Citation Nr: 1109155 Decision Date: 03/08/11 Archive Date: 03/17/11 DOCKET NO. 05-29 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a respiratory disorder as a residual of asbestos exposure. 2. Entitlement to service connection for a seizure disorder, including as secondary to service-connected headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Sykes, Associate Counsel INTRODUCTION The Veteran served on active duty January 1999 to January 2002 and from March 2003 to February 2004, during when he served in Iraq in support of Operation Enduring Freedom. This appeal to the Board of Veterans' Appeals (Board) is from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a prior November 2009 Board decision, the claims of entitlement to service connection for a left knee disorder, a right elbow disorder, a left elbow disorder, and a higher initial rating for tinea veriscolor, were denied. In that same decision, the Board remanded the claims of service connection for a respiratory disorder, including due to exposure to asbestos, and a seizure disorder to the RO via the AMC for additional development and consideration. The Veteran's seizure disorder is remanded to the RO via the AMC. VA will notify the appellant if further action is required. FINDING OF FACT The preponderance of the evidence indicates that the Veteran was not exposed to asbestos during service, and there is no competent and credible evidence of an etiological link between any current respiratory disorder and service. CONCLUSION OF LAW The Veteran does not have any asbestosis or any other respiratory disorder that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1117, 1154 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS In the interest of clarity, the Board will initially discuss whether the claim has been properly developed for appellate review. The Board will then address the claim on the merits, providing relevant VA case law, regulations and statutory provisions, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a SOC or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court could conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in March and May 2004, January 2005, November 2007, December 2009 and May 2010. The letters informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining supporting evidence. Note also that the December 2009 letter complied with Dingess by discussing the downstream disability rating and effective date elements of the claim. And of equal or even greater significance, after providing that additional Dingess notice in December 2009, the AMC readjudicated his claims in the November 2010 SSOC- including considering any additional evidence received in response to that additional notice. See again Mayfield IV and Prickett, supra. So any arguable timing defect in the provision of that additional notice has been rectified. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records (STRs), VA treatment records and associated lay statements provided by the Veteran. In addition, the RO afforded him two VA examinations in July 2004 and June 2010 to determine whether he had a respiratory disorder, including due to asbestos exposure that is attributable to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Finally, in obtaining the opinion in the June 2010 VA compensation examination, the Board is satisfied as to substantial compliance with its November 2009 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and appellate review may proceed without prejudicing the Veteran. II. Entitlement to Service Connection for a Respiratory Disorder, Including Due to Exposure to Asbestos The Veteran claims he is entitlement to service connection for a respiratory disorder because he claims he was exposed to asbestos while working to rebuild old barracks in Iraq. He states he also lived in those barracks. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish "direct" service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. A "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Effective September 29, 2010, for purposes of 38 C.F.R. § 3.317, presumptive service connection is warranted for Brucellosis; Campylobacter jejuni; Coxiella burnetii (Q fever); Malaria; Mycobacterium tuberculosis; Nontyphoid Salmonella; Shigella; Visceral leishmaniasis; and West Nile virus. 75 Fed. Reg. 59,968, 59,971 (September 29, 2010) (to be codified at 38 C.F.R. § 3.117(c)(2)). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (BVA has a duty to assess). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). As noted in the November 2009 Board remand, the RO obtained VA treatment records that show complaints of shortness of breath, dyspnea, and chest pain. A March 2005 record indicates that a chest X-ray is necessary to diagnose the Veteran's possible lung condition. Thereafter, according to the June 2010 VA compensation examiner, the Veteran has a current diagnosis of mild restrictive lung disease. Therefore, there is no disputing the Veteran has met the threshold preliminary requirement of a current diagnosis. Accordingly, because the medical evidence shows that Veteran's respiratory disorder has been diagnosed as restrictive lung disease, a diagnosed disability, and because this is not an illness that the Secretary has determined warrants presumptive service connection, service connection for restrictive lung disorder under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board must consider whether service connection may be granted on another basis. Consequently, the determinative issue in this case is whether the Veteran's diagnosed respiratory disorder is the result of exposure to asbestos during or coincident with his military service, as he is alleging. