Citation Nr: 21013837 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-19 613 DATE: March 10, 2021 REMANDED Entitlement to service connection for epilepsy, claimed as a nervous system injury, to include as secondary to service-connected major depressive disorder and obsessive-compulsive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty with the Air Force from December 1972 to December 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) and is in VA’s legacy appeals system. The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in August 2018. A transcript of the proceeding has been associated with the claims file. In December 2018, April 2020 and October 2020, the Board remanded the appeal. While the Board regrets further delay, remand is again required to ensure compliance with the prior Board remand, and to afford the Veteran every possible consideration. In this regard, pursuant to the most recent remand, a VA examination and opinion was obtained in December 2020. The examiner found that the Veteran did not have a current diagnosis of epilepsy, reasoning that the Veteran was not on any medication and had not had any seizures for years. However, the Board notes that no current testing was performed, and the Veteran has described episodes of “his brain locking up.” The Veteran’s representative, in a February 2021 brief, has argued that these episodes are actually episodic focal seizures. Accordingly, the Board finds that current diagnostic testing should be performed. Additionally, while the examiner stated, “…there are no conclusive studies that show that jet fuel causes long term effects on the central nervous system,” she did not specifically explain any consequence of his lead exposure. The Board notes that the Veteran’s service treatment records show several positive urinalysis screens for lead. Furthermore, the examiner suggested that the Veteran’s epilepsy pre-existed service, as he detailed two injuries as a child when he hit his head and stated that after the second accident he started having trouble with concentration, stating, “It seems my mind goes blank when people tell me things and that my brain doesn’t capture what my ears hear.” Although the VA examiner suggested that the Veteran’s epilepsy pre-existed service, the Veteran’s Report of Medical History, completed at service entrance, was negative for epilepsy and periods of unconsciousness, and his entrance examination detected no neurological disorders. Thus, the Board finds that a neurological disorder was not noted at entrance to service. See Crowe v. Brown, 7 Vet. App. 238, 240 (1994). Therefore, the Veteran is presumed sound upon entry into service. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Accordingly, further opinion is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed nervous system injury with a neurologist. The examiner must review the claims file and conduct current diagnostic testing. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a. Does the Veteran have now, or has he had at any time since October 2010, a nervous system condition? In rendering an opinion, the examiner should consider the January 1985 abnormal EEG and a follow-up CT scan showing a right temporal lobe epilepsy, and the Veteran’s current description of his brain “locking up” when he attempts some simple tasks, which his representative has argued constitute episodic focal seizures. If the examiner does not make a current diagnosis of right temporal lobe epilepsy, then they must explain whether the diagnosis made in January 1985 was mistaken, the current condition is a progression of the original condition, or the original condition resolved. b. If a current diagnosis is made, then opine whether the disability clearly and unmistakably (undebatable) preexisted the Veteran’s service. c. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably NOT aggravated by service. d. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether is it at least as likely as not that epilepsy (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? e. If not, is it at least as likely as not (50 percent probability or greater) related to service, including in-service exposure to lead, jet fuel (JP-4 containing 2,5-Dimethylhexane), or solvents such as methyl ethyl ketone? The examiner should note the Veteran’s service treatment records showing positive urinalysis samples for lead. f. If not, is the condition at least as likely as not caused OR aggravated by service-connected major depressive disorder and obsessive-compulsive disorder? The Veteran’s representative cited the following article in support of the claim that his service-connected psychiatric disabilities may have caused or aggravated his epilepsy: Depression and epilepsy: a new perspective on two closely related disorders.   2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.Z., 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.