Citation Nr: 1807038 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-20 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for seizure disorder. 2. Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and her niece ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1977 to July 1981 and from November 1981 to October 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In December 2014, the Veteran and her niece testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In April 2015 and February 2016, the Board remanded the case for additional development. In a September 2016 decision, the Board denied service connection for a seizure disorder, a low back disability, and a bilateral knee disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2017 order, a Joint Motion for Partial Remanded (JMPR) vacated the portion of the September 2016 decision that denied service connection for a seizure disorder and a low back disability and remanded the matters to the Board for compliance with the Court order. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The parties to the JMPR agreed that the VA examinations relied upon by the Board in the prior decision are inadequate. The claims are remanded for new examinations. Regarding the issue of service connection for a seizure disorder the parties noted that the February 2016 examiner's conclusions were undermined by the examiner's statement that "it is not my responsibility to make a diagnosis, but to corroborate diagnoses based on documentation." Regarding the issue of service connection for a low back disability, the parties noted that the Veteran's service treatment records (STRs) reflect that she reported low back pain in June 1986, and her STRs contain an assessment of "chronic" low back pain. The February 2016 examiner characterized this as evidence of lumbar strain that was treated with physical therapy and was not "chronic low back pain." He then found that the lumbar strain resolved and was therefore temporary with no sequelae. The parties agreed that the Veteran's STRs appear to contradict the examiner's assertion that her back pain was temporary and resolved. Further, the examiner did not consider the Veteran's lay assertions of continued symptomatology since service. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any seizure disorder or her low back disability since February 2016. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records. 2. After the completion of the above, schedule the Veteran for an appropriate examination to determine the current nature and likely etiology of any seizure disorder. The entire record, including this remand, must be provided to the examiner for review. Based on the record, the examiner should provide an opinion to the following: (a) Identify (by diagnosis) any seizure disorder found since July 2009, including grand mal, petite mal, or other type. (b) For each diagnosed seizure disorder, is it at least as likely as not that the disability is related to the Veteran's service? In answering this question, the examiner should consider, and discuss as necessary the following: (i) the documented instances of head trauma during service; (ii) her December 1982 hospitalization for loss of consciousness, during which an evaluation noted it was not conclusive that she had a seizure; (iii) the Veteran's December 2014 testimony that she continued to experience small seizures; and (iv) the Veteran's niece's December 2014 testimony that she had observed petite mal seizures experienced by the Veteran. (c) Is it at least as likely as not that diagnosed seizure disorder had its onset during the one-year period immediately following the Veteran's discharge from service in October 1987, and if so, how and to what degree was any such disorder manifested? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. After the completion of (1), the AOJ should also schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of her low back disability. The entire record, including this remand, must be provided to the examiner for review. Based on the record, the examiner should provide an opinion to the following: Is it at least as likely as not that the Veteran's low back disability is related to the Veteran's service? In answering this question, the examiner should consider, and discuss as necessary the Veteran's in-service report of low back pain and assessment of "chronic" low back pain, report of recurrent back pain at separation and her lay evidence of continuity of symptomatology ever since the injury. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 4. The AOJ should then review the record and re-adjudicate the claims. If any benefit remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and her representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the 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 (West 2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).