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Unfortunately, it is in this critical aspect the Veteran's claim fails. Concerning in-service incurrence, the only evidence of a respiratory disorder is in September 1999, when the Veteran presented with complaints of chest congestion and a cough, which was diagnosed as a chest cold. However, the Veteran's STRs fail to note any additional complaints, treatments or a diagnosis of a respiratory disorder. Therefore, the Veteran has failed to meet the requirement of showing in-service incurrence of his current disability. Of equal or even greater significance, there is simply no medical evidence of record etiologically linking the Veteran's current respiratory disorder-restrictive lung disease-to his military service. As an initial matter, following his discharge from service, the Veteran underwent a Gulf War Syndrome and a general medical VA compensation examinations in July 2004. The Veteran's only complaint concerning a respiratory disorder was described as a chronic cough. However, neither examiner determined there was a respiratory disorder. Further, the Veteran's VA treatment records from August 2004 to May 2008 do not reflect any complaints or treatment for respiratory disorders. In fact, the only opinion concerning the etiology of the Veteran's disorder was rendered by the June 2010 VA compensation examiner, who diagnosed the Veteran with his current disorder, mild restrictive lung disease. The examiner specifically opined that the Veteran's respiratory disorder was "less likely as not caused by or a result of military service." Further, the VA examiner provides competent evidence specifically discounting the notion that the Veteran's respiratory disorder is due to his military service by stating that the more likely cause of the Veteran's condition is his significant exposure to coal mines post-service, due to his occupation as a heavy equipment operator/ truck driver in that field. The examiner's statements specifically discount the notion that his respiratory disorder is in any way related to his military service by identifying a different source as the cause of the problem. The Board also has considered the Veteran's own statements and those submitted in support of his claim relating his respiratory disorder back to his military service. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court addressed lay evidence as potentially competent to support presence of disability, during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. But the Court in Buchanan went on to note that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. And, here, the Veteran is only competent to testify to his symptoms (chest congestion, coughing), as he lacks the expertise needed to render a medical diagnosis or medical nexus opinion ascribing these symptoms to a particular condition and, in turn, to his military service. See 38 C.F.R. § 3.159(a) (2010). Unlike, for example, pes planus (flat feet), tinnitus (ringing in the ears), a broken arm or separated shoulder, or varicose veins, etc., the type of respiratory disorder at issue - namely, mild restrictive lung disease, is not readily capable of lay diagnosis or probative (competent and credible) lay opinion on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Accordingly, the Board finds that service connection for the respiratory disorder on a direct incurrence basis is not warranted. Turning to whether the Veteran may be entitled to service connection on a presumptive basis, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter 2, section C, paragraph 9 (Jan. 7, 2007) ("VA Manual"). The date of this amended material is December 13, 2005. Also, an opinion by VA's Office of General Counsel (OGC) discussed the proper way of developing asbestos claims. See VAOPGCPREC 4-2000 (Apr. 13, 2000). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id., at Subsection (a). The Manual also lists some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id., at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id., at Subsection (b). Inhalation of asbestos fibers can lead to a non-exclusive list of asbestos related diseases/abnormalities: fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id., at Subsection (b). The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. VA Manual, paragraph 9(d). The extent and duration of exposure to asbestos is not a factor for consideration. Id., at Subsection (d). Thus, an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines further provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. VA Manual, paragraph 9(e). Rating specialists must develop any evidence of asbestos exposure before, during, and after service. A determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). The Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). If the evidence supports a conclusion that the Veteran's current disability, while caused by asbestos exposure, is due to intervening post-service exposure, the opinion must be very specific explaining the basis for this finding. See McGinty, supra. In this particular case, however, there is no record of any asbestos exposure in service. While, as stated the Veteran has alleged that he worked on old barracks containing asbestos and also lived in those barracks, an April 2010 letter from the Department of the Army stated that there was no information to support the Veteran's contentions. