Citation Nr: 21000443 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-58 336 DATE: January 5, 2021 REMANDED Entitlement to service connection for a seizure disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1996 to July 1997. This matter comes to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In May 2015, the AOJ issued a rating decision that denied the Veteran’s claims for service connection for a seizure disorder. The Veteran timely disagreed in an April 2016 Notice of Disagreement (NOD) and perfected his appeal in a November 2016 VA Form 9. In September 2019, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. Then in November 2019, the Board issued a remand for the VA to provide a disability examination. In January 2020 a new VA disability examination was conducted for the Veteran’s seizure disorder. Between May and July 2020, the Veteran submitted new evidence in support of his claim. The AOJ re-adjudicated the claim in August 2020 and denied the Veteran’s claim for service connection for a seizure disorder. In October 2020, the Veteran’s case was returned to the Board. Entitlement to service connection for a seizure disorder is remanded. The Veteran contends his seizure disorder did not exist prior to service. See February 2016 Statement in Support of Claim. He contends that the seizure that occurred prior to service is not connected to his current seizure disorder. See Transcript dated September 2019 at 8. Alternatively, he also contends his seizure disorder was aggravated by his service. See June 2020 Statement in Support of Claim. He contends the stress from basic training and his duties as a base operator and network communications aggravated his seizure disorder. See Transcript dated September 2019 at 7. Although the Board regrets the delay, the Veteran’s claim must be remanded for a new medical opinion before the Board is able to decide on the merits. This is because the January 2020 VA disability examination did not substantially comply with the Board’s November 2019 remand directives. Also, it was not sufficient to evaluate his disability. A remand by the Board to the AOJ confers on the Veteran, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Another remand is not required when the examiner substantially complied with the Board’s remand order. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Substantial compliance with the remand order is shown when the VA’s actions resolve the issue that required the remand order. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Also, whenever the Board remands a claim for a VA medical examination, as it has done here, the Secretary must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion is adequate when, among other things, it describes the disability with enough detail for the Board to evaluate the claimed disability. D’Aries, 22 Vet. App. at 104. The record reflects that, before the Veteran entered service, he had an idiopathic seizure. See December 8, 1995, Emergency Room Clinical Report; December 14, 1995, Private Medical Record. The Veteran confirmed he had a seizure before he entered service but contended it is not connected to the ones associated with his diagnosed seizure disorder. See Transcript dated September 2019 at 8. He also claimed the stress from basic training and his duties as a base operator and network communications aggravated his seizure disorder. Id. at 7. Later, in October 2019, the VA received a medical opinion from K.K., MD, and A.N.R., APRN-CNP, that states the seizure the Veteran had during service was due to the high stress environment and cathode ray tube (CRT) monitors. She explains that “CRT monitors have been known to aggravate seizure disorders due to the flickering that can occur repetitively.” See October 2019 Medical Opinion by K.K., MD, and A.N.R., APRN-CNP. In November 2019, the Board remanded the Veteran’s claim to the AOJ for a VA disability examination. The remand directed the examiner to, among other things, consider the Veteran’s testimony during his September 2019 Board hearing. See November 2019 Board Remand at 4. In January 2020, the Veteran underwent a VA disability examination for his seizure disorder. The examiner acknowledged the Veteran worked in front of flashing computer monitors and started having seizures afterwards. But, without explanation, the examiner concluded “there is no evidence the Veteran’s seizure disorder was aggravated by his service.” The examiner did not address the October 2019 Medical Opinion. See January 2020 VA Disability Benefits Questionnaire (DBQ) at 1; January VA Medical Opinion at 2. The examiner also opined that there is clear and unmistakable evidence that the Veteran’s seizure disorder pre-existed service. The examiner explained that the seizure the Veteran had before service is evidence that the condition pre-existed service. And the seizure in February 1997 is evidence the Veteran continued to suffer from the condition. Id. The last medical opinion of record was received by the VA in July 2020; it was prepared by a private physician, T.L.M., DO. Although he acknowledged the Veteran had a seizure in 1995 (before entering service), he stated that Veteran’s first seizure occurred after entering service; Dr. T.L.M. does not explain his reason for doing so. Moreover, he emphasized that the Veteran’s first seizure occurred in service when concluding the Veteran’s service and job description aggravated his seizure disorder. See June 2020 DBQ by T.L.M., DO. The Veteran is entitled to a medical opinion that complies with the Board’s remand directives. The Board’s remand directed the VA examiner to consider the Veteran’s Board hearing testimony, that includes his contention that stress aggravated his seizure disorder. Although the Veteran is not qualified to opine about factors that aggravate his seizure disorder, his is competent to report what a medical professional has told them. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). And his contention is supported by the October 2019 and June 2020 medical opinions. Since the examiner did not acknowledge or discuss this contention, it is not clear that the Veteran’s Board hearing testimony was fully considered. So, the claim must be remanded for a medical opinion that does. Stegall, 11 Vet. App. at 270-71 (1998). Also, the January 2020 VA disability examination did not acknowledge or discuss the conflicting October 2019 medical opinion. Although it was not mentioned in the Board’s remand, it was part of the record when the January 2020 VA disability examination was conducted. Since the examiner did not acknowledge or discuss the theory of aggravation raised in the October 2019 medical opinion, it is not clear she considered it. And because the issue of aggravation is before the Board, the examiner’s opinion did not provide enough detail for the Board to evaluate the Veteran’s disability. So, the claim must be remanded for a medical opinion that does. Barr, 21 Vet. App. at 311. The matter is REMANDED for the following action: 1. The claims files should be sent to an appropriate examiner to offer an addendum opinion as to the following questions: (a.) Did the Veteran’s seizure disorder clearly and unmistakably (i.e., it is undebatable) exist prior to his active service that began on January 10, 1996? If so, please explain how the conclusion was reached and include citation to the record where appropriate. (b.) Does the evidence clearly and unmistakably show (i.e., it is undebatable) that the Veteran’s seizure disorder was not aggravated by service? (c.) Does the evidence clearly and unmistakably show (i.e., it is undebatable) that any increase in disability due to the Veteran’s seizure disorder was due to the natural progression of that condition? (d.) If the answer to either (a) or (b) is no, then examiner should state whether it is at least as likely as not (i.e. a 50 percent chance or greater) that the Veteran’s seizure disorder manifested in service or is otherwise etiologically-related to the Veteran’s military service. The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Discuss the October 2019 medical opinion by K.K., MD, and A.N.R., APRN-CNP, that the Veteran’s seizure disorder is due to his high stress environment and exposure to CRT monitors. ii. Discuss the October 2019 medical opinion that the CRT monitors aggravate seizure disorders. iii. Discuss the June 2020 DBQ by T.L.M., DO, that opines the Veteran’s seizure disorder was aggravated by his active duty and job description. iv. Consider, and if necessary, discuss the Veteran’s September 2019 Board hearing testimony that describes his job while in service, to include days when stress levels suddenly go from 1 to 10. See Transcript Dated September 2019 at 4-6, 7. v. Discuss the Veteran’s contention that the seizure episode on December 8, 1995 (before entering service) differs from the seizures that occurred in service (the first was around July 4, 1996, and the second was on February 4, 1997). See Transcript dated September 2019 at 8-9. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.