Citation Nr: 21006876 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-37 798 DATE: February 5, 2021 REMANDED Entitlement to service connection for a seizure disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2010 to April 2014. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO), which denied service connection for seizure disorder and scar on the back of the head. The Veteran timely appealed both issues. In an October 2019 rating decision, service connection for a scar on the back of the head was granted; consequently, there no longer remains a claim in controversy. The Board notes that the Veteran also has appeals pending for entitlement to service connection for sleep apnea, increased evaluation for pseudofolliculitis barbae and adjustment disorder, and individual unemployability, which were remanded by the Board in January 2020. The Board sent the Veteran a letter on January 22, 2021, informing him that additional evidence had been received after issuance of the June 2020 supplemental statement of the case (SSOC). The Veteran was provided an opportunity to waive initial review of this evidence by the Agency of Original Jurisdiction (AOJ). The Veteran was given 45 days to respond; to date the Board has not received a response and the time period has yet to expire. Thus, these matters are not ready for appellate disposition and will be not be addressed at this time. Entitlement to service connection for a seizure disorder The Veteran contends he has a seizure disorder as a result of an in-service golf club injury to the back of his head. VA conceded the incident when service-connection was awarded for scar of the head as a result of the golf club injury. The Board finds the evidence is insufficient to resolve the Veteran’s claim. The Veteran was afforded a VA examination in September 2019. The VA examiner opined that a seizure disorder was less likely than not proximately due to or the result of the Veteran’s service-connected scar on the back of the head because the Veteran denied any history of seizures. The Board finds the opinion inadequate as the examiner failed to address whether any currently diagnosed seizure disorder was aggravated by the service-connected condition. More importantly, the examiner failed to address direct causation, although the Board is aware that the examiner was not posed the question. Service treatment records confirm the Veteran sustained head wound from being struck in the head by a golf club in 2011. Computerized tomography (CT) of the head showed no evidence of acute intracranial abnormality and no apparent fracture. Post-service, records from Garden City Hospital dated in January 2018 contain a discharge assessment of absence epilepsy or absence seizures. These records also contain a prescription for Levetiracetam (Keppra), which is used to treat various types of seizures. See UpToDate, “Levetiracetam: Drug Information,” www.uptodate.com/contents/levetiracetram-drug-information#f187618 (Last accessed January 26, 2021). This medication and its use, as well as service and post-service treatment records, were not addressed by the VA examiner. Thus, remand is necessary to obtain an opinion regarding whether the Veteran currently has a seizure disorder, and its relation, if any, to service or a service-connected condition. Review of the record shows that additional relevant evidence was added to the file by VA since the October 2019 Statement of the Case (SOC) was issued and after the claim was certified to the Board. The Veteran has not waived AOJ review of this evidence. Furthermore, this evidence was not submitted by the Veteran and therefore there is no basis for a waiver under 38 C.F.R. § 20.1304 (c). Thus, this claim must also be returned to the AOJ for consideration of the newly received evidence and the issuance of an SSOC. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination for his claimed seizure disorder. The electronic file, including a copy of this remand order, must be made available to the examiner in conjunction with the examination. All pertinent findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. After a review of the file, the examiner should opine whether the Veteran currently has a seizure disorder and if so, it at least as likely (a) began during service or (b) is otherwise the result of a golf club injury to the back of the head in 2011 or (c) manifested within the year following his discharge from service in April 2014? In the alternative, the examiner must opine whether any currently diagnosed seizure disorder is proximately due to or aggravated beyond its natural progression the service-connected scar on the back of his head. In rendering this opinion, the examiner must address the following: service treatment records dated in 2011 showing the Veteran sustained a head wound from being struck in the head by a golf club; the 2011 CT of the head showing no evidence of acute intracranial abnormality and no apparent fracture; and January 2018 records from Garden City Hospital containing a prescription for Levetiracetam (Keppra) and a discharge assessment of absence epilepsy or absence seizures. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal in light of all the evidence of record, to include evidence added to the claims folder after the October 2019 SOC was issued. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a SSOC and allow an appropriate time for (CONTINUED ON NEXT PAGE) response. Thereafter, return the file to the Board for further appellate consideration. K. L. Wallin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.