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event actually occurred during service). Moreover, the diagnosis he has received has not been associated with said exposure, rather, as mentioned, to other unrelated factors, including his post-service occupation. Therefore, the Board finds that service connection is not warranted on a direct or presumptive basis. The preponderance of the evidence is against the claim, so there is no reasonable doubt to resolve in the Veteran's favor, and this appeal must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a respiratory disorder, including as due to asbestos exposure, is denied. REMAND The Veteran contends that he has a seizure disorder due to his in-service head injury, incurred when he fell off a truck and required 5 stitches. Further, the Veteran also states he was in motorcycle accident in September 2001, following his service, during which time he lost consciousness. Alternatively, the Veteran claims that his seizure disorder is due to his already service-connection headache disorder, which is a result of the in-service head injury. Regardless, when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). As noted in the November 2009 Board remand, the Veteran's STRs show he had complaints of seizures following that September 2001 motorcycle accident and, consequently, was referred to neurology for further clinical evaluation and work up; however, he was not diagnosed as having a seizure disorder. Following his discharge from service, the Veteran underwent Gulf War Syndrome and general medical VA compensation examinations in July 2004. During those examinations, the Veteran reported that he suffered from seizures following his motor vehicle accident in service. However, neither examiner diagnosed the Veteran with a seizure disorder. Post-service VA treatment records dated from August 2004 to May 2008 also do not show a diagnosis of a seizure disorder. An August 2004 treatment record indicates that a head CT scan was normal, so presumably did not reveal any findings indicative of a seizure disorder. However, the Board notes his diagnosis of a mild traumatic brain injury (TBI) according to the January 2008 TBI screening. However, at that time, the Veteran did not include seizures in his list of symptoms. In fact, the Veteran did not state he ever suffered from a seizure during his TBI screen. Similarly, the June 2010 VA compensation examiner conducted a neurological examination. The physical examination failed to reveal any neurological abnormalities. Additionally, the Veteran's cognitive screening was normal and his head CT was without contrast. As a result of these clinical findings, the VA examiner specifically determined that the "Veteran does not have any evidence of a current seizure disorder." In light of the Veteran's continued complaints and the state of the record, further development is necessary to determine whether the Veteran has a seizure disorder that is related to service, to include as due to an undiagnosed illness related to his service in Iraq. Unfortunately, other than the Veteran's report of having seizures, there is no independent lay or medical evidence of this sign or symptom. See 38 C.F.R. § 3.317(a)(3.) Accordingly, this case is REMANDED to the RO for the following action: 1. Provide the Veteran with the laws and regulation relating to claims of service connection based on service in the Southwest Asia theater of operations, e.g., 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. 2. Inform the Veteran that he may submit additional lay or medical evidence showing that he has seizure disorder, including in the form of lay statements based on observations by another person, such a friend, family member, fellow service member or co-worker. 3. After associating any pertinent, outstanding records with the claims folder, the Veteran should be afforded an appropriate VA examination. The claims folder should be provided to and reviewed by the examiner in conjunction with the examination. The examiner should review the relevant evidence in the claims file in conjunction with the examination, to include the service and post-service treatment records and diagnostic studies. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran has a seizure disorder that is related to or had its onset in service, to include during or as a consequence of his service in Iraq. Alternatively, the examiner must state whether the Veteran's symptoms cannot be attributed to a known clinical diagnosis. Finally, the examiner must state whether any seizure disorder is proximately due to or the result of his service-connected migraine headaches, including as a residual of his in-service head trauma. In offering each of these impressions, the examiner must acknowledge and discuss the Veteran's lay report of the onset of each of his problems. The examiner must provide complete rationale for all conclusions reached, which must be set forth in a legible report. 5. Then readjudicate the remanded claim in light of all pertinent evidence and legal authority, to specifically include 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations and affords the appropriate time period to respond. Then, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2009). ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs