Citation Nr: 1329482 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 08-08-135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Marc S. Whitehead, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1983 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In July 2010, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing is of record. A Board decision in July 2012 denied service connection for a seizure disorder. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2013, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. The Veteran contends that her current seizure disorder first manifested during her military service. See, e.g., March 2008 substantive appeal. A review of the Veteran's service treatment records shows that in February 1987, she complained of dizziness and headaches. In November 1987, the Veteran again complained of dizziness. The Veteran complained of headaches in March 1988; she was diagnosed with simple astigmatism. A report of medical history dated in July 1988 shows that the Veteran answered no to dizziness or fainting spells and no to having frequent or severe headaches. An eye examination in August 1988 shows that she complained of headaches followed by blurred vision. An undated regular check-up examination, most likely in 1989 as the Veteran's reported age was 24 and she was born in 1965, revealed a clinically normal neurologic system; no seizures or head injuries were noted. Her separation examination in December 1989 also revealed a clinically normal neurologic system; again, no seizures or head injuries were noted. There is no indication that the Veteran was in a motor vehicle accident during service in 1983. Post-service medical records reveal that the Veteran complained of having some dizziness in February 2003 and of headaches and dizziness in September 2003. The first diagnosis of a seizure disorder was in December 2003 when the Veteran was shown to have a history of seizures. A VA neurology consultation dated in March 2005 reveals that the Veteran had a closed head trauma in 1983 and the manifestation of epilepsy three years earlier. A record dated in August 2006 shows that the Veteran's seizures were opined to be secondary to the 1983 closed head trauma. The Veteran testified at her July 2010 hearing that her seizure disorder was diagnosed in 2003. July 2010 Hearing Transcript (T.) at 3. The Veteran denied having any head trauma in service. Id. at 4. She testified that her symptoms first began in service with episodes of dizziness and disorientation; the first onset was during her basic training. Id. The Veteran has not been afforded a VA examination to determine whether a current seizure disorder is related to her military service. In this case, considering that the Veteran reported having dizziness and headaches both in- service and post-service, in addition to a current diagnosis of a seizure disorder, the Board finds that a VA examination would be beneficial to determine whether her current seizure disorder had its onset in service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The most recent VA treatment records from the Central Alabama VA Healthcare System are dated in April 2007. On remand, records of any VA seizure disorder treatment that the Veteran received since April 2007 should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post- service seizure disorder treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Central Alabama VA Healthcare System. If any such records identified by the Veteran are not available, she should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed seizure disorder. Her claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms since service, review the record, and opine as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed seizure disorder had its onset in service. The examiner should address the Veteran's in-service complaints of headaches and dizziness as well as evidence showing a closed head trauma following a motor vehicle accident in 1983. A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran 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). _________________________________________________ ROBERT E. SULLIVAN 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).