Citation Nr: 22019158 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 15-19 613 DATE: March 31, 2022 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). 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 for further development. Most recently, the Board remanded the claim in March 2021 for further development, including a new VA examination with diagnostic testing completed by a neurologist. Although an examination was obtained in January 2022, the Board finds that a remand is still warranted to comply with the March 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 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. The Veteran contends that he has a diagnosis of epilepsy, claimed as a nervous system injury, that is related to his exposure to jet fuel chemicals in service and/or is secondary to his service-connected major depressive disorder and obsessive-compulsive disorder. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was provided with an updated VA examination and medical opinion in January 2022. The examiner offered a negative nexus opinion as to the nature and etiology of the Veteran's claimed epilepsy. In the March 2022 appellate brief, the Veteran's representative explicitly challenged the competency of the internist who provided the January 2022 opinion and requested "the curriculum vitae and other information about qualifications of the examiner that demonstrates that he was competent to provide an opinion on the specific etiology of Epilepsy and Petit Mal Seizures." Once the request is made for information as to the competency of the examiner, the Veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist. See Francway v. Wilkie, 940 F.3d 1304, at 1308 (Fed. Cir. 2019). A remand is required to obtain the requested information. Additionally, the Board highlights the fact that the March 2021 Board remand explicitly requested that the examination and opinion be performed by a "neurologist." As the January 2022 examination and opinion were completed by an internist and not a neurologist, the Board finds that the Veteran is entitled to a remand to achieve substantial compliance with the Board's remand instructions. See Stegall, 11 Vet. App. at 271. Finally, in the March 2022 appellate brief, the Veteran's representative noted that the Veteran complained of headaches in conjunction with several seizure events. According to the findings in The Journal of Epilepsy Research, a headache can be the sole manifestation of an epileptic seizure. Thus, the Board finds that a remand is required to consider the Veteran's reported headaches and whether these are evidence of seizures. The matters are REMANDED for the following actions: 1. Provide the Veteran with information to assess the competency of the author of the January 2022 VA medical opinion regarding the Veteran's epilepsy claim, to include resume or curriculum vitae, and any other requested or relevant information. Associate such information with the record and provide the Veteran and his representative a copy thereof. If any requested information cannot be obtained, document all efforts made and the reason the records cannot be obtained and inform the Veteran and his representative. 2. Obtain a VA examination and opinion regarding the nature of etiology of the claimed epilepsy from a NEUROLOGIST. The examiner must address the following: If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, including headaches as cited to in the March 2022 appellate brief, 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. The examiner is also asked to consider the assertions of the Veteran's representative presented in the March 2022 appellate brief stating that the Veteran complained of headaches in conjunction with several seizure events, and according to the findings in The Journal of Epilepsy Research, a headache can be the sole manifestation of an epileptic seizure. In short, does the Veteran have headaches which may be a manifestation of an epileptic seizure? 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. 3. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.