Citation Nr: 1808514 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-09 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a disability manifested by headaches and blackouts. REPRESENTATION Appellant represented by: Deanne L. Bonner Simpson, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran and his spouse testified before a VA decision review officer (DRO) at an August 2010 hearing conducted at the RO. Additionally, in July 2013, the Veteran and his spouse testified before the undersigned at a Travel Board hearing. Transcripts of the hearings have been associated with the claims file. The procedural history of this case is a lengthy one, involving multiple remands by the Board for further development in November 2013, June 2014, February 2015, and October 2015. The Veteran's claim for service connection for a disability manifested by headaches and blackouts was then denied by the Board in a November 2016 decision. Thereafter, the Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In April 2017, the Veteran's representative and VA's General Counsel filed a Joint Motion with the Court to vacate the Board's decision denying service connection for a disability manifested by headaches and blackouts, which motion was granted by the Court that same month. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At issue in this case is entitlement to service connection for a disability manifested by headaches and blackouts. Specifically, the Veteran contends that he had a bacterial infection and/or sinusitis with antibiotic treatment in service, which led to convulsive syncope, convulsions, headaches and cognitive decline. The Veteran's service treatment records show that the Veteran was treated several times in service for an upper respiratory infection. Post-service treatment records show that the Veteran has been diagnosed as having headaches, seizures, and convulsive syncope. Although the Veteran has a current disability and an in-service event or injury has been shown, the Board previously found, in its November 2016 decision, that the weight of the evidence was against a finding that the Veteran's current headaches and blackouts were attributable to service. As discussed in the introduction, the current matter is before the Board pursuant to the parties Joint Motion, which was granted by the Court in April 2017. Specifically, the parties agreed that the Board had erred when it "failed to fully address [the Veteran's] consistent contentions that he began experiencing cognitive decline while on active duty." The parties further agreed that the Board "failed to provide an adequate statement of reasons or bases for rejecting the medical treatises provided in support of [the Veteran's] claim." The parties noted the Board's acknowledgement that the Veteran had submitted several articles regarding headaches, meningitis, syncope, and neurologic manifestations to support his claim. Specifically, citing to Sacks v. West, 11 Vet. App. 314, 316-17 (1998), the Board found that the articles were assigned limited probative weight because they did not specifically address the Veteran's situation nor provide a basis for a medical opinion of record. Although the parties agreed that the Board had correctly cited to Sacks, the parties found that the Board erred by failing to acknowledge that since the Veteran "already had a diagnosis of a disability, the articles may have been submitted for the purpose of establishing a nexus." Specifically, the parties noted that "'[a] veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus.'" Hensley v. West, 212 F.3d 1255, 1265 (2000). The parties thus found error in that that "[t]he Board failed to fully consider the medical treatises for the purposes of establishing a nexus between [the Veteran's] active duty service, and his currently diagnosed condition." Although treatise evidence may be sufficient to establish nexus in cases where a Veteran has a diagnosed disability, the Veteran's case is not a simple one and the articles submitted in support of his claim discuss complex medical matters. Again, the Board points out that it would not appear that the articles in question speak directly to the facts and circumstances of the Veteran's case nor the development and presentation of his claimed disabilities such that they can, in and of themselves, serve as sufficient evidence of nexus. The Board, however, is not comprised of medical professionals and thus it is possible that the articles may contain information that tends to support the Veteran's claims, but that the complexity of the matters discussed therein is such that those without appropriate medical training would have limited understanding of how the information contained in these articles is supportive of the Veteran's claim. Accordingly, in light the parties joint motion, which found, at a minimum that the articles are evidence relevant to the issue at hand, the Board finds it necessary to remand the claim for an addendum medical opinion that takes into consideration the information contained in the articles in the context of opining as to the etiology of the Veteran's claimed disability manifested by headaches and blackouts and its relationship, if any, to service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the VA examiner who examined the Veteran in December 2015 and obtain from her an addendum medical opinion. Specifically, the examiner should be asked to review the articles submitted by the Veteran in August 2016. The examiner should then state whether the information contained in these articles tends to support a nexus between the Veteran's diagnosed headaches, seizures, and/or convulsive syncope and service, to include his in-service respiratory infections and any treatment therefore. If the examiner finds that the articles do not support a nexus in this case, the examiner should explain why not. The examiner is also requested to review her previous opinion and provide an extended rationale that considers the Veteran's consistent reports that he began to experience cognitive decline while on active duty. The Veteran is competent to describe symptoms perceived through the use of the five senses and his statements regarding his perceived cognitive decline should, for the purposes of this opinion only, be considered credible. Considering the Veteran's lay statements, the examiner should provide an opinion as to whether and why the Veteran's lay statements do or do not support a finding that the Veteran's current headaches, seizures, and/or convulsive syncope are attributable, even if part, to service. Regardless of whether the examiner's opinion is favorable or negative as to any question, the examiner must provide support for his opinions that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his opinion. (If the December 2015 examiner is no longer available, the claims folder should be forwarded to another VA physician with the appropriate expertise to render an opinion as to whether it is at least as likely as not the Veteran's present condition either was manifested during active service, or is otherwise etiologically related to an incident, illness or injury experienced in service, to include the Veteran's various recorded illnesses such as sinusitis and/or rhinitis, to include consideration of the opinion request outlined above. If another examination is required to formulate an opinion as to this question, another examination should be scheduled in order for the questions to be answered.) 2. Thereafter, the AOJ should readjudicate the issue on appeal in light of all evidence of record. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case and afforded adequate time to respond before returning the matter to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).