Citation Nr: 1332410 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 05-40 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a seizure disorder, to include as secondary to service-connected disorders, namely post traumatic disorder (PTSD) and alcohol abuse. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. This appeal arose before the Board of Veterans' Appeals (Board) from a January 2005 rating decision of the Boston, Massachusetts, Department of Veterans Affairs (VA), Regional Office (RO) that, in pertinent part, denied entitlement to service connection for PTSD and alcohol abuse with residual seizure disorder. The Veteran appealed these denials and the Board subsequently issued remands in November 2007 and June 2011. In June 2011, the RO issued a rating action that granted service connection for PTSD. An April 2012 rating action awarded service connection for alcohol abuse secondary to PTSD. The April 2012 decision had not awarded a separate evaluation for alcohol abuse as it was considered to be part of the symptoms of the service-connected PTSD. In August 2012, the Board remanded the issue of entitlement to service connection for a seizure disorder, to include as secondary to a service-connected disability. The case is again before the Board for appellate review. 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 After careful review of the entire record, it is found that additional development is needed before a final decision can be made. While the delay is regrettable, the Board finds that it is necessary in order to ensure all due consideration to the Veteran's appeal. As noted above, this case was remanded by the Board in August 2012 primarily so that another VA examination could be performed. This was conducted in January 2013; therefore, the instructions of the prior remand were complied with. See Stegall v. West, 11 Vet. App. 268 (1998). However, the Board finds that this examination is not adequate. Significantly, the examiner did not provide an opinion as to the likely etiology of the Veteran's seizure disorder (that is, whether there is an as-yet unidentified neurological disorder as the underlying cause), nor was there any comment on the issue of whether the Veteran's service-connected disorders may have aggravated the diagnosed seizure disorder. Once an examination is conducted, VA has an obligation to ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The August 2012 remand had also instructed that the examiner comment upon the September 2003 VA examiner's opinion (which diagnosed alcohol abuse with nonservice-connected residuals of a seizure disorder) and an April 2012 treatment note (which diagnosed a seizure disorder secondary to past alcohol abuse). A review of the examination report does not include a discussion of the September 2003 opinion and notes that the April 2012 note could not be located. Despite not being able to review this note, the examiner still commented on its significance, finding that its conclusions were "incorrect." While this treatment note appeared to be in the record at the time of the August 2012 remand, it no longer appears to be in the claims file, nor is it located in the Veteran's Virtual VA eFolder. An attempt should be made to locate this document and include it in the claims folder. Finally, the record indicates that the Veteran was hospitalized in 1979 at Bayside Hospital in Boston. The Veteran stated that he had been in a coma and that his seizures began after this treatment for alcohol abuse. It does not appear that any attempt has been made to locate these records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he sign and return a release form authorizing VA to obtain any treatment records from Bayside Hospital dated in 1979. Once this is received, make all attempts to locate these records and associate them with the claims folder. All efforts to obtain these records must be documented in the claims folder. If these records are unavailable, the Veteran must be so advised. He must also be advised that it is ultimately his responsibility to obtain these records. See 38 C.F.R. § 3.159(e) (2012). 2. Locate and associate with the claims folder the April 2012 VA progress note that diagnosed a seizure disorder secondary to past alcohol abuse. All efforts to locate this record must be documented in the claims folder. If it cannot be located, a formal Memorandum of Unavailability must be prepared for inclusion in the claims folder. 3. The Veteran should be scheduled for an appropriate neurological examination. The examiner is to review all relevant records, to include those contained in the paper claims folder, the Veteran's CAPRI records, and his Virtual VA eFolder. The examination is to reflect that this review was conducted. All special testing deemed necessary must be conducted. The examiner must address the following: * Does the Veteran suffer from some other neurological disorder that is manifested by seizures that is directly related to or aggravated by the service-connected alcoholism and/or PTSD? * Is it at least as likely as not (a 50% of higher degree of probability) that the Veteran's seizure disorder is aggravated by his service-connected PTSD or alcohol abuse? * If it is determined that the seizure disorder is aggravated by a service connection disability, the examiner must identify the baseline level of severity prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. * If a portion of the increase is due to natural progression, the examiner must identify the degree of increase that is related to natural progression. * The examiner must comment on the significance of the September 2003 VA examination that diagnosed alcohol abuse with nonservice-connected residuals of a seizure disorder and the April 2012 VA treatment note (if located) that diagnosed a seizure disorder secondary to past alcohol abuse. A complete rationale for any opinions expressed must be provided. If an opinion cannot be made without resort to mere speculation, this must also be fully explained by the examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences of failing to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. Once the above-requested development has been completed, the claim for service connection for a seizure disorder must be readjudicated. If the decision remains adverse to the Veteran, he and his representative must be provided a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).