Citation Nr: 21008394 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-30 810 DATE: February 16, 2021 REMANDED Entitlement to service connection for a seizure disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1970 to September 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision. In December 2019, the Board denied the claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court) and in September 2020, the parties submitted a Joint Motion for Remand (JMR). By way of a September 2020 Order, the Court granted the JMR, vacated the December 2019 Board decision, and remanded the matter for action consistent with the JMR. 1. Entitlement to service connection for a seizure disorder is remanded. In the September 2020 JMR, the parties agreed that the Board erred in relying on a June 2019 VA medical opinion, because it did not substantially comply with the Board’s August 2018 remand instructions. The June 2019 VA examiner’s negative nexus opinion was based on a finding that there was no seizure activity noted during service. In reaching that conclusion, the VA examiner did not acknowledge or discuss the Veteran’s written lay statement that he had experienced 2 seizure episodes during basic training. Significantly, the Board’s remand directive had instructed that for purposes of the VA examination, the examiner was to accept the Veteran’s contentions regarding seizure activity during basic training as true for purposes of the VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, consistent with the September 2020 JMR, the Board finds that remand is warranted for an addendum medical opinion that properly reviews and addresses the Veteran’s contentions and the medical evidence of record supporting the Veteran’s claim. The Board also notes that the Veteran’s August 1970 service treatment record (STR) indicated that he was recommended for EPTS (existed prior to service) separation for a seizure disorder pending disposition by the Medical Board. However, the Veteran’s military personnel records to include his Medical Board records have not been associated with the file. Upon remand these records should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s military personnel records to specifically include the Veteran’s Medical Board disposition records. 2. After the above development is completed, obtain an addendum opinion from the June 2019 VA examiner or if that examiner is unavailable another appropriate clinician to determine whether the Veteran’s pre-existing seizure disorder, which was noted on the January 1970 pre - induction examination, was aggravated by service. If a new examination is deemed necessary by the examiner, one should be scheduled. The examiner is asked to respond to the following: (a.) Does the Veteran have a seizure disorder that clearly and unmistakably (undebatable) pre-existed the Veteran’s military service? (b.) If a pre-existing seizure disorder is found, is there clear and unmistakable evidence (undebatable) that the Veteran’s pre-existing seizure disorder was not aggravated (worsened) by active duty service? In responding to this question, the examiner is asked to accept as true for purposes of the examination the Veteran’s June 2014 written lay statement that he experienced 2 seizures during active duty and discuss the relevance if any. (c.) If no pre – existing seizure disorder is found, is it at least as likely as not (50 percent or greater probability) that any current seizure disability had its onset during service or is otherwise related to active duty? Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.