Citation Nr: 18148991 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-43 399 DATE: November 8, 2018 REMANDED Entitlement to service connection for epilepsy, to include as secondary to service-connected migraine headaches, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from December 2003 to July 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for the Veteran’s epilepsy. Although the Veteran initially requested a hearing, he later provided a amended Substantive Appeal and clarified that he did not request a Board hearing. Entitlement to service connection for epilepsy, to include as secondary to service-connected migraine headaches. Although the Board regrets the additional delay, the Board finds that further development is required before the claim on appeal can be decided. The Veteran is currently service-connected for several disabilities, including migraine headaches, evaluated at 0 percent from July 28, 2012 and at 30 percent from January 20, 2015. The Veteran contends that his current diagnosis of epilepsy, to include complex partial seizures, also had its onset in service and its symptoms manifested as his service-connected migraine headaches, as well as retrograde amnesia and brief lapses in consciousness. In November 2013, a VA neurologist (Dr. S) diagnosed the Veteran with partial complex epilepsy, noting that the Veteran endorsed a ten-year history of frequent migraine headaches of varying intensity two to three times per week, as well as four to five episodes of amnesia in the year or two prior to his examination. Results from a November 2013 EEG were found to be “abnormal with sharp waves and spike/wave discharges seen bifrontally.” Based upon the Veteran’s history and the EEG, Dr. S opined that the Veteran’s neurological discharges originate in the frontal lobe and likely correlate with his unique form of seizure activity associated with amnesia and impaired level of consciousness. In May 2015, a VA medical opinion found the Veteran’s diagnosis of frontal lobe epilepsy to be less likely than not proximately due to or the result of the Veteran’s service-connected migraine headaches. In so finding, the VA examiner relied primarily upon a May 2015 “Neurology e-consult” from a VA neurologist which stated that “[m]igraine headaches do not cause epilepsy. This patient’s frontal lobe seizures are idiopathic in etiology. That is to say we do not know the cause, but there is no association that migraine headaches cause seizures.” The VA examiner also noted that the Veteran’s spouse reported her belief that the onset of the Veteran’s retrograde amnesia and lapses in consciousness occurred as early as 2010, but failed to address whether this lay evidence supported a claim for direct service connection. The Veteran contends that the May 2015 VA opinion mischaracterizes his position, which does not assert that his epilepsy is caused by his service-connected migraines, but that his service-connected migraine headaches, along with his retrograde amnesia and loss of consciousness, were in fact early, co-morbid symptoms of his subsequently diagnosed epilepsy. As stated above, the May 2015 VA examiner failed to address this contention. In this case, the May 2015 VA examiner did not address whether the Veteran’s service-connected migraine headaches were in fact early, co-morbid symptoms of his subsequently diagnosed partial complex epilepsy. In addition, the VA examiner failed to consider whether the Veteran’s epilepsy is aggravated by a service-connected disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In light of the foregoing, the Board finds that the current evidence of record is insufficient to determine the etiology of the Veteran’s epilepsy, and in the absence of sufficient clarification, the Board lacks the requisite medical expertise to determine its nature and etiology. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board finds that another examination is necessary to determine whether the Veteran’s service-connected migraine headaches were in fact early, co-morbid symptoms of his subsequently diagnosed partial complex epilepsy or whether his epilepsy is otherwise related to his active military service and thus entitled to service connection on any basis. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all outstanding VA and private treatment records, since July 2012. 2. After obtaining all necessary records, forward the claims folder to a suitable expert in neurological disorders such as partial complex epilepsy to determine the nature and etiology of the current condition. The Veteran need not be scheduled for another physical examination unless such examination is considered necessary by the examiner. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information: (a) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s currently diagnosed partial complex epilepsy is due to or otherwise causally or etiologically related to his military service, including whether the Veteran’s service-connected migraine headaches are at least as likely as not early symptoms of his November 2013 diagnosis of partial complex epilepsy. In this regard, the examiner should note that a rationale is required for any etiological opinion. (b) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s currently diagnosed partial complex epilepsy manifested to a compensable degree within one year of separation from service, i.e., in July 2013 or earlier, including symptoms such as retrograde amnesia, migraine headaches, and loss of consciousness. In this regard, the examiner should note that a rationale is required for any etiological opinion. (c) In providing these opinions, the examiner should specifically comment on the following: (i) VA treatment records dated November 14, 2013, in which the Veteran’s VA neurologist (Dr. S) stated that the Veteran’s discharges originate from either of the frontal lobes and likely correlate with his unique form of seizure activity associated with amnesia and impaired level of consciousness; (ii) VA treatment records dated November 14, 2013, which indicate that the Veteran’s EEG results were abnormal with sharp waves and spike/wave discharges seen bifrontally; (iii) VA treatment records dated November 14, 2013, in which Dr. S opines that given the EEG results and the Veteran’s history of symptoms, including migraine headaches, amnesia, and impaired consciousness, a diagnosis of partial complex seizures is appropriate; and (iv) lay statements of the Veteran and his spouse reporting that the Veteran’s epilepsy manifested symptoms prior to July 2013, including migraine headaches, retrograde amnesia, and loss of consciousness, including an incident of retrograde amnesia and loss of consciousness that occurred during a motorcycle ride in approximately 2010. A rationale is required for any etiological opinion. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel