Citation Nr: 1801814 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-23 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a seizure disorder, to include direct service connection, aggravation of a preexisting condition, and compensation under 38 U.S.C. § 1151. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran's spouse and sister ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from August 1981 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of May 2009 and December 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran's spouse and sister testified before the undersigned Veterans Law Judge in December 2013. A transcript of that hearing is of record. The Veteran was unable to testify on his own behalf at that time, as he was non-responsive and in a nursing home. This case was previously remanded by the Board in May 2015. The case has been returned to the Board for review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In May 2015, the Board remanded the issue on appeal for additional development. The remand requested, in part, that the AOJ schedule a new VA examination for the Veteran and if examination of the Veteran was not possible, due to his health, then the VA examiner should provide a file review examination. A June 2015 VA notice letter addressed to the Veteran explained that the AOJ asked the VA medical facility nearest to him to schedule a VA examination. The letter stated that he would be notified of the date, time and place of the examination. A Compensation and Pension Exam Inquiry reflects that a request for a "DBQ Seizure Disorders" examination and medical opinion was initiated on July 30, 2015. Subsequently, another Compensation and Pension Exam Inquiry reflected that the examination was cancelled and the reason listed for the cancellation was "Veteran failed to report." The request was cancelled on August 27, 2015. The address listed for the Veteran, on the Compensation and Pension Exam Inquiry, is different from the address where the June 2015 VA notice letter was sent. VA regulations provide that when a claimant, without good cause, fails to report for an examination, action shall be taken, to include rating based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655 (a) (2017). While the Veteran and his representative have not explained why he failed to report to the examination, the evidence of record indicates that the Veteran (is appears) may never have been informed of the date and time of his VA examination since the Compensation and Pension Exam Inquiry lists a different address then the VA notice letter. As such, the Board will resolve reasonable doubt in the Veteran's favor and finds that the May 2015 Board remand directives were not substantially completed and that good cause has been shown for his failure to report for the VA medical examination. Stegall v. West, 11 Vet. App. 268 (1998); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As a result, a remand is required to schedule a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA medical treatment records from April 2013 to the present. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's seizure disorder. If the Veteran is unable to appear for the examination or if a physical examination of the Veteran is not possible due to his health, a file review should be conducted. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran had a preexisting seizure disorder at the time of his induction into active service? b) If so, is it at least as likely as not (50 percent probability or greater) that the preexisting seizure disorder was aggravated by active service? c) If it is not at least as likely as not that the Veteran had a preexisting seizure disorder at the time of his induction into active service, is it at least as likely as not (50 percent probability or greater) that the Veteran's current seizure disorder is caused by or otherwise etiologically related to service, to include consideration of the forehead bump/cyst which the Veteran stated resulted from hitting his head during a seizure. The examiner should consider both the Veteran's active service as well as his INACDUTRA and ACDUTRA periods of service. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. d) Whether the Veteran has additional disability due to his multiple visits and in-patient stays at VA facilities. For each identified additional disability, address whether such disability is at least as likely as not (50 percent probability or greater): (1) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA practitioner(s); (2) the result of VA failure to exercise the degree of care that would be expected of a reasonable health care provider; (3) whether the disability is the result of an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The examiner is requested to provide a complete rationale for all opinion(s) provided, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran 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. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).