Citation Nr: 1323350 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-20 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for partial complex epilepsy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to April 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2009, the Veteran withdrew her request for a Board hearing. Therefore, no further development as to a hearing is necessary. 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 In June 2008, the Veteran authorized the release of records of Dr. D.B. of the North Texas Neurology Associates and Drs. A.B. and S-L. The RO made no attempts to obtain records from these providers and instead relied on the few records submitted by the Veteran as sufficient for duty-to-assist purposes. Efforts must be made to obtain all records from these providers. During service, the Veteran was in a motor vehicle accident on November 11, 1982. Private hospital treatment records show that she suffered contusions to the face and left ear and that she had temporary diplopia after which there was an assessment on November 22, 1982, of possible basilar skull fracture. The November 22, 1982, treatment record reflects that if the diplopia returned, she should be scheduled for a computed tomography (CT) head scan. The limited private treatment records submitted by the Veteran do not show that skull X-rays or a CT head scan was ever performed. Dr. D.B., a specialist in psychiatry and behavioral medical, related the Veteran's epilepsy to a skull fracture from the in-service motor vehicle accident in 1982, but the only evidence of skull fracture is the November 22, 1982, treatment record containing an assessment of "possible" basilar skull fracture. In contrast, the November 2008 VA examiner stated that in the vast majority of cases, seizure disorders caused by head injuries manifest themselves within two years of the head injury. The VA examiner also stated that the private hospital treatment records do not mention a head injury, but those records provide some evidence of a head injury. Therefore, another VA examination is necessary to determine whether the Veteran suffered an in-service skull fracture and whether the epilepsy is related to active service. In a June 2008 statement, the Veteran's mother reported that Dr. D.B. attributed the epilepsy to a November 1982 in-service skull fracture from the motor vehicle accident. The Veteran must be advised that she may submit a statement from Dr. D.B. or any other medical professional relating her epilepsy to active service. Robinette v. Brown, 8 Vet. App. 69, 80 (1995). The Veteran has been receiving a total disability rating based on individual unemployability since 1994. It is unclear whether she has ever applied for Social Security disability benefits; if she has, an attempt must be made to obtain from the Social Security Administration any records pertaining to her claim with that agency as any such records may be potentially relevant to her claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002), The RO last asked the Veteran to identify treatment for her epilepsy in January 2008. The Veteran must be asked to identify all treatment for her epilepsy since January 2008. The Veteran has regularly received treatment at the Oklahoma City VA Medical Center and its associated Lawton and Wichita Falls VA community-based outpatient clinics. The RO last obtained records from those facilities since March 2008. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran that she may submit a statement from Dr. D.B. or any other medical professional relating her epilepsy to active service. Associate any submitted medical statement with the Veteran's claims file. 2. Ask the Veteran whether she has ever applied for Social Security disability benefits, and if she has, attempt to obtain from the Social Security Administration any records pertaining to her claim with that agency. Associate any obtained records with the Veteran's claims file. 3. Ask the Veteran to identify all treatment for her epilepsy since January 2008. Obtain any identified treatment records. Obtain all records from Dr. D.B. of the North Texas Neurology Associates and Drs. A.B. and S-L. (See June 2008 authorization to release for contact information). Associate any obtained records with the Veteran's claims file. Regardless of the Veteran's response, obtain all records from the Oklahoma City VA Medical Center and its associated Lawton and Wichita Falls VA community-based outpatient clinics since March 2008. 4. Thereafter, schedule the Veteran for a neurological examination to determine the nature and etiology of the Veteran's epilepsy. A review of the record is required. Based on the examination and the file review, the examiner is asked to opine as to the following: a. whether it is at least as likely as not, i.e., is there a 50/50 chance, that the Veteran suffered a skull fracture from the in-service motor vehicle accident; b. if so, whether it is at least as likely as not, i.e., is there a 50/50 chance, that her epilepsy is related to the in-service skull fracture. c. whether it is at least as likely as not, i.e., is there a 50/50 chance, that the epilepsy is otherwise related to active service, to include the head injury from the in-service motor vehicle accident resulting in documented contusions to the face and left ear and temporary diplopia. A complete rationale for any opinion offered must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After the development requested, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, return the report to the examiner for corrective action. 6. Thereafter, readjudicate the issue on appeal. If the benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to her representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ Bethany L. Buck 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).