Citation Nr: 1304418 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-38 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Angie Thompson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to August 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. A Board hearing was held before the undersigned Veterans Law Judge in July 2012 at the RO. A transcript of the hearing is of record. Immediately prior to the hearing, the Veteran submitted a written statement from his sister, along with a waiver of the RO's initial consideration of this evidence. The issues of entitlement to service connection for undiagnosed muscle pain due to Gulf War Syndrome and an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD), have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary prior to final adjudication of the Veteran's claim of entitlement to service connection for a seizure disorder. The Veteran contends that his seizure disorder is related to his military service. Specifically, he alleges that, although he was not diagnosed with a seizure disorder until after service, symptoms began at the time of an in-service head injury in 1984. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of a seizure disorder. Moreover, there is no documentation of an in-service head injury in 1984 or otherwise. In a January 1984 medical history form, the Veteran reported sustaining a head injury while playing football, which caused him to become unconscious; however, the examining physician noted that there were no sequelae. A history of both conditions were also denied at separation. In addition, the Veteran was found "normal" on clinical evaluation of all relevant body systems at both entrance (January 1984) and separation (August 1988). An April 1991 VA treatment record shows an assessment of seizure disorder, and subsequent private treatment records document ongoing treatment for a seizure disorder beginning in 2004. A November 2005 private treatment record also notes that the Veteran was seizure-free for several years on Dilantin, which had been recently discontinued by the Veteran's neurologist. Thereafter, he began to have seizures again, and the Dilantin regime was reinstated. A November 2005 VA treatment record shows that the Veteran's wife called regarding treatment for the Veteran through the VA Medical Center in Huntington, West Virginia. Specifically, she indicated that the Veteran's private doctors suggested that there was a possibility that his seizures may be related to his military service because the Veteran was working around radar during service. During the July 2012 hearing, the Veteran testified that he had his first "spell," fell, and hit his head in 1984 and that a similar incident occurred in 1988. See Board Hearing Tr. at 5-6, 10. He stated that first sought treatment for this symptomatology in 1991, although he testified that he experienced spells between 1988 and 1991. See Board Hearing Tr. at 10-11. The Veteran also indicated that the seizures increased in frequency and now occur about two to three times each week. See Board Hearing Tr. at 7-8, 10. He further testified that, while he saw private doctors for treatment, they told him that the etiology of the disorder is unknown. See Board Hearing Tr. at 12. In the written submission from the Veteran's sister received the day of the Board hearing, she recalled the Veteran having a spell in August 1988, after he returned home from service. She thought that the spell was a seizure, and she said the symptoms were similar to those that the Veteran described experiencing during service in a letter. See Board Hearing Tr. at 3. VA's duty to assist requires that a VA medical examination be provided or medical opinion obtained when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this 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 the Veteran's service. 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 (2006). In this case, the Veteran testified that he had two in-service spells and a related in-service head injury in 1984, and his sister submitted a written statement indicating that the Veteran had a spell in August 1988 that was similar to the one he described to her earlier while in service. In addition, the Veteran has a current diagnosis of a seizure disorder with a history of symptomatology and treatment. However, no medical opinion has been obtained regarding the etiology of the Veteran's seizure disorder. In light of the above, the Board finds that the evidence at least suggests that the current seizure disorder may be related to active duty, thereby satisfying the low threshold of McLendon. Therefore, the Veteran should be afforded a VA examination in this case to obtain a medical opinion addressing the nature and etiology of the Veteran's seizure disorder. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his seizure disorder. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. 2. After obtaining any identified and outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any current seizure disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that, at the time of his enlistment, the Veteran reported having a medical history of a pre-service head injury causing him to become unconscious; however, the examiner noted that there was no sequelae, and a related disorder was not noted on the clinical evaluation. Therefore, the Veteran is presumed sound upon entrance. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current seizure disorder manifested in service or is otherwise causally or etiologically related to his active duty service. In rendering his or her opinion, the physician is asked to specifically consider the Veteran's statements of in-service symptomatology, as well as the Veteran's private physicians' treatment records and VA treatment records. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 3. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).