Citation Nr: 1310563 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-17 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a seizure or "blackout" disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD) or traumatic brain injury (TBI) residuals. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2000 to January 2003 and from October 2004 to January 2006, with additional reserve service. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A review of the Virtual VA paperless claims processing system reveals no additional evidence relevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran claims that he has a seizure disorder, manifested by blackout spells, related to his service-connected PTSD or TBI. Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to (1) obtain outstanding VA treatment records and (2) obtain an addendum opinion to the September 2009 VA examination. First, remand is required to attempt to obtain relevant VA treatment records. The VA treatment records associated with the claims file show that the Veteran was seen for complaints of blackouts beginning in February 2009. The Veteran described having blackout spells lasting from three hours to all day and occurring three times per week. The Veteran further described his symptoms as not losing consciousness or the ability to conduct simple motor skills, but having limited awareness and memory. His treating physician ordered the Veteran not to drive for six months and administered Gabapentin, a drug given for seizures. In March 2009, the Veteran was administered an electroencephalography (EEG), which showed no evidence of neuronal dysfunction and no epileptiform discharges, but did not exclude the diagnosis of epilepsy. In an April 2009 treatment note, it was indicated that the Veteran was still taking Gabapentin and had not experienced any black outs. In a May 2009 treatment note, it was indicated that the Veteran had been experiencing monthly blackouts lasting at least one hour or more. However, in a June 2009 treatment note, the Veteran indicated that he had not experienced any blackouts since he began taking medication in February 2009. In an August 2009 treatment note, the Veteran's treating physician indicated that the blackouts were not likely related to the Veteran's TBI incidents in service, as they were too remote in time from one another. No diagnosis for the blackouts or alternative etiology was discussed. It was indicated that the Veteran would continue seeing a neurologist at the VA for his black outs, but there were no further treatment records after August 2009. VA's duty to assist includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2) (2012). The Board observes that the Veteran has received VA treatment from the Ann Arbor and Saginaw, Michigan, VA facilities for his blackouts and records of his VA care, dated since August 2009, have not been associated with the claims file. These records may contain pertinent information regarding the diagnosis and continued treatment of the Veteran's blackout spells, as well as possible relationship to service or service-connected disorders. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Second, remand is required to obtain an addendum opinion to the September 2009 VA examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The United States Court of Appeals for Veterans Claims has instructed that, in order for a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the absence of a sufficiently supported medical opinion, VA fails to meet its duty to assist obligations and a remand is necessary to cure this defect. See 38 C.F.R. § 3.159(c)(4) (2012). The Veteran was afforded a VA TBI examination in September 2009 for TBI. At such time, the examiner noted the Veteran's complaints of blackouts. However, the examiner opined that there was no diagnosis of a seizure disorder or epilepsy and that the Veteran's TBI did not cause any seizures. The examiner further found that the Veteran has never had a clinical seizure and that he has never had episodes of blackouts. Episodes of decreased awareness were noted, but these were attributed to the Veteran's service-connected PTSD. Here, the VA examiner stated that he had reviewed the Veteran's claims file prior to offering the opinion. Although the Veteran's VA treatment records indicated that the Veteran had complained of experiencing blackout episodes and received treatment accordingly, the examiner noted no history of blackout episodes. The VA examiner did not discuss the Veteran's treatment with Gabapentin or its effectiveness in treating symptoms. It appears that the examiner, in rendering his opinion about the Veteran's claimed seizures, was not fully informed of the sufficient facts or data necessary to make such a determination. See Nieves- Rodriguez, 22 Vet. App. at 295. Further, depending upon the evidence revealed in any subsequent VA treatment records that are obtained, the examiner's opinion may also be altered. As such, an addendum opinion is necessary to examine the medical evidence not discussed in the 2009 VA examination as well as the possible additional medical evidence of the Veteran's continued treatment for blackouts. Additionally, the Board observes that additional evidence consisting of VA examination reports pertaining to the Veteran's PTSD and TBI was received after the issuance of the most recent March 2010 statement of the case. Therefore, in the readjudication of the Veteran's claim, the agency of original jurisdiction (AOJ) should consider the entirety of the evidence, to include all evidence received since the issuance of the March 2010 statement of the case. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Ann Arbor and Saginaw, Michigan, VA facilities dated from August 2009 to the present pertaining to all of the Veteran's service-connected disabilities, to include his major depression. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After any new evidence has been associated with the claims file, the AOJ should refer the claims folder to the VA examiner who conducted the September 2009 TBI VA examination. If the September 2009 VA examiner is not available, the claims file should be referred to an appropriate medical professional for an addendum opinion. The need to examine the Veteran is left to the discretion of the medical professional selected to offer the opinion. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on a review of information and evidence contained in the claims folder, including the Veteran's medical history and the evaluation results, the examiner is asked to offer an opinion addressing the following inquiries. He or she should also take into account the Veteran's treatment at the VA Medical Center for blackout spells that improved with Gabapentin, in particular, the time period from February 2009 to August 2009. (A) Does the Veteran have a seizure or "blackout" disorder separate and distinct from his PTSD and/or TBI? In this regard, the examiner should address the September 2009 VA examiner's opinion that the Veteran had episodes of decreased awareness that he attributed to the Veteran's service-connected PTSD. If so, the examiner should address the following inquiries: (B) Is such diagnosed disorder related to the Veteran's military service, to include the in-service IED explosions that caused his TBI? (C) Is such diagnosed disorder caused OR aggravated by the Veteran's service-connected TBI? (D) Is such diagnosed disorder caused OR aggravated by the Veteran's service-connected PTSD? A complete rationale for all opinions must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the March 2010 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).