Citation Nr: 1618790 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 13-03 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Veteran represented by: Carol Avard, Attorney ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to January 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2013, the Board denied a claim for service connection for residuals of a fractured mandible and remanded the issue of entitlement to service connection for a seizure disorder for further development. The case has since been returned to the Board for appellate review. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS). VBMS contains a September 2015 private medical record that was submitted by the Veteran's representative and not reviewed by the RO prior to the issuance of the January 2016 statement of the case. However, as the Veteran's substantive appeal was received after February 2, 2013, the Board finds that the automatic waiver provision applies in this case. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board notes that there may be outstanding VA medical records. In the October 2013 remand, the Board directed the AOJ to obtain and associate with the claims file various VA medical records, including treatment records from the Miami VA Medical Center (VAMC). Review of the claims file does not reveal that the AOJ obtained records from the Miami VAMC or that efforts to obtain the records were unsuccessful. The Board notes that records from the Miami VAMC dated in October 2009 are found in the Veteran's Social Security Administration (SSA) records. However, the Veteran has reported that he received five years of treatment and pain medication for his seizure disorder from the Miami VAMC. See October 2014 VA primary care note. Therefore, a remand is necessary to obtain any outstanding, relevant VA medical records. In addition, the Board finds that a remand is necessary to obtain the Veteran's service personnel records. In a November 2010 notice of disagreement, the Veteran's representative noted the Veteran's report that he was incarcerated in 1981 during which he was involved in several fights and sustained head injuries that resulted in recurrent post-traumatic migraines. Additionally, a September 1981 service treatment record reflects that the Veteran reported breaking his jaw during a fight. As the Veteran reported that he sustained head injuries during his military service, the AOJ should obtain the Veteran's military personnel records and make efforts to obtain any treatment records from his period of incarceration. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his seizure disorder that are not already of record, to include any correctional facility or jail at which he has been incarcerated. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any pertinent and outstanding VA medical records, to include any records from the Miami VAMC dated from October 2009 to the present. 2. The AOJ should obtain a complete copy of the Veteran's service personnel records, to include any disciplinary action and line of duty determinations. 3. After completing the foregoing development, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. Further development may include affording the Veteran a VA examination and/or obtaining a medical opinion. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).