Citation Nr: 18157538 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-61 538 DATE: December 12, 2018 REMANDED Entitlement to an increased evaluation for non-cardiac syncope, currently rated as 40 percent disabling, is remanded. REASONS FOR REMAND It appears that the Veteran served on active duty from January 2005 through December 2008, although no DD-214 or other service department verification is associated with the claims file. In April 2017, the Board of Veterans’ Appeals (Board) remanded this claim for additional development. Although the Board regrets further delay, remand is required for a new VA examination and report. The Veteran’s non-cardiac syncope is not listed in the Schedule for Rating Disabilities. Therefore, it is rated analogously under a closely related disability in which the functions affected, anatomical localization (if applicable), and symptomatology are closely analogous. 38 C.F.R. § 4.20. In this case, due to the Veteran’s diagnosed condition, episodes of sudden weakness of her extremities, sometimes bad enough to fall, and hypersomnolence, are evaluated under the General Rating Formula for Major and Minor Epileptic Seizures. 38 C.F.R. § 4.124a, Diagnostic Codes (DC) 8910-8911. In April 2017 the Board remanded this claim to obtain a VA examination report to determine the frequency and severity of the Veteran’s service-connected non-cardiac syncope. Unfortunately, the Board directed the examiner to indicate whether the Veteran’s non-cardiac syncope was manifested by a certain number of major or minor seizures. In turn, the April 2017 VA examiner stated that the Veteran did not have seizures. However, the Veteran is not service-connected for seizures, her disability is only evaluated, through analogy, to that disability. The examiner should have ascertained the symptoms of the Veteran’s non-cardiac syncope, the severity and duration of her non-cardiac syncope episodes, and the frequency with which the Veteran experiences non-cardiac syncope episodes under the ordinary conditions of life. 38 C.F.R. § 4.121. Only then should the examiner have stated whether the Veteran’s non-cardiac syncope episodes were analogous to either a major or minor seizure and how many corresponding episodes of non-cardiac syncope the Veteran experiences on an average weekly or yearly basis. Accordingly, remand is required for a new VA examination by a different examiner. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford them the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and their representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected non-cardiac syncope, from an examiner other than the one who completed the April 2017 VA examination. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must elicit from the Veteran a detailed history of the alleged non-cardiac syncope episodes, to include symptoms, duration, nature, and severity. An explanation for all opinions expressed must be provided. The appropriate Disability Benefits Questionnaire must be utilized. First, the examiner must describe all symptoms (and related functional impairment) of the Veteran’s service-connected non-cardiac syncope. Second, the examiner must determine whether the symptoms and impairment shown are more analogous to major or minor seizures and ascertain the average frequency of the episodes since January 11, 2013 under the ordinary conditions of life. 4. Notify the Veteran that it is their responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel