Citation Nr: 1311954 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-15 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a seizure disorder, referred to as possible psychomotor epilepsy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1953 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In October 2011, the Veteran testified at a video-conference hearing before a Veterans Law Judge (the transcript of which is associated with the Veteran's claims file), and in November 2011, that Veterans Law Judge authored a decision reopening the Veteran's service connection claim and remanding the merits of the reopened claim for further development. Since the issuance of the November 2011 decision, the Veterans Law Judge who conducted the Veteran's hearing retired from her position of the Board. The Veteran was informed of her retirement in a July 2012 letter, as well as his right to participate in a new Board hearing. However, the Veteran responded that he did not wish to participate in a new Board hearing. As such, the Board may proceed with the adjudication of his appeal. The Board previously remanded this appeal in September 2012 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Board finds that further remand is necessary prior to adjudication of the Veteran's service connection claim. Initially, the Board notes that the Veteran is essentially seeking service connection for a set of symptoms associated with claimed "spells," including dizziness, weakness, seizure activity, and loss of consciousness. While the Veteran has attributed his symptoms to a claimed seizure disorder, he is not a medical professional competent to render a diagnosis or opine as to the etiology of his symptoms. Accordingly, the Board finds the claim should be more broadly construed to encompass any cardiac or neurological disability associated with the Veteran's complaints, and that an additional medical nexus opinion should be solicited to determine whether the Veteran's current complaints are related to those he had during his military service. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (wherein, in a similar situation, the Court indicated the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In this regard, the Board notes that in April 1953, prior to the Veteran's in-service September 1954 head injury to which he currently attributes his claimed seizure disorder, the Veteran reported to sick call for complaints of dizzy spells, feeling weak, and frequent black-outs. Later that year, in December 1953, he apparently underwent an EKG for suspected heart failure. However, a December 1954 separation examination is negative for any abnormal neurologic or cardiac findings or diagnoses. Post service, the Veteran was seen by VA in 1965 for similar symptoms of dizzy spells and syncope that had been occurring for six months. At that time, diagnoses that were considered included postural hypertension and psychomotor epilepsy. The final impression was possible psychomotor epilepsy, though it was noted that the diagnosis should be considered temporary and may require modification in the future. The record thereafter is silent for complaints related to the Veteran's "spells" again until October 2007, when the Veteran sought private treatment for his claimed seizures, reporting that they first occurred in 1953, and had not occurred in 20 years. Significantly, the Veteran's report of onset in 1953 is consistent with the Veteran's service treatment records showing complaints of dizziness, weakness, and black-outs in April 1953. Those records also note associated symptoms of weakness and overheating. Clinical impression was seizures, noted to be possibly related to alcohol withdrawal. Subsequent VA treatment records dated in November 2009 and December 2009 show that the Veteran was seen by neurology for his symptoms, and that electroencephalography (EEG) testing was negative. However, those records show that a cardiac tilt table test was positive for neurocardiogenic syncope. The Veteran was afforded a VA examination in March 2012 during which the Veteran reported an onset of episodes or "spells" beginning about two weeks after leaving service. He described his spells as beginning with dizziness and weakness and during which he felt hot and perspired. He then may or may not pass out, and had been told that he may shake or tremble. The examiner noted symptoms of episodes of unconsciousness and tremors. The examiner further detailed the Veteran's history of treatment in 1965 and 2007 for similar episodes. However, the examiner noted that prior MRI, CT scans, and EEGs did not support the presence of a seizure disorder. Accordingly, the examiner concluded that the Veteran did not have a seizure disorder, noting that his symptoms were not typical for seizure disorders. Therefore, the examiner concluded that the Veteran's claimed condition was less likely than not incurred in or caused by the Veteran's claimed in-service injury. Significantly, the examiner did not discuss the service treatment records documenting complaints of dizzy spells, weakness, and blackouts in service, nor did the examiner discuss the diagnosis of neurocardiogenic syncope. Subsequent to that VA examination, additional VA treatment records were associated with the claims file that showed treatment in September 2012 for pre-syncope/syncope. It was noted that the Veteran was seen in neurology in 2010 for his claimed episodes, but that multiple EEGs showed no seizure activity. However, it was noted that a 2010 cardiology tilt-table test was positive for neurocardiogenic syncope, after which the Veteran was started on medication. He took that medication through 2011. Given the foregoing evidence showing complaints of dizzy spells, weakness, and black-outs in service, in conjunction with the current complaints of syncopal episodes and clinical findings of neurocardiogenic syncope, the Board finds that an additional medical opinion is necessary to address whether the Veteran's current "spell" symptoms attributed to neurocardiogenic syncope first manifested in or are otherwise related to service. The March 2012 VA examiner's failure to address significant positive evidence in support of the Veteran's claim, including the clinical findings of neurocardiogenic syncope and the Veteran's complaints of symptoms in service, renders it inadequate for rating purposes. On remand, any outstanding treatment records should be associated with the claims file, including VA treatment records pertaining to the Veteran's claimed "spells," and neurocardiogenic syncope. In this regard, VA treatment records dated in 2009 show that a diagnosis of syncope was made by VA in April 2008, however VA treatment records dated from June 2002 to October 2008 have not been obtained. Additionally, VA treatment records dated from September 2012 should be obtained and associated with the Veteran's claims file, either physically or electronically. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records pertaining to the Veteran's "spells," including records pertaining to treatment for syncope in April 2008, and treatment records dated from September 2012 to the present. 2. Then, schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's claimed spells involving dizziness, weakness, syncope, and overheating. The examiner should review the Veteran's claims file in conjunction with the examination, including: the Veteran's in-service complaints of dizziness, weakness, and black-outs; post-service VA treatment in August 1965 for dizzy spells and syncope; post-service private treatment for claimed seizures involving weakness, dizziness, and unresponsiveness, in October 2007; recent VA treatment for neurocardiogenic syncope; and, the September 2012 VA examination report. After reviewing this information, the examiner is asked to diagnose any current disability associated with the Veteran's claimed "spells," to include neurocardiogenic syncope, and opine whether it is at least as likely as not that any diagnosed disorder had its onset in, or is otherwise related to the Veteran's military service. A complete rationale should be provided for any opinion expressed. If the examiner determines that a medical opinion cannot be rendered without resorting to mere speculation, an explanation as to why that is so is requested, including a recitation of what missing facts or evidence would allow the examiner to render a medical opinion without resorting to speculation. 3. Then, re-adjudicate the Veteran's service connection claim. If the full benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant 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). _________________________________________________ MICHAEL E. KILCOYNE 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).