identified by the NPRC, to obtain any such records. 3. Contact the NPRC, the appropriate service entity, or any other appropriate agency, as necessary, and request copies of all accident reports and deck logs for the U.S.S. Valdez (FF-1096) for the period from November 1978 through January 1979. 4. Request copies of any determinations and medical records associated with the Veteran's SSA disability benefits, to include the initial claim and any periodic renewals of benefits. 5. All requests and all responses for the above-described records, including negative responses, must be documented in the claims file. Requests for records from Federal agencies, including service departments, military hospitals, and SSA, must continue until a determination is made that such records do not exist or any further efforts to obtain them would be futile. All records received must be associated with the claims file. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be notified of the unsuccessful attempts made, and allowed an opportunity to provide such records. 6. After completing the above-described development, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed seizure disorder. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is requested to respond to the following: (a) Did the Veteran have a preexisting condition relating to a seizure disorder prior to entering service in August 1975, to include as due to the reported head trauma at age 3? If so, was there a permanent increase in the severity of such condition beyond its natural progression as a result of service, to include the claimed head trauma from being hit by a hatch door in the winter of 1979? (b) If the Veteran's current condition did not exist at the time of his entry into active service, is it at least as likely as not (probability of 50% or more) that such condition was incurred during such service, to include as a result of the claimed head trauma from being hit by a hatch door in the winter of 1979? Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of both the lay and medical evidence of record. If an opinion as to any of these questions cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non- speculative opinion cannot be offered. 7. After completing any further development as may be indicated by any response received upon remand, readjudicate the claim based on all lay and medical evidence of record, with consideration of the competency of certain evidence as summarized above. All potential theories of service connection should also be considered. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, which addresses all relevant law and all evidence associated with the claims file since the last statement of the case. Allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examinations requested in this REMAND is to obtain information and/or evidence which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655 (2010), failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2010). _________________________________________________ C. TRUEBA 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) (2010).