Citation Nr: 1237406 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 08-13 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran Service Representative ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active military duty from July 1967 to August 1969. The appeal comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A hearing was held before the undersigned Veterans Law Judge in August 2012 at the RO in Houston Texas. The Veteran did not appear, but his accredited representative spoke on his behalf in accordance with 38 C.F.R. § 20.701. A transcript of this hearing is associated with the claims file. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain a VA examination. Remand is required to provide the Veteran with a VA examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence 'indicates' that there 'may' be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran claims that he has a chronic seizure disorder and that its onset was during military service in Vietnam. The Veteran has asserted in his April 2008 VA Form 9 and an August 2008 statement that his initial seizure attack occurred in Vietnam while in the Field Operating Area and that he was medically evacuated to a field hospital at Phu Bai. In these statements, the Veteran has also asserted that he was treated for this condition at the VA Medical Center in Detroit in 1970. Last, the Veteran stated in his April 2008 VA Form 9 that the initiating events are unknown and that this condition is chronic. The Veteran's service treatment records (STRs) show that he was treated in October 1968, at a field hospital in Vietnam for acute muscle spasms of the jaw and tongue muscles. It was reported that they had occurred twice in two days and that each time they occurred it lasted for three hours. The Veteran was provided with medication for relief. A review of VA medical records reveals a November 1971 treatment note in which it was mentioned that the Veteran, while being treated for an inguinal hernia, developed a peculiar type of spasm on his left side. He was then transferred to the neurology department for a work-up for possible seizures. No result or diagnosis was provided. Although the Veteran was not diagnosed with a seizure disorder in service, he displayed symptoms consistent with one, such as the episodes of spasms. Further, the Veteran continued to experience symptoms of spasms post service as seen in the November 1971 VA treatment note. Last, the Veteran has stated that he believes his condition is chronic. As there is evidence of symptoms of disability, medical treatment records and lay testimony of in service events relating to a possible seizure disorder, and an indication that the claimed disability may be associated with the in-service event or injury, a VA examination is warranted. As such, the Veteran should be provided with an examination in order to determine the existence and etiology of his claimed seizure disorder in light of his medical record and lay statements. Additionally, as this case must be remanded for the foregoing reason, any recent VA treatment records should also be obtained. The Board observes that the Veteran has received VA treatment for possible seizures and records of his VA care, dated since February 2012, have not been associated with the claims file. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain current VA records since February 2012. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate in-person examination to determine the existence and etiology of his claimed seizure disorder. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. In particular, the examiner must determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a current seizure disorder. If the examiner determines that there is a current seizure disorder, then the examiner must determine whether it is at least as likely as not that the episodes of spasms during the Veteran's military service were symptoms of a seizure disorder. Last, if there is a finding that the Veteran experienced symptoms of a seizure disorder in military service, then the examiner must offer a nexus opinion of whether it is as least as likely as not that the seizure disorder in service is related to the current seizure disorder. 3. Review the opinion to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Appellant and his representative. After the Appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. 2011). _________________________________________________ J. A. MARKEY 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) (2011).