Citation Nr: 1302004 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-30 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a seizure disorder, to include as a residual of malaria. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran had active military service from June 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO in November 2011. A transcript of the proceeding is in the claims file. At the hearing, the Veteran submitted additional evidence along with a waiver of RO review in accordance with 38 C.F.R. § 20.1304 (2012). 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 In March 2008, the Veteran submitted a claim for entitlement to service connection for a seizure disorder, to include as a residual of malaria. After the RO denied the Veteran's claim in June 2008, the Veteran perfected an appeal, and the claim was certified to the Board for appellate review. Finding that the medical evidence of record was insufficient to make a decision on the claim, the Board remanded the Veteran's claim in March 2012 for further development. Specifically, the Board requested that the RO schedule the Veteran for a VA examination to determine the nature and etiology of any seizure disorder. The record demonstrates the Veteran underwent VA examination in March 2012. Following the March 2012 VA examination, VA treatment records dated from May 2008 to March 2012 were obtained and added to the Veteran's Virtual VA electronic record. The Board observes that multiple VA treatment records dated in December 2008 indicate the Veteran had submitted a claim for disability benefits from the Social Security Administration (SSA) on the basis of his seizure disorder and its effect on his employability. Additionally, the evidence of record includes the Veteran's statements that he is unable to maintain employment as the result of his seizure disorder. In this respect, the March 2012 VA examination reflects that the Veteran has been unable to work since 2006 as the result of cognitive impairment due to intractable epilepsy. The United States Court of Appeals for Veterans Claims has held that where there is notice the Veteran is receiving SSA disability benefits, VA has a duty to acquire a copy of the decision granting such benefits and the supporting medical documents when there exists a reasonable possibility that the records could help the Veteran substantiate the claim for benefits. Murincsak v. Derwinski, 2 Vet. App. 363, 372-3 (1992); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Although VA is not obligated to follow a determination made by SSA, these records may be relevant to a matter currently on appeal. Because SSA records are potentially relevant to the Board's determination regarding the Veteran's claim for entitlement to service connection for a seizure disorder, and because under the facts here presented it is not abundantly clear to the Board that SSA records are not potentially available, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); see also Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from SSA, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight). Therefore, this appeal must be remanded to clarify if, in fact, SSA disability benefit records are available. Finally, if relevant evidence not already of record is obtained pursuant to this remand, the Board finds the March 2012 VA examination inadequate for purposes of determining service connection. Under those circumstances, the VA examiner will not have had the opportunity to consider the relevant records. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, in the event additional records are acquired that are relevant to the Veteran's claim and not already of record, the RO should send the Veteran's claims file, including any relevant records obtained pursuant to this remand and all relevant records from the Veteran's Virtual VA electronic record, to the VA examiner who performed the March 2012 VA examination for an addendum opinion based on the evidence of record in its entirety. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should contact the Veteran to confirm whether or not he has applied for SSA disability benefits. In the event that the Veteran responds in the affirmative, the RO/AMC should contact SSA and request all documents pertaining to the Veteran, to specifically include a copy of any decision that awarded or denied disability benefits and all medical records upon which the SSA based its decision. 2. Thereafter, the Veteran's claims file, to include any relevant records obtained pursuant to this remand, and all relevant records from the Veteran's Virtual VA electronic record, should be forwarded to the March 2012 VA examiner to provide an addendum opinion, or if the March 2012 VA examiner is unavailable, forwarded to a suitable substitute clinician for a nexus opinion. If the March 2012 VA examiner is unavailable, or in the event the examiner desires to further examine the Veteran, the Veteran should be afforded an additional VA examination at the applicable VA medical facility to determine the nature and etiology of his seizure disorder. After a thorough review of all the evidence of record, the examiner should answer the following question and identify the basis for the opinion provided: Is it at least as likely as not (i.e. is there a 50/50 chance), that the Veteran's seizure disorder is causally related to service, to include as a residual of an intestinal parasite or residual of malaria with history of one-week fever that resolved, and/or a history of a skull laceration that required stitches? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should set forth a complete rationale for all opinions expressed and conclusions reached in a legible report. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative, including whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. 3. Thereafter, re-adjudicate the Veteran's claim for entitlement to service connection for a seizure disorder, to include as a residual of malaria. If any benefit sought on appeal is not granted to the fullest extent, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. 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). 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). _________________________________________________ U. R. POWELL 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).