Citation Nr: 18150824 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 06-30 434 DATE: November 16, 2018 REMANDED Entitlement to service connection for lymphatic filariasis is remanded. Entitlement to service connection for narcolepsy type seizures, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1968 to July 1969. The Board notes that another issue was certified to the Board in April 2017. However, as the Veteran has a pending hearing request for this issue, the Board will not address it herein. In June 2017, the Board remanded the issues of entitlement to service connection for side cramps with weakness and neck stiffness. The Board also denied entitlement to service connection for lymphatic filariasis, narcolepsy-type seizures, Hodgkin’s disease/lymphadenopathy, pharyngitis, tonsillitis, and eosinophilia. The Veteran appealed the Board decision regarding his lymphatic filariasis and narcolepsy-type seizures to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claim was pending at the Court, the Veteran’s representative and the VA Office of General Counsel filed a Joint Motion in July 2018 requesting that the Court vacate and remand those portions of the June 2017, Board decision that denied service connection for lymphatic filariasis and narcolepsy-type seizures. In an August 2018 Order, the Court granted the Joint Motion for Remand (JMR) and vacated those portions of the Board’s June 2017 decision. The case was returned to the Board for compliance with the terms of the JMR. 1. Entitlement to service connection for lymphatic filariasis is remanded. The Court noted that it is well established the Board is required to include in its decision “a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record”; that statement must be adequate to enable an appellant “to understand the precise basis for the Board's decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet. App. 517, 527 (1995); 38 U.S.C. § 7104(d)(1). Moreover, “[d]ecisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.” 38 U.S.C. § 7104(a); Majeed v. Principi, 16 Vet. App. 421, 431 (2002). Deficiencies in the Board’s analysis preclude effective judicial review, warranting remand. See Simington v. West, 11 Vet. App. 41, 45 (1998); Meeks v. Brown, 5 Vet. App. 284, 288 (1993); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case the Court agreed that a remand was warranted because the Board failed to address evidence pertinent to the question of whether the Veteran had a current diagnosis of lymphatic filariasis at any point during the appeal period. In its decision the Board noted VA treatment records from October 2010 and December 2010 that noted bilateral inguinal lymphadenopathy, consistent with a history of filariasis, where the VA examiner found “palpable lymph nodes in both groins.”. The Board noted there were no further description of the disorders in the VA treatment records, no description of ongoing treatment and no indication of complaints by the Veteran. In its June 2017 decision, the Board found “the April 2015 VA examiner’s opinion was the most persuasive and probative evidence in determining that the Veteran does not currently have these conditions.” The VA examiner had stated that there was no evidence of lymphatic filariasis at the time of the examination and that he was not taking any medication for the treatment of such. As a consequence, there was no disorder present to related to service. The Court determined the Board erred by not addressing whether the Veteran had lymphatic filariasis during the appeal period that was resolved by the April 2015 VA examination. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Board found the April 2015 VA examiner’s opinion was more probative, the Court explained, the examiner only opined that the Veteran did not have the condition at the time of the examination, and had noted the Veteran’s condition was in “remission” and treatment was “watchful waiting.” Additionally, the Court found the Board did not address whether the April 2011 scrotal ultrasound that revealed minimal bilateral hydroceles indicated the presence of lymphatic filariasis at that time. Therefore, the Court found a remand was warranted for the Board to address all pertinent evidence and determine whether the Veteran had a current disability of lymphatic filariasis at any point during the appeal period. 2. Entitlement to service connection for Narcolepsy type seizures, is remanded. The Court found Under 38 U.S.C. § 5109A, the Secretary must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate” his or her claim for benefits. 38 U.S.C. § 5103A(a)(1). This duty includes “mak[ing] efforts to obtain the claimant’s VA medical records or record of examination or treatment at non-VA facilities authorized by VA.” 38 C.F.R. § 3.159(c)(3). “The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.” Id. In the case the Court agreed a remand was warranted because the Board failed to obtain VA medical records from the Memphis VA Medical Center regarding the Veteran’s narcolepsy-type seizures as requested by the veteran. The Court noted in a March 1997 statement, the Veteran requested service connection for seizures and requested that his medical records from VAMC Memphis from 1975 to present be requested. The Court indicated it does not appear the RO requested medical records from the Memphis VAMC and the records are not otherwise contained in the record. The court explained, in Sullivan, the U.S. Court of Appeals for the Federal Circuit held that section 3.159(c)(3) “expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.” Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016). Therefore, the Court found a remand was warranted for the Board to obtain VA medical records from the Memphis VA Medical Center regarding Veteran’s narcolepsy-type seizures from 1975 to 1997. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. Specifically, the RO should obtain medical records from the VAMC in Memphis, Tennessee regarding the Veteran’s narcolepsy-type seizures from 1975 to 1997. 2. Once the above development has been completed, obtain an appropriate VA addendum opinion to determine the nature and etiology of the Veteran’s narcolepsy-type seizures. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and thoroughly reviewed by the examiner. The VA examiner should address the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's narcolepsy-type seizures had its onset or is otherwise related to his military service. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. 3. Obtain an appropriate VA addendum opinion regarding the Veteran’s claim for lymphatic filariasis. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and thoroughly reviewed by the examiner. The VA examiner should address the following: (a) The examiner is asked to clarify whether the Veteran currently or at any point during the period on appeal had a diagnosis lymphatic filariasis. (b) If he Veteran does or had at any point during this appeal a diagnosisof lymphatic filariasis, is it at least as likely as not (50 percent probability or greater) that the Veteran’s lymphatic filariasis had its onset or is otherwise related to his military service. A complete rationale for the requested opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel