BVA9501020 DOCKET NO. 91-18 950 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a seizure disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had periods of active service from May 1968 to April 1971 and from May 1971 to May 1975. This case is on appeal from an August 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The case was previously before the Board in November 1992, at which time service connection for dental trauma to teeth numbers 23 and 24 was granted. The issue of entitlement to service connection for a seizure disorder was deferred pending completion of development of the evidence, requested on remand. The case has been returned to the Board for appellate review. REMAND Subsequent to the Board's November 1992 remand, additional evidence was developed and the RO issued a rating decision in December 1993, denying service connection for a seizure disorder. It considered primarily medical evidence dated in the 1990's. The veteran was issued a supplemental statement of the case in December 1993. It was noted in the supplemental statement of the case that the veteran had not furnished requested information regarding the complete address of a Dr. Kenneth Gamblin. The RO noted that while VA has a duty to assist a veteran in the development of facts pertinent to his claim (38 U.S.C.A. § 5107(a) (West 1991)), there is an obligation on the veteran's behalf to assist in the development of a claim. With regard to Dr. Gamblin, the evidence of record is inconsistent. The veteran testified at a RO hearing in July 1985 that he first saw Dr. Gamblin in 1977 at the Colorado Springs Medical Center, in Colorado Springs, Colorado, and at that time he was first prescribed medication to treat his seizure disorder. He stated that at the time he was in the El Paso County Jail when he had his first seizure, and was seen thereafter by Dr. Gamblin. However, other evidence of record indicates that his seizures may have occurred while he was incarcerated at the El Paso County Jail in 1979. While it is asserted that his in-service boxing may have caused his seizures, it is noted that, on VA medical examination in December 1990, he provided a clinical history of being knocked unconscious in a car accident as a child, and being aware of no other head trauma since that time. Other evidence of record includes a copy of a notice from the Social Security Administration (SSA), dated in September 1984, denying the veteran disability benefits. Reference was made to reports from Kenneth Gamblin, M.D., dated August 21, 1984, records from the Colorado Springs Medical Center dated July to August 1979, and records from the Hillside Community Health Center, dated in July 1984. These records are not in the claims folder. With regard to the Colorado Springs Medical Center, an October 1993 communication of record from an official at that facility indicated there was no record of the veteran in the facility's system. Therefore, the only apparent access to such records from that facility are through the SSA. Also, as the veteran's accredited representative has pointed out in his December 1994 argument on appeal, the most recent supplemental statement of the case of record is dated in December 1993, and following a VA rating examination in January 1994, he was not provided an additional supplemental statement of the case showing consideration of the findings on that examination. Thus, the veteran's representative argues that the veteran's due process rights may have been compromised in this case as he has not had an opportunity to respond to that new evidence. In view of the foregoing, the Board believes that additional development, both procedural and substantive, is required and the case is REMANDED to the RO for the following actions: 1. The RO should again contact the veteran and request that he provide the names and addresses of any health care providers who treated him for symptomatology of a seizure disorder since leaving service in 1975, and specify the approximate dates of treatment, if possible. Then, after authorization is obtained from the veteran, the RO should obtain copies of any treatment records identified by the veteran which are not already part of the record. 2. The SSA should be contacted and asked to provide copies of the records which were available to it at the time of its September 1984 decision, denying the veteran entitlement to Social Security disability benefits. 38 U.S.C.A.§ 5106 (West 1991); 38 C.F.R.§ 3.201(a) (1993). 3. Following the foregoing, the RO should schedule the veteran for a VA neurological examination. The examiner should be specifically requested to provide an opinion, with detailed rationale, as to the etiology of any seizure disorder found on examination. In arriving at this opinion, the examiner should indicate the degree to which reliance is placed on the objective documentation of record as compared to the history reported by the veteran. The claims folder should be made available for review by the examiner prior to the examination. 4. Then, in light of the evidence obtained pursuant to the requested development, the RO should readjudicate the veteran's claim for entitlement to service connection for a seizure disorder. The veteran and his representative should be issued another supplemental statement of the case. The veteran and his representative should then be afforded an appropriate period of time within which to respond to the supplemental statement of the case. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to the final outcome warranted. No action is required of the veteran until he is notified by the RO. J.F. GOUGH 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).