Citation Nr: 1316009 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-37 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to service connection for right elbow epicondylitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The appellant is a Veteran who had active duty service in the National Guard from January 1981 to May 1981, April 2001 to May 2001, and May 2006 to September 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Board observes that both the Veteran's claims file and records in Virtual VA have been reviewed. The Veterans Claim Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the claimant in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2012). A history of pre-active duty right temporal lobe removal related to a possible seizure disorder has been noted on several occasions. The record reflects that the Veteran was evaluated for a vascular anomaly of the right temporal lobe typical of cavernous angioma and had surgery to remove his right temporal lobe in 1997; that he was deemed by a medical board to be medically fit to deploy to Iraq and deployed to Iraq in May 2006; that he was likely asymptomatic until 2007; that he suffered a possible seizure in service in January 2007; and that he was found unfit for duty due to a seizure disorder upon return from Iraq. In essence, the Veteran's theory of entitlement is that a pre-existing disability was aggravated during service. The record necessary for proper consideration of this claim is incomplete. Whether or not a disability was aggravated by service requires consideration of the evidence pertaining to the manifestations of the disability before, during and subsequent to service. A review of the record did not find an attempt to secure the Veteran's private treatment records from 1997 to 2006 (which are clearly pertinent evidence). In addition, the record does not include National Guard records, Medical Board proceeding records, or pre and post deployment examination reports, all of which, if existing, are of record, and must be secured. Service personnel records may also contain pertinent information and must be secured. The Board also finds that the nexus opinion regarding the Veteran's seizure disorder offered on April 2008 VA examination is inadequate for rating purposes. It is based on an incomplete record and does not adequately address whether the seizure disorder was aggravated by service. Regarding epicondylitis, a close review of the record did not find a claim for, or any VCAA notice related to, such disability. The record (including Virtual VA) does not reflect the development that is customary with claims for service connection (to include whether or not the Veteran was asked to submit, or identify and authorize VA to secure, records of any private treatment he received for his elbow). Such claim likely would have been filed, and follow up notice issued, sometime subsequent to the Veteran's filing of the claims addressed in the July 2008 rating decision (as right elbow epicondylitis was not included among the disabilities in the Veteran's initial claim). The RO's March 2008 request for VA examination did not mention right elbow epicondylitis. For reason unclear from the record, the April 2008 VA examiner addressed epicondylitis, and that disability was thereafter included in the July 2008 rating decision on appeal. The medical evidence regarding right elbow epicondylitis is incomplete. A November 2007 occupational therapy evaluation report (found in Virtual VA) notes that the Veteran was seen on referral. Treatment records of the "referring" provider are not in the record, and have not been sought (nor is that provider identified). The Veteran received VA occupational therapy for right elbow epicondylitis fairly soon after his discharge from active duty in September 2007 (which would make any earlier records of evaluation or treatment for epicondylitis pertinent, and perhaps critical, evidence, constructively of record, that is outstanding and must be secured). Finally, while right elbow epicondylitis was diagnosed on April 2008 VA examination, the examiner did not offer an opinion as to whether such disability is related to the Veteran's service (in light of his allegations and treatment records generated shortly after his discharge from active duty). Consequently, another examination to secure a medical opinion is necessary. Accordingly, the case is REMANDED for the following: 1. As they are not currently associated with the record on appeal, the RO should associate with the record the Veteran's claim seeking service connection for a right elbow disability and all records pertaining to the development of such claim (to include the VCAA notice letter, etc.) 2. The RO should arrange for an exhaustive search for the Veteran's outstanding STRs, to include his pre and post deployment examination records and Medical Board records. The search must encompass all possible locations where the records may have been transferred, including the Veteran's National Guard unit, all units to which he was assigned while on active duty (and thereafter), and all repositories where records may have been retired. The RO should also secure for the record a copy of the Veteran's complete service personnel file (as it may contain pertinent information). If the records sought are not located, the scope of the search must be described in the record. 3. The RO should ask the Veteran to identify all providers of evaluations and/or treatment he has received for seizures (and related to his right temporal lobe removal) from 1997 to the present (records of which have not already been secured or received), and to provide the releases necessary for VA to secure records of all private evaluations and treatment. The RO should also ask the Veteran to identify (and provide releases for any private records of) all providers of evaluation and/or treatment be received for right elbow epicondylitis (records of which are not already associated with the claim file), to specifically include his initial post-service evaluation/diagnosis of such disability, and the medical provider who referred him for occupational therapy in 2007. The RO should secure complete clinical records from all providers identified. 4. After the development sought above is completed, the RO should arrange for a neurological examination to determine the nature and likely etiology of his seizure disorder (and specifically whether it was aggravated by his active duty service). The entire record must be reviewed by the examiner in connection with the examination, and any tests or studies indicated must be completed. The examiner should note that any pre-existing seizure disorder was not found to be disqualifying for deployment, and that post deployment the Veteran was found to not be fit for duty. Based on a review of the record, and examination and interview of the Veteran, the examiner must provide an opinion that responds to the following: Based on the factual evidence of record is it at least as likely as not (a 50% or better probability) that the Veteran's seizure disorder was incurred or aggravated, beyond natural progression, during his active duty service? The examiner must explain the rationale for all opinions, citing to supporting factual data. 5. After the development sought above is completed, the RO should arrange for an orthopedic examination of the Veteran to determine the likely etiology of his right elbow epicondylitis. The entire record must be reviewed by the examiner in connection with the examination. Based on a review of the record, and examination and interview of the Veteran, the examiner should provide an opinion that responds to the following: Please identify the most likely etiology for the Veteran's right elbow epicondylitis. Specifically, is it at least as likely as not (a 50 % or better probability), that such disability was incurred in or aggravated by the Veteran's active duty service, to include as due to his occupational duties therein. The examiner must explain the rationale for all opinions. 6. The RO should then review the record and readjudicate these claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ George R. Senyk 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).