Citation Nr: 20003533 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 17-38 511 DATE: January 16, 2020 REMANDED Entitlement to service connection for reactive airway disease is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for headaches and migraines is remanded. Entitlement to service connection for a seizure disorder is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from August 1988 through December 1988. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran submitted a statement that included a request that the claim be expedited due to financial hardship. As such it is considered a motion to Advance on the Docket (AOD) due to financial hardship. Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. 38 U.S.C. § 7107(a)(2); 38 C.F.R.§ 20.900(c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. Any motion for advancement should be supported by pertinent documentation. The Board has considered the Veteran’s motion and evidence submitted and finds that the Veteran has submitted sufficient evidence to demonstrate the necessity of an AOD due to financial hardship, and the motion for AOD is granted. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). In November 2019, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript of the testimony has been associated with the file. 1. Entitlement to service connection for reactive airway disease is remanded. 2. Entitlement to service connection for sleep apnea syndromes is remanded. 3. Entitlement to service connection for headaches and migraines is remanded. 4. Entitlement to service connection for a seizure disorder is remanded. The Veteran contends he is entitled to service connection for reactive airway disease, seizure disorder, sleep apnea, and headaches. The Veteran reports he was diagnosed with “fits” in service and his seizure disorder should be service connected. He also reports his seizure disorder and reactive airway disease were aggravated and worsened during service. The Veteran contends his sleep apnea and headaches are related to his seizure disorder. The Veteran’s claims for service connection for reactive airway disease and seizure disorder was denied on the finding that the disability existed prior to service and the RO determined there was no evidence that the Veteran’s conditions permanently worsened as a result of service. The Veteran’s claim for service connection for sleep apnea and headaches were denied on the basis there is no record of treatment, complaints, or diagnosis while the Veteran was in service. The Veteran submitted private Disability Benefits Questionnaires for headaches, sleep apnea, and seizures. He also provided a medical opinion from 1984 neurologist who stated the Veteran did not have epilepsy and that at the time, he had no trouble without medication. His wife also submitted a buddy statement detailing his medical history. During his November 2019 hearing, the Veteran testified that he contends his sleep apnea and headaches are related to his seizure disorder, which he reports began in service. After a thorough review of the record, the Board finds a remand is necessary. Given the documentation from the Veteran’s neurologist from 1984, the Veteran’s service treatment records, and his most recent testimony, the Board finds that VA examinations are necessary to address whether there is clear and unmistakable evidence that shows the Veteran’s seizure disorder was a pre-existing condition and if so, whether the Veteran’s active duty service aggravated that condition. In addition, the Veteran never underwent a VA examination for sleep apnea or headaches. As such, the Board finds a remand is warranted for a medical opinion to address whether the Veteran’s sleep apnea and headaches were caused or aggravated by a service-connected disability and the treatment the Veteran received for the disability, if his seizure disorder is determined to be a service connected disability. While the Veteran did undergo a VA examination for his reactive airway disease, based on his hearing testimony, the Board finds a remand is warranted for a medical opinion to evaluate reactive airway disease on both a direct and secondary basis. In sum, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. The matters are REMANDED for the following actions: 1. Contact the Veteran and ask that he identify any related private medical records that are not already of record and obtain those records. 2. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his seizure disorder. After performing all indicated tests and studies, the examiner is to address the following: a) Is there clear and unmistakable evidence of a preexisting seizure disorder in this case? The Board notes that no seizure issues were noted at the time of enlistment, and as such, the presumption of soundness does attach in this case and can only be overcome by a showing of clear and unmistakable evidence of a preexisting seizure disorder. b) If, and only if, the examiner concludes that there is clear and unmistakable evidence of a preexisting seizure disorder, then the examiner should further opine as to whether there is clear and unmistakable evidence demonstrating that any preexisting seizure disorder was not aggravated beyond the natural progression of the condition as a result of active military service. c) Finally, if it is determined that there is not clear and unmistakable evidence of a preexisting condition, the examiner must opine as to whether the Veteran’s seizure disorder is at least as likely as not the Veteran’s claimed seizure disorder was caused by or is otherwise etiologically related to his active service. In doing so, the examiner must consider and discuss any lay statements of record indicating that the Veteran suffered from a seizure disorder during and related to the Veteran’s service. The examiner must also discuss the March 1984 neurologist’s correspondence related to the Veteran’s medical history and the question of a pre-existing condition. 3. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his reactive airway disease. Since the Veteran’s contends a link between his reactive airway disease and another medical condition, the examiner must provide a rationale indicating whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s reactive airway disease was either caused by, or aggravated by, his service-connected disabilities. 4. Obtain appropriate opinions as to the possible relationship between the Veteran’s sleep apnea and headaches and his claimed seizure disorder. In particular, the examiner should offer opinions as to the following: a) Whether the Veteran’s sleep apnea is proximately due to, the result of, or aggravated by a service connected disability and the treatment the Veteran received for the seizure disorder. b) Whether the Veteran’s headaches are proximately due to, the result of, or aggravated by a service-connected disability and/or the treatment thereof. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.