Citation Nr: 1300203 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 05-35 645A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to a compensable rating for an inguinal hernia. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from February 1952 to December 1961 with periods of active duty for training (ACDUTRA) from July 25, 1981 to August 8, 1981 and from August 8, 1990 to August 24, 1990. The Veteran also served additional periods of Reserves service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Jurisdiction over the claims folder is currently held by the RO in St. Petersburg, Florida. In June 2007, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing is of record. This case was previously before the Board in October 2007, at which time the claim for service connection for a seizure disorder was reopened. The reopened claim was remanded along with the claim for a compensable rating for an inguinal hernia. The Veteran's case returned to the Board in September 2009 where the claim for service connection for a seizure disorder was denied and the claim for an increased rating was again remanded. The Veteran appealed the Board's September 2009 denial of the claim for service connection for a seizure disorder to the United States Court of Appeals for Veterans Claims (Court). In May 2010, the Court granted a Joint Motion for Remand (JMR), vacating the Board's September 2009 denial of the service connection claim. The appeal was returned to the Board and in December 2010 the Board again denied the claim. The Veteran appealed the December 2010 denial of his claim to the Court and another JMR was granted in May 2011. Both the claim for service connection and an increased rating were again remanded by the Board in October 2011. The claims have now returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Board sincerely regrets further delay in this case, but finds that a remand is once again necessary to ensure proper development of the record. First, the record indicates the existence of VA treatment reports that have not been associated with either the virtual or paper claims file. In January 2012, the Veteran was provided a VA examination to determine the nature and etiology of the claimed seizure disorder. The VA examiner concluded that a current seizure disorder could not be confirmed and referenced a November 2, 2010 neurological consultation performed at the Buffalo VA Medical Center (VAMC). Neither the Veteran's virtual or paper claims file contain a copy of the November 2010 treatment record identified by the VA examiner, and the January 2012 VA examination report does not contain a full copy of the neurological consultation. As VA has knowledge of the availability of a pertinent report in the possession of the VA, an attempt to obtain this report must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board also finds that the January 2012 VA examination is not adequate. The examination was conducted in response to the Board's October 2011 remand which ordered that the examiner should accept as true the Veteran's assertions that he incurred head injuries during service. The January 2012 VA examiner noted that he was unable to identify any in-service documentation of the Veteran's reported head injuries and appears to have not taken the Veteran's statements into account. The rejection of the Veteran's reported lay history by a VA examiner also served as the basis for the May 2011 JMR and a remand is therefore required to procure an addendum medical opinion. See Stegall v. West, 11 Vet. App 268 (1998) (Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Finally, the Veteran's representative argued in a July 2012 written brief that VA had failed to fully comply with Privacy Act requests submitted in March and May 2012. Upon remand, VA should ensure that the Veteran receives complete copies of any VA treatment records added to the record, a complete copy of the January 2012 VA examination, and copies of any additional medical opinions that are obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain complete records of treatment from the Buffalo VAMC for the period beginning November 2010, to include a copy of the November 2, 2010 neurological consultation referenced by the January 2012 VA examiner. Any records from the Tampa VAMC dating from February 2012 should also be obtained and added to the Veteran's virtual or paper claims file. 2. Return the claims file to the VA examiner who conducted the January 2012 VA seizure examination. The examiner should review the claims file and provide an addendum report that addresses whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that a seizure disorder is related to any incident of active duty service. For the purposes of the medical opinion, the examiner should 1) assume that the Veteran has been diagnosed with a current seizure disability; and, 2) accept as true the Veteran's assertions that he incurred head injuries associated with his in-service participation in boxing and an explosion that occurred on ship. A full rationale must be provided for all medical opinions that includes reference to specific evidence from the claims file. 3. After completing the above development, provide the Veteran and his representative with copies of the November 2, 2010 neurological consultation from the Buffalo VAMC, the January 2012 VA examination (including the medical opinion issued by the examiner), and any additional medical opinions that are obtained in response to the Board's current remand. 4. Then, readjudicate the claims on appeal. If the benefits sought on appeal are not granted, issue a supplemental statement of the case to the Veteran and his representative before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ MILO H. HAWLEY 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) (2012).