Citation Nr: 1307295 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 04-04 157 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for disability manifested by memory loss and concentration problems. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from July 1987 to August 1996. His service included active service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. §§ 3.2(i), 3.317(d) (2012). This matter initially came before the Board of Veterans' Appeals (Board) from a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In that decision, in pertinent part, the RO denied the Veteran's claim of service connection for posttraumatic stress disorder (PTSD) with memory loss and concentration problems. Jurisdiction over the Veteran's claim was transferred