Citation Nr: 1305658 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 08-12 745 ) 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 service connection for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran had active service from September 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the Veteran's claim of service connection for a seizure disorder. In January 2008, the Veteran notified VA that he had moved to the jurisdiction of the RO in St. Petersburg, Florida. That facility retains jurisdiction over this appeal. This matter also is on appeal of a July 2008 rating decision issued by the RO in St. Petersburg, Florida, which denied, in pertinent part, the Veteran's claim of service connection for migraine headaches. In October 2011, the Board remanded these claims in order to provide the Veteran with his requested Travel Board hearing. In December 2012, he testified at the scheduled Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's paperless claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that, aside from the aforementioned transcript of the November 2012 hearing, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 While further delay is regrettable, the Board observes that further development is required prior to adjudicating the Veteran's claims for seizures and headaches. The Veteran alleges that he was hit by an unsecured hatch on his ship in 1967. He denied any loss of consciousness or any laceration to the head from this. The Veteran submitted a buddy statement indicating that a hatch hit the Veteran on the head during service. The Veteran's service treatment records reveal no complaints associated with his claimed headaches or seizures, and his 1969 separation examination was normal. The Veteran has reported to treatment providers and during his hearing that he does not recall having seizures during service. He further testified that his headaches and seizures began maybe a year or two after discharge from service. The Board finds such contention of questionable reliability considering his report to treatment providers that he has had the spells since childhood, and denied seizures in treatment records from 1999 and 2000. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The evidence of record notes no complaints of seizures or headaches in private treatment records dating from 1999 to 2004. Records from December 1999 and July 2000 noted the Veteran denying dizziness, loss of consciousness, transient ischemic symptoms or seizures. A December 2004 entry noted the Veteran had recently been diagnosed with seizures by Elmhurst Hospital. The Board notes records from this facility do not appear to be of record, and should be requested on remand. VA treatment records reflect treatment for the claimed seizures, although the records do suggest some question as to whether the Veteran actually suffers from true seizures. In an August 2006 neurological consultation, the Veteran reported that ever since childhood he has been having episodes of blurry vision that lasts from 10 to 15 minutes. He denied any loss of consciousness, incontinence, shaking, or confusion and can happen anytime. He denied that these occurred during service. An October 2006 record notes that a November 2004 EEG was consistent with focal cerebral lesion which may be epileptiform. The Veteran had an abnormal EEG in November 2006, with sharp waves identified in the bianterior temporal areas. In February 2008, a neurological consultation noted that while the Veteran has a prior diagnosis of seizures, his condition was less likely a seizure. The examiner diagnosed migraine headaches and dizziness. The Veteran has not been afforded a VA examination concerning his claimed seizures and headaches, nor has an opinion been requested. In light of the above, the Board finds that medical evaluations and opinions are necessary in order to decide this case. Thus, a remand is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that the most recent VA treatment records are dated in December 2008. The Veteran testified that he has received treatment at the Tampa and Pine Brook VA Medical Centers (VAMC). On remand, ongoing medical records related to the Veteran's claims should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for seizures and headaches since service. Specifically, the Veteran should be asked to provide a completed release form for Elmhurst Hospital, so that records pertaining to his diagnosis of seizures in 2004 can be obtained. After securing the necessary release for those records and any other relevant facilities identified, the RO/AMC should request any relevant records which are not duplicates of those already contained in the claims file. If any requested records are not available, the Veteran should be notified of such. The RO/AMC must also obtain treatment records related to the Veteran's seizures and migraines from the Tampa and Pine Brook VA Medical Centers, dating since December 2008. If requested records are unobtainable, the claims file should document such and the Veteran should be notified of the inability to obtain the records. 2. After the above has been completed and the records associated with the file to the extent possible, then, schedule a VA medical evaluation by a neurologist to obtain an opinion as to whether the Veteran's headaches and seizures are possibly related to service. The claims file must be reviewed by the physician. If the physician determines that an examination is needed to respond to the questions, one should be scheduled. a. Specifically, following review of the claims file, and if deemed necessary, examination of the Veteran, the physician should provide an opinion as to whether the Veteran actually suffers from a seizure disorder (characterized by the Veteran as spells of blurry vision that generally last 10 to 15 minutes), and whether he suffers from migraine headaches. The physician should explain the reasons for his/her opinion. b. The examiner is asked to opine whether the current claimed seizures and migraine headaches are more likely (greater than 50 percent probability), less likely (less than a 50 percent probability), or at least as likely as not (a 50 percent probability) related to his period of service, to include being hit on the head by a ship hatch without loss of consciousness or head laceration. In rendering the opinion, the examiner should address the significance of the Veteran's statements to treatment providers of having spells of blurry vision since childhood and that he had no such spells or headaches during service. If the examiner concludes that the Veteran's claimed seizures and/or migraine headaches existed prior to service, the examiner should indicate whether a hatch falling on his head permanently worsened the condition beyond normal progression. The physician should explain the reasons for his/her opinion. c. If no opinion can be rendered concerning this claim without resorting to mere speculation, the physician should explain why rendering an opinion is not possible or feasible. 3. After the above has been completed to the extent possible, readjudicate the claims in light of the additional evidence. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case, and provide an appropriate period of time to respond. Thereafter, return the case to the Board for further appellate consideration, if in order. 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. 2012). _________________________________________________ K. A. BANFIELD 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).