Citation Nr: 1328227 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 04-22 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a disability characterized by episodes of an altered mental state (other than vertebrobasilar migraines), to include a seizure disorder, to include as secondary to service-connected allergic rhinitis with sinusitis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the claim has been recharacterized as noted on the title page to reflect the theory of secondary service connection. In August 2008, the Board declined to reopen the previously denied claim of service connection for a seizure disorder. By way of a July 2009 Order, the United States Court of Appeals for Veterans Claims (Court) remanded the Board's August 2008 decision. The Court's order followed a Joint Motion for Remand (JMR). In May 2010, the Board reopened the previously denied claim of service connection for a seizure disorder and remanded that underlying issue for additional development. In August 2012, the Board characterized the issue as entitlement to service connection for a disability characterized by episodes of an altered mental state, to include a seizure disorder. The Board remanded the case so that an examination could be scheduled. Following completion of the requested action, as well as a continued denial of the Veteran's claim, his appeal was returned to the Board for further appellate review. In April 2013, the Appeals Management Center (AMC) granted service connection for vertebrobasilar migraines and assigned a noncompensable evaluation, effective December 17, 2012. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND In May 2010 and August 2012, the Board remanded the Veteran's service connection claim for additional development, including an adequate VA examination. Review of the claims file reveals that the AMC solicited additional VA medical opinions in July 2010 and December 2012, and did not provide the Veteran with a new VA examination as directed by the Board's May 2010 and August 2012 Remands. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the RO must provide the Veteran with a VA examination addressing the etiology of any disability characterized by episodes of an altered mental state (other than vertebrobasilar migraines), to include a seizure disorder, to include as secondary to service-connected allergic rhinitis with sinusitis. Even if the Board were to find that obtaining a VA opinion instead of providing a VA examination constituted substantial compliance with its May 2010 and August 2012 Remands, the VA opinions obtained are inadequate. Specifically, the December 2012 opinion was obtained from an attending neurologist and not a neuropsychiatrist or a neurologist and psychiatrist, as instructed in the August 2012 Board remand. Similarly, the July 2010 opinion was obtained from an attending physician. In addition, neither clinician rendered an opinion with respect to secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination by either a neuropsychiatrist or a board of two physicians comprised of a neurologist and a psychiatrist. The claims file must be made available to and reviewed by the specialist(s) in conjunction with the examination. Any indicated diagnostic tests and studies should be accomplished. The specialist(s) should provide the following opinions: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran has a current, chronic disorder manifested by an altered mental state and seizure-like episodes (other than vertebrobasilar migraines)? The specialist(s) should determine the diagnosis of such chronic disorder. The specialist(s) should specifically address the May 2005 letter from R.M.P., VA Chief of Neurology. (b) If such current, chronic disorder is found, is it at least as likely as not (i.e., 50 percent or greater probability) that such disability is in any way related to the Veteran's military service, to include the September 22, 1971 episode finally diagnosed as hysterical personality and hyperventilation syndrome? (c) If such current, chronic disorder is not in any way related to the Veteran's military service, is it at least as likely as not (i.e., 50 percent or greater probability) that such disability was caused or aggravated (permanently worsened beyond normal progression) by service-connected allergic rhinitis with sinusitis? (If the Veteran is found to have a disability characterized by episodes of an altered mental state (other than vertebrobasilar migraines) that is aggravated by a service-connected disability, the examiner should quantify the approximate degree of aggravation.) (d) If such current, chronic disorder is not found, the specialist(s) should determine if such chronic disorder was present at any time since the Veteran entered service; at what point such chronic disorder ceased to exist; and if the former chronic disorder was at least as likely as not in any way related to the Veteran's military service, to include the September 22, 1971 episode finally diagnosed as hysterical personality and hyperventilation syndrome. All opinions expressed must be supported by medical rationale. If the examiner feels that an opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. 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 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). _________________________________________________ James L. March 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).