Citation Nr: 1322170 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 11-03 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for nocturnal epilepsy. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from February 2007 to January 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified during a hearing before the undersigned Veterans Law Judge in April 2011. A transcript of the hearing is of record. The issue of entitlement to educational benefits has been raised by the record, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that his nocturnal epilepsy was aggravated by active military service. He was provided with a VA examination in October 2008 with respect to this issue. The VA examiner documented that the Veteran reported a history epilepsy that began prior to service and she determined that the Veteran's epilepsy is not due to active military service. The examiner did not provide any explanation in support of this opinion. Furthermore, the Veteran's entrance examination dated in August 2006 reveals that the Veteran had a normal clinical evaluation and a seizure disorder was not noted during the examination. As a seizure disability was not noted upon entrance of active duty, the presumption of soundness applies. Therefore, there must be clear and convincing evidence that the Veteran's nocturnal epilepsy existed prior to service and was not aggravated by service to rebut the presumption of soundness. See VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If VA is unable to rebut the presumption of soundness; then it is a claim for service connection based on incurrence of disability in service. The Board finds that the VA examiner did not address whether there is clear and unmistakable evidence (i.e., obvious, manifest or undebatable) that the Veteran's nocturnal epilepsy existed prior to service and, if so, whether there is clear and unmistakable evidence there was no increase in disability in service or any increase was due to the natural progress of the preexisting condition. In light of the foregoing, the Board concludes that the Veteran should be provided with another VA examination and opinion. The Board also finds that updated VA treatment records concerning the Veteran's epilepsy should be obtained. In addition to fulfilling the duty to assist, all VA treatment records are constructively part of the record before the Board even when they are not actually contained in the record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records from September 2008 to the present. If the Veteran indicates that he has received private treatment for his nocturnal epilepsy, then attempt to obtain these records after securing the appropriate consent from the Veteran. 2. After obtaining and associating with the claims file any outstanding VA treatment records, schedule a VA examination with an appropriate specialist to evaluate the Veteran's claim for service connection for nocturnal epilepsy. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and provide an opinion with respect to the following questions: a. Whether there is clear and unmistakable (obvious, manifest or undebatable) evidence to show that the Veteran's nocturnal epilepsy pre-existed service. b. If the examiner finds that the nocturnal epilepsy pre-existed service, whether there is clear and unmistakable (obvious, manifest or undebatable) evidence that the pre-existing nocturnal epilepsy did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disorder. In this regard, please consider and discuss that the Veteran was prescribed medication to treat his nocturnal epilepsy during active military service and that he was medically discharged for the disability. c. If it is determined that the Veteran's nocturnal epilepsy did not pre-exist service or that there is no clear and unmistakable (obvious, manifest or undebatable) evidence that the Veteran's nocturnal epilepsy existed prior to service and was not aggravated by service, the examiner is further requested to provide an opinion whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's nocturnal epilepsy is related to the Veteran's active military service The examiner must provide an explanation for all conclusions. If the Veteran fails to appear at the VA examination, then provide the claims file to an appropriate medical specialist, request that he or she review the claims file and provide an opinion with an explanation to the questions listed above. 3. Upon completion of the foregoing, readjudicate the Veteran's claims of entitlement to service connection for nocturnal epilepsy, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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). _________________________________________________ MILO H. HAWLEY 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).