Citation Nr: 1301971 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 06-19 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a brain disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a May 2011 decision, the Board denied service connection for a brain disorder. The Veteran appealed the denial to the Court. By July 2012 Order, the Court vacated the Board's May 2011 decision and remanded the matter to the Board for compliance with instructions contained in a July 2012 Joint Motion for Remand of the appellant and the VA Secretary. The case has been returned to the Board for further appellate action. 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 Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran is seeking entitlement to service connection for a brain disorder. He initially asserted that his currently-diagnosed brain aneurysm had its onset in service or was otherwise etiologically related to his active service. However, he subsequently formulated the argument that his aneurysm pre-existed his active service and was aggravated by service. Service treatment records show that the Veteran was admitted in July 1963 for what was believed to be a seizure disorder. He had been observed to have experienced a 10 to 15 minute episode of tremors of both arms followed by a period of memory loss. He was referred for a neurological evaluation with a diagnosis of seizure disorder of unknown origin. The report of the July 1963 neurological examination, which included an electroencephalogram (EEG) and a 7-day observation period, was essentially negative. A similar seizure-like episode was reported in November 1963. However, a December 1963 neurological consultation was again negative. The examiner opined that it was possible that the Veteran was suffering from some type of hyperventilation syndrome. In June 1965, the Veteran was once again evaluated for symptoms similar to seizures. He was not diagnosed with any neurological disorder. Instead, it was observed that the usual sequence of events involved the Veteran being provoked by his shipmates and, rather than becoming aggressive, he would experience a hyperventilatory episode. The Veteran was not hospitalized, his health was not considered in any danger, and he was considered fit and competent to continue his duties. He was prescribed 10 milligrams of Librium. Significantly, the Veteran's July 1965 separation examination indicated that his neurologic state was within normal limits. The post-service medical evidence includes an October 1965 psychiatric evaluation that determined that the Veteran did not have a neurological disease, but that he suffered from a psychoneurotic disorder, anxiety reaction with episodes of hyperventilation. The examiner observed that the Veteran seemed to accept the fact that he was a nervous type, somewhat willing to accept that he had some type of seizure in service that was related to nervousness but less willing to accept the idea that he could have had epilepsy or some more serious cause of his seizures in service. When the Veteran underwent a VA psychiatric examination in June 2001, he provided a history of experiencing a seizure in service. He described rapid breathing at the time. There was no evidence of an active psychiatric or neurological problem at that time. In an August 2002 private MRI, the examiner noted under "Impression" that the Veteran had multiple lacunar infarcts that "predominantly involved the right pons and basal ganglia." The examiner also noted suspicion of an anterior communicating artery aneurysm. The Veteran underwent a private craniotomy in June 2003 for the clipping of an anterior communicating artery aneurysm. In an April 2005 private noncontrast CAT scan, the examiner noted the present aneurysm clip in the Veteran's anterior cranial fossa. The Veteran has reported that he suffered repeated seizures in service, and that he continued to experience neurological symptoms, such as tremors and blackouts, after he was discharged from service. The evidence in this case shows that the Veteran currently has a brain aneurysm, which satisfies the element of a current disability. There is also evidence in the service treatment records of neurological symptoms in service. Finally, although contemporaneous evidence of a brain disorder in the years following service is not of record; the Board finds that the Veteran's reports of in-service neurological symptoms that continued after his discharge provide evidence of continuity of symptomatology. The Parties believe that the reference to the Veteran potentially having epilepsy or some of other serious cause to his seizure represents positive evidence in his favor. Further, while the June 1965 in-service evaluation attributed the Veteran had a hyperventilatory episode and not a seizure, the Parties indicated that the examiner did not specifically state whether or not the earlier episodes in July and December 1963 were seizures. The Parties also note VA regulations recognize seizure disorders with mental health disorders, and that a diagnosis of a "true seizure disorder" is not necessarily required by VA regulations. Therefore, based on the foregoing and under direction of the Court, an opinion is needed to determine whether the Veteran's currently diagnosed brain disorder is related to service. 38 U.S.C.A. § 5103A(d) (West 2002). The Board notes that the Veteran was scheduled for an April 2005 neurological disorder VA examination, but failed to appear. No attempt was made to reschedule the examination. In the Joint Motion granted by the Court, the parties agreed that, as the Veteran showed good cause for his failure to appear for his previously scheduled examination. See 38 C.F.R. § 3.655 (2012). A remand is required so that the Veteran may be provided a VA medical examination. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the nature and etiology of any current brain disorder. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination report. Any indicated studies should be performed. The report must address the following matters: (a) Identify all current disabilities related to the brain, such a brain aneurysm, epilepsy, or seizures. (b) For all identified disabilities of the brain is it undebatable that the condition(s) existed prior to the Veteran's active service? (c) If it is determined that it is undebatable that a brain disorder had its onset prior to active service, did it increase in severity during service? (d) If it is determined that a preexisting brain disorder increased in severity during the Veteran's active service, is it also undebatable that such disability was NOT aggravated beyond its normal progression during his active duty service? The examiner should be advised that temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. (e) If it is determined that the Veteran's brain disorder did not preexist his active service, state where it is at least as likely as not (a probability of 50 percent or greater) that the identified disorder had its onset in service or within one year of service or is otherwise etiologically related to his active service. (f) If it is determined that the Veteran's brain disorder did not preexist his active service and was not caused by service, is it as likely as not that the Veteran has a brain disorder, to include a seizure disorder, that is associated (due to) but separately related to his service connected psychiatric disorder (anxiety reaction with hyperventilation)? Does it represent a psychomotor epilepsy as contemplated by 38 C.F.R. § 4.122? The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the examiner rejects the Veteran's reports, the examiner should provide a rationale for doing so. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. If the benefits sought on appeal are not granted, a supplemental statement of the case should be issued. The case should be returned to the Board, if otherwise in order. 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. 2012). _________________________________________________ MICHAEL A. HERMAN 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).