Citation Nr: 21005104 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-14 210 DATE: January 29, 2021 REMANDED Entitlement to service connection for a disability manifesting in seizures, including epilepsy and arteriovenous malformation (AVM). REASONS FOR REMAND The Veteran served on active duty from October 1973 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. This matter was previously remanded by the Board in in June 2018 and July 2020 for further development. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for a disability manifest in seizures to include epilepsy and arteriovenous malformation (AVM). Entitlement to service connection for a disability manifesting in seizures. The Veteran contends that service connection for a disability manifesting in seizures is warranted as he experienced tingling in his fingers and was exposed to toxins and/or radiation in-service. See October 2017 Hearing Transcript. He testified that he first experienced the tingling in his fingers while stationed in Korea and it had continued and worsened since. He further testified he has a brain tumor/ AVM which was detected in 1993. The Veteran is diagnosed with epilepsy. See December 2019 VA examination. An April 2013 VA examiner opined the Veteran’s seizures are due to a brain AVM and the etiology of AVM is not clear. VA treatments reflect that the Veteran’s AVM was diagnosed at the latest in 1996. See December 2005 VA Treatment Records. A September 2020 VA medical examiner also opined the etiology of the Veteran’s seizure disorder is secondary to his AVM. However, an etiology opinion as to the AVM was not provided. Furthermore, the September 2020 VA medical examiner opined, as requested, the tingling sensation in the Veteran’s fingers is neither sensitive nor specific to a seizure disorder/epilepsy. However, the examiner did not opine whether the tingling was related to the AVM. A medical opinion addressing the etiology of the Veteran’s AVM is needed to include whether it is a congenital disease or defect. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from April 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any disability manifesting in seizures. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Is the Veteran’s AVM a congenital defect, congenital disease, or neither? Please explain why. (A defect is a condition that can neither improve nor worsen. A congenital disease, for VA adjudication purposes, is a congenital condition that is subject to improvement and/or worsening.) (b) If the Veteran’s AVM is a congenital defect, is it subject to a superimposed disease or injury during service that resulted in additional disability? Please explain why. (c) If the Veteran’s AVM is a congenital disease, is there clear and unmistakable evidence that it pre-existed service? Please explain why. The examiner must use the clear and unmistakable evidence standard. The examiner may not solely rely on the absence of medical treatment records during and immediately after service. (d) If the Veteran’s AVM is a congenital disease and it clearly and unmistakably pre-existed service, is there clear and unmistakable evidence that either (i) there was no increase in disability during service, or (ii) any increase in disability during service was due to the natural progression of the disease? Please explain why. The examiner must use the clear and unmistakable evidence standard and discuss the previous note that the Veteran had tingling in his fingers during service. (e) If the Veteran’s AVM is a congenital disease that did not clearly and unmistakably pre-exist service, or that it pre-existed service but did not clearly and unmistakably increase in severity beyond natural progression during service, is it at least as likely as not (50 percent or greater probability) that the Veteran’s AVM is related to service? Please explain why. In this circumstance only, the Veteran would be presumed sound upon entering service and the examiner may not rely on the presence of the disability prior to service. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board EJ Richardson 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.