Citation Nr: 18145715 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 10-20 569 DATE: October 30, 2018 REMANDED The issue of whether the severance of service connection for ventricular tachycardia was proper is remanded The issue of whether the severance of entitlement to eligibility for Dependents’ Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code, was proper is remanded. The issue of entitlement to service connection for a seizure disorder, to include as secondary to ventricular tachycardia, is remanded. REASONS FOR REMAND The Veteran had active military service from July 1965 to July 1970. He had additional service in the Texas Army National Guard (TXARNG) from September 1985 to September 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2012, the Veteran testified at a Board before the undersigned Veterans Law Judge, sitting at the RO; a transcript of the hearing is included in the claims folder. The instant matters were previously before the Board in May 2012, at which time they were remanded for further development and readjudication. As discussed at length in the Board’s May 2012 action, the outcome of the claims on appeal turns, in large part, on the nature of the Veteran’s “duty status” at the time of an event in July 1997, which the Veteran has asserted was the onset of his ventricular tachycardia. Specifically, the Veteran has reported that in June-July 1997, he was mobilized for Bosnia originally under active duty for training (ACDUTRA or ADT) orders, but this was later converted to inactive duty for training (INACDUTRA or IDT) for the State’s convenience. He described the event of experiencing lightheadedness, heart palpitations, and light flashes/sparkles in his eyes. He said he lost consciousness and fell backward to the floor. He said he did not tell anyone at the time because he felt it would influence his ability to be activated with his unit. Although it was initially determined that the Veteran was serving on IDT at the time of the July 1992 incident, a grant of service connection for ventricular tachycardia was made by way of a rating decision dated in October 2004. The Veteran was eventually assigned a 100 percent rating for ventricular tachycardia, effective from February 24, 2004. Basic eligibility for DEA benefits was also established from that date. Then, in March 2009, the RO issued a rating decision that proposed to sever service connection for ventricular tachycardia based on clear and unmistakable error (CUE) in the October 2004 rating decision. In that regard, it was noted that the evidence established that he was serving on IDT in July 1997 and that ventricular tachycardia was not one of the two cardiac-related events that could be considered as an injury during a period of IDT. It was also proposed to sever the Veteran’s eligibility for DEA benefits. In a June 2009 rating decision, the RO severed service connection for ventricular tachycardia and eligibility for DEA benefits, effective as of September 1, 2009. Throughout the course of the appeal, the Veteran has provided evidence and argument regarding his “duty status” at the time of the event in July 1997. Specifically, the Veteran has indicated that he was in fact on active duty in July 1997, but the payment records showed that his unit was either on drill duty or annual training. In its May 2012 action, the Board noted that the Veteran may be able to establish service connection, or restoration thereof, for his ventricular tachycardia and seizures disabilities if he can establish a nexus to a period of active duty during service in the National Guard, that he became disabled as a result of disease or injury incurred or aggravated during a period of ACDUTRA, or that the disabilities were the result of an injury during a period of IDT. The Board found, however, that the evidence did not clearly establish whether the Veteran was on active duty, ACDUTRA, or INACDUTRA at the time of the July 1997 incident. Thus, because the issue of establishing the Veteran’s duty status is paramount in the adjudication of his claims, the Board remanded the matters with instructions to the agency of original jurisdiction (AOJ) to contact the Adjutant General of the Texas National Guard and request a determination of the Veteran’s status at the time of his service in June-July 1997. The Board indicated that the request should provide background information as to the alert for mobilization for the Veteran’s unit and should advise the Adjutant General that the Veteran has claimed that his unit was in fact on active duty during that time but were paid under funds that would show them on IDT. A review of the record shows that in April 2016, the RO issued a deferred rating decision wherein it was noted that a letter to the Adjutant General of the Texas National Guard had not yet been sent. That same month, the AOJ sent to the Texas Adjutant General’s Office a letter requesting verification of the Veteran’s duty status during the period from June through July 1997. It was also requested that that that office provide the AOJ with a complete copy of a 2001 “Line of Duty” investigation report, pursuant to the May 2015 Board remand instructions. July 2016 e-mail correspondence then indicates that a response from the Texas Adjutant General’s Office had not yet been received. It does not appear as though any follow-up request was made, or that any answer from the Adjutant General of the Texas National Guard was received, prior to the issuance of supplemental statements of the case (SSOCs) in August 2017, September 2017, and/or October 2017 wherein the AOJ continued to deny the Veteran’s claims. The matters were then re-certified for appeal to the Board in March 2018. Overall, the Board finds that the matters on appeal must again be remanded in order to ensure compliance with the Board’s prior remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); 38 C.F.R. § 20.1304 (c). Specifically, on remand, the AOJ must obtain from the Texas Adjutant General an explanation of the Veteran’s status at the time of the July 1997 event described above. If the Texas Adjutant General fails to respond to the AOJ’s request for information, a request must be made to the Chief, National Guard. Also on remand, the AOJ should seek from the VA examiner who examined the Veteran in November 2015 an addendum to that examination report that takes into consideration that report of a September 2016 computed tomography (CT) scan, which was submitted by the Veteran in October 2017. Specifically, in its May 2012 remand, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine, among other things, whether it was at least as likely as not that the Veteran experienced a cerebellar vascular accident (CVA) in July 1997. In response to that question, the VA examiner opined that it was less likely than not that the Veteran experienced a CVA in July 1997. As rationale for that opinion, the examiner stated that there is no record of any medical evaluation of the Veteran’s condition at the time of his episode in 1997 and that a later evaluation was reviewed by VA neurology with negative findings on examination and CT scan for residuals of a stroke (CVA). However, the report of the September 2016 CT scan was interpreted to reveal an “old right basal ganglionic infarction,” which the Veteran argues is evidence of a past CVA. On remand, the examiner should be asked to review this medical evidence and provide an addendum medical opinion. The matters are REMANDED for the following action: 1. The AOJ should contact the Adjutant General of the Texas National Guard and request a determination of the Veteran’s status at the time of his service in June-July 1997. The letter should provide background information as to the alert for mobilization for the Veteran’s unit and should advise the Adjutant General that the Veteran has claimed that they were in fact on active duty during that time but were paid under funds that would show them on IDT. The AOJ should include for review a copy of Orders 183-02, which are contained in the Veteran’s military personnel records. In addition, a complete copy of the 2001 LOD investigation, that includes all of the exhibits listed, should be requested 2. Them, the AOJ should compile a statement of service for the Veteran to show his dates of service, whether active duty, ACDUTRA, or INACDUTRA, for June and July 1997. 3. Upon completion of the above, the AOJ should arrange to obtain from the November 2015 VA examiner an addendum opinion that takes into consideration the findings of a September 2016 CT scan, the report of which was submitted by the Veteran in October 2017. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo examination if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The clinician is requested to review the report of the October 2016 CT scan and again provide an opinion as to whether it is at least as likely as not that the Veteran experienced a CVA in July 1997. If the clinician concludes that the September 2016 CT scan report does not support the Veteran’s claim that he suffered a CVA in July 1997, the clinician must explain in detail his/her negative opinion in this regard. 4. Then, after ensuring full compliance with all actions requested in the Board’s May 2012 remand and completion of any other action warranted, readjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication of the claim that is of record) and legal authority. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel