Citation Nr: 21016205 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-10 655 DATE: March 22, 2021 REMANDED Entitlement to service connection for seizures is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2008 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. Entitlement to service connection for seizures is remanded. The Veteran contends that he is entitled to service connection for seizures as a result of his military service. Specifically, the Veteran contends that he had no recent history of seizures and had not had one for at least 13 months prior to enlistment, and that it was the rigors of military training that caused his seizure and ended his military career. See August 2014 Notice of Disagreement (NOD), March 2016 VA Form 9. The Veteran’s pre-enlistment Report of Medical History dated November 2007 noted childhood seizures. See November 2007 Service Treatment Records (STR) at 5. The Veteran was diagnosed with seizure activity in January 1983 when he was 15 years old. See January 1983 Medical Treatment Records at 1. Review of the Veteran’s file shows that he was last treated in August 2005 for complaints of a seizure prior to entering the service. See August 2008 Medical Records Hurley Medical Center at 27-43. Based on this evidence, the Veteran’s seizures may be considered a pre-existing disorder that was “noted” upon entry to service. Under VA law, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Therefore, the proper standard to be used by an examiner for this aggravation claim is whether there is clear and unmistakable evidence demonstrating that the Veteran’s pre-existing headaches were not aggravated by his military service. For a disorder to be considered aggravated in service, there must be worsening of the underlying condition, not just temporary or intermittent flare-ups of the symptoms of the condition. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In February 2014, the Veteran presented to a Seizure Disorders (Epilepsy) Disability Benefits Questionnaire (DBQ) where he was diagnosed with tonic-clonic seizures or grand mal (generalized convulsive seizures). See February 2014 VA Seizure Disorders (Epilepsy) DBQ. The examiner opined that the Veteran’s seizure disorder clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by any in-service injury or illness. Id. at 4. The examiner evaluated the Veteran’s lay statements regarding that he woke up one morning feeling “disoriented.” Id. However, the examiner did not evaluate the Veteran’s in-service treatment for a seizure and subsequent follow up for a migraine associated with the prior night’s seizure. See January 2008 Service Treatment Record at 44-48. Therefore, an addendum opinion is needed to determine whether there is clear and unmistakable evidence demonstrating that the Veteran’s pre-existing seizures were not aggravated by his military service and to consider his lay contentions that the rigors of military training caused his seizure. The matter is REMANDED for the following action: 1. Appropriate efforts must be made to obtain all available treatment records dated since February 2014 not currently associated with the claims file. 2. Obtain an addendum opinion from the February 2014 examiner, if available. However, if it is not possible, then the AOJ should obtain an opinion from another qualified examiner. The claims folder must be made available to and be reviewed by the examiner. The examiner is asked to identify the following: (a) Was the Veteran’s pre-existing seizure disorder clearly and unmistakably not aggravated during his active service? (b) In providing the opinion regarding the aggravation of the Veteran’s pre-existing seizure disorder, the examiner should specifically comment on the Veteran’s STR for treatment of a seizure in service and the Veteran’s lay statements regarding the rigors of military training in causing his seizure. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.