Citation Nr: 1805048 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-09 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for epileptic seizures. 2. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety. REPRESENTATION Appellant represented by: Kathy Lieberman, Esquire ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1974 to October 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. These matters were last before the Board of Veterans appeals in June 2011, at which time the Board remanded them for further development. For reasons discussed below, the Board finds that a further remand is necessary. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran maintains that he is entitled to service connection for epileptic seizures and depression. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA mental disorders examination in August 2011. A diagnosis of depression, not otherwise specified, was noted. In discussing the history of the Veteran's mental illness, the Board notes that the examiner apparently cut and pasted from an April 2008 VA treatment record for the entire discussion. The examiner noted that the Veteran separated from the military in 1976 "apparently due to his seizure condition." The examiner noted the lack of documented psychiatric symptoms or treatment while in service, as well as post service, and opined that "there is no objective evidence to establish any etiological or otherwise relationship between [the] Veteran's disorder and his military service." The Veteran was afforded a VA neurological disorders examination in September 2011. The examiner stated that a review of the service treatment records neither showed a diagnosis of epilepsy nor did they show "any clinical situation that could suggest a seizure." It was noted that the Veteran reported an onset of seizures in the 1980s. The examiner stated that there is no evidence of a diagnosis or epilepsy or any event during service to suggest a seizure or an epileptic attack. A June 1976 service treatment record notes the Veteran reported a migraine headache. The Veteran further reported that he "was screaming [and] turning his head by [company sergeant] and he doesn't remember to see MD." It was further noted that the Veteran was found in bed screaming and that the Veteran had no memory of this. It was also noted that the Veteran had difficulty communicating in English. The Veteran then stated that this was similar to his first episode. The Board notes that neither VA examiner discussed this service treatment record. In his October 1976 separation physical, the Veteran responded "yes" to periods of unconsciousness, loss of memory or amnesia, and nervous trouble, and frequent or severe headaches. No response was provided for epilepsy or fits. The Board notes that this was cursorily dismissed by the examiner as being part of a "nervous psychiatric disorder", without rationale. Here, because the examiners did not fully discuss all relevant service treatment records, and, because both relied almost entirely on a lack of contemporaneous, documented diagnoses, the Board finds that the August 2011 VA mental disorders examination and the September 2011 neurologic examination are inadequate. As such, remand is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. After, and only after, completion of step one above, schedule the Veteran for VA examinations with appropriate clinicians to determine the nature and etiology of his claimed disabilities: a. For the Veteran's epileptic seizures: The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his epileptic seizure disability. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed epileptic seizure disability had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. Whether it is as likely as not (i.e., probability of 50 percent or greater) that there were any prodromal manifestations of the Veteran's current epileptic seizure disability during or within one year of separation from active duty service. The examiner's attention is invited to the following: A November 1974 service treatment record notes the Veteran reported pain in his eyes due to sunlight. The Veteran was referred to an optometrist for polarized glasses. A June 1976 service treatment record notes the Veteran reported a migraine headache. The Veteran further reported that he "was screaming [and] turning his head by [company sergeant] and he doesn't remember to see MD." It was further noted that the Veteran was found in bed screaming and that the Veteran had no memory of this. It was also noted that the Veteran had difficulty communicating in English. The Veteran then stated that this was similar to his first episode. In his October 1976 separation physical, the Veteran responded "yes" to periods of unconsciousness, loss of memory or amnesia, and nervous trouble, and frequent or severe headaches. No response was provided for epilepsy or fits. In his February 2008 application for compensation, the Veteran stated that during basic training he began to develop symptoms of epilepsy in conjunction with severe headaches and lapses of consciousness. b. For the Veteran's acquired psychiatric disability, to include depression and anxiety. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his acquired psychiatric disability. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed acquired psychiatric disability had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. The examiner's attention is invited to the following: A June 1976 service treatment record notes the Veteran reported a migraine headache. The Veteran further reported that he "was screaming [and] turning his head by [company sergeant] and he doesn't remember to see MD." It was further noted that the Veteran was found in bed screaming and that the Veteran had no memory of this. It was also noted that the Veteran had difficulty communicating in English. The Veteran then stated that this was similar to his first episode. In his October 1976 separation physical, the Veteran responded "yes" to periods of unconsciousness, loss of memory or amnesia, and nervous trouble, and frequent or severe headaches. No response was provided for epilepsy or fits. In his October 1976 separation physical, the examiner noted the Veteran was "depressed, nervous," occasionally secondary to situation. In his February 2008 application for compensation, the Veteran stated that during basic training he "felt very depress[ed]" as it was the first time he was out of his country. The examiner must address the lay statements from the Veteran regarding his claimed disability. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL A. PAPPAS 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).