BVA9503723 DOCKET NO. 92-06 790 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESSES AT HEARING ON APPEAL Appellant, spouse, and sister-in-law ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran, who is the appellant in this case, served on active duty from July 1957 to September 1964. This case was previously before the Board of Veterans' Appeals (Board) in April 1994, at which time the Board denied service connection for a seizure disorder. In August 1994, pursuant to a motion by the veteran and the Secretary of the Department of Veterans Affairs (VA), the United States Court of Veterans Appeals (Court) vacated that decision and remanded the case for further development. REMAND Prior to its decision of April 1994, the Board developed additional evidence in this case. Specifically, it cited Cecil Textbook of Medicine 2203 (1992). In September 1993, the Board notified the veteran's representative and provided an opportunity to render additional argument or comment. The Board noted that it would consider additional evidence in the appeal only on written motion for good cause for its submission. In a subsequent decision, the Court stated that the veteran's right to submit additional evidence in such situations was not premised on a preliminary showing of good cause. Austin v. Brown, 6 Vet. App. 547 (1994) In a letter, dated September 16, 1994, the veteran's representative stated that he was going to submit additional medical documentation to support the veteran's claim and requested that the Board grant an extension of the time limit for filing that documentation. That documentation is not contained in the claims folder. In 1978, J. M. Frankum, Jr., M.D., and M. H. Harris, M.D., noted that the veteran had been taking medication for a duodenal ulcer since December 1964; that that medication contained phenobarbital; and that such medication could have suppressed the veteran's seizures until December 1965. The Board recognized that phenobarbital was often used to treat seizures but stated that it was speculative to conclude that it had suppressed the seizures in the veteran's case. In February 1992, the veteran had a hearing at the RO. He testified that the head injury which ultimately led to his seizures had been caused by a fall from a helicopter in Vietnam in 1963. It was unclear whether he had "engaged in combat" within the meaning of 38 U.S.C.A. § 1154(b) (West 1991). He also testified that after Vietnam, he was stationed at Fort Hood, Texas, and that his immediate supervisor at Fort Hood was "now" an inspector for Bell Helicopter in Arizona. In light of the foregoing, the case is REMANDED for the following actions: 1. The RO should contact the service department and obtain copies of the veteran's service personnel records, including DA Form 20, copies of assignment orders, copies of enlisted efficiency reports, and copies of any citations. All records so obtained should be associated with the claims folder. Failures to respond to any request or negative replies should be noted in writing. 2. The RO should contact the veteran and request that he provide statements from former fellow service members with whom he served in Vietnam. Those statements should include units of assignment, a description of duties, a description of any injuries sustained by the veteran, and descriptions of engagements with hostile forces. Any statements so received should be associated with the claims folder. Failures to respond to any request or negative replies should be noted in writing. 3. The RO should contact the veteran and ascertain the name and address of his former supervisor at Fort Hood, Texas, who is now employed as an inspector for Bell Helicopter in Arizona. The RO should then contact that individual and inquire whether the veteran had any medical problems or whether the veteran complained of headaches or dizzy spells or had blackouts during his assignment at Fort Hood. Any statement so received should be associated with the claims folder. Failures to respond to any request or a negative reply should be noted in writing. 4. The RO should contact the veteran's representative and request the additional medical documentation referred to in his letter of September 16, 1994. Any records so obtained should be associated with the claims folder. 5. When the foregoing actions are completed, the RO should forward the veteran's claims folder to a board certified neurologist for review to determine the etiology of the veteran's seizure disorder. In the subsequent report, the neurologist should cite the record and note the time of onset of any manifestations leading to the diagnosis of seizures. The neurologist should also render an opinion as to whether it was as likely as not that the dosage of Bentyl hydrochloride with phenobarbital, prescribed for the veteran in December 1964, could suppress the onset of seizures. Any further evaluation procedure felt to be necessary should be arranged in the usual manner by the RO. When the requested development has been completed, the RO should readjudicate the veteran's claim for service connection for a seizure disorder. Should the decision remain adverse to the veteran, he and his representative must be furnished a supplemental statement of the case and afforded an opportunity to respond. 38 C.F.R. 20.302(c) (1993). Thereafter, if in order, the claims folder should be returned to the Board for further appellate consideration. By this REMAND the Board intimates no opinion as to the final disposition of the issue. The purposes of the REMAND are to procure clarifying medical information and ensure compliance with due process of law. The veteran need take no action unless he is notified. ___________________________________ J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).