Citation Nr: 20008035 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-12 724 DATE: January 30, 2020 REMANDED Entitlement to an initial rating in excess of 40 percent for juvenile myoclonic epilepsy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2008 to September 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2018 when it was remanded for further development. Entitlement to an initial rating in excess of 40 percent for juvenile myoclonic epilepsy is remanded. Although the additional delay is regrettable, the Board finds remand for further development is necessary before a decision can be made regarding the Veteran’s claim. On the October 2019 VA examination report, the examiner noted that the Veteran has epilepsy associated with a nonpsychotic organic brain syndrome. During an earlier June 2019 VA examination, a different examiner indicated that the Veteran has not had epilepsy associated with a nonpsychotic organic brain syndrome. VA regulations provide that a nonpsychotic organic brain syndrome will be rated separately under the appropriate diagnostic code (e.g., DC 9304 (major or mild neurocognitive disorder due to traumatic brain injury) or 9326 (major or mild neurocognitive disorder due to another medical condition or substance/medication-induced major or mild neurocognitive disorder). In the absence of a diagnosis of nonpsychotic organic psychiatric disturbance (psychotic, psychoneurotic or personality disorder) if diagnosed and shown to be secondary to or directly associated with epilepsy will be rated separately. The psychotic or psychoneurotic disorder will be rated under the appropriate DC. The personality disorder will be rated as a dementia (e.g., DC 9304 or 9307). 38 C.F.R. § 4.124a. Hence, as the evidence is conflicting regarding whether the Veteran has a nonpsychotic organic brain syndrome associated with her service-connected epilepsy, symptoms of which could be rated as part of the Veteran’s already service-connected major depressive disorder with anxiety disorder, remand is necessary to clarify whether the Veteran has a nonpsychotic organic brain syndrome. Additionally, in the January 2018 Board remand, the Board asked the RO to request medical records from Bluefield Regional Medical Center for the time referenced in a December 2012 letter from Dr. P.K. wherein he stated that he personally witnessed the Veteran having a few “major seizures” in August 2012 and that she was taken to the emergency room at Bluefield Regional Medical Center. The RO sent the Veteran letters in February 2018 and July 2019 asking the Veteran to complete and return VA Form 21-4142 and VA Form 21-4142(a) so that treatment records from Bluefield Regional Medical Center could be obtained. The Veteran failed to respond to the requests. Although VA has made two requests for these records already, the records remain pertinent to determining the severity of the Veteran’s seizures in 2012. As such, since the claim is being remanded anyway, the Veteran should be provided another opportunity to provide the requested evidence.   The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any updated VA treatment records from September 2019 to the present. 2. Ask the Veteran to complete and return VA Form 21-4142, Authorization to Disclose Information to the VA, and VA Form 21-4142a, General Release for Medical Provider Information to the VA, so that the RO can obtain any medical records from Bluefield Regional Medical Center for the time referenced in Dr. P.K.’s December 2012 letter. Inform the Veteran that her failure to respond or provide the requested information may result in denial of her claim. 3. Schedule the Veteran for an examination to determine whether the Veteran has a diagnosis of a nonpsychotic organic brain syndrome, and if so, the nature and severity of the disability. The electronic claims file must be made available to the clinician for review in connection with the examination. The examiner must complete any testing deemed necessary. If the clinician concludes the Veteran has a nonpsychotic organic brain syndrome, the clinician should offer an opinion addressing the following: (a) whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s nonpsychotic organic brain syndrome is proximately due to or caused by her service-connected juvenile myoclonic epilepsy. (b) whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s nonpsychotic organic brain syndrome was aggravated (i.e., worsened beyond natural progression) by her service-connected juvenile myoclonic epilepsy. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.