Citation Nr: 1319232 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 10-28 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. Jurisdiction of the Veteran's claim resides in the Waco, Texas RO. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). This appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In appeals where a Veteran's service treatment records are unavailable, there is a heightened obligation to assist the appellant in the development of the case. See Washington, 19 Vet. App. at 369-70; see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In this case, the Veteran has a current diagnosis of a seizure disorder. Except for the service discharge examination, the Veteran's service treatment records are missing, and are presumed to have been destroyed by a fire at the National Personnel Records Center. The available service separation examination is negative for complaints, treatment, or diagnosis of a seizure disorder. However, both the Veteran and his ex-wife report that he was exposed to paint fumes while on active duty which precipitated his current seizure disorder. Specifically, the Veteran reports that in the winter of 1957 while maintaining an assigned jeep, he entered the motor pool, closed the door and started the engine of a 2 1/2 ton truck (to use the power to spray paint the vehicle). After painting for a period of time, he felt very weak and somewhat disoriented. He was later found on the ground outside the motor pool. He reports that after this incident, he would wake up and find that he had bitten his tongue or the inside of his jaw. The Veteran's ex-wife recalled that the Veteran reported this incident to her at that time and further noted that he would shake violently in his sleep and would bite his tongue. The Board notes that the Veteran and his ex-wife are competent (and credible for purposes of this remand) to report on his symptoms both during and after service. See Jandreau v. Nicholson, 92 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). In light of the Veteran's contentions and the evidence presented, the Board finds that a VA examination is necessary to address whether the Veteran suffers from a seizure disorder that is related to service. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include VA and non-VA medical records. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be provided with a VA examination to determine the existence and etiology of any seizure disorder found. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a review of the evidence of record the VA examiner must provide an opinion as to whether the Veteran currently has a seizure disorder, and if so, whether any seizure disorder found is related to the Veteran's military service. In providing this opinion, the examiner must address all the evidence of record, to include the Veteran's lay statements. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include a denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim on appeal. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. This appeal has been advanced on the Board's docket. Expedited handling is required. No action is required by the Veteran until he receives further notice; however, 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). _________________________________________________ JOY A. MCDONALD 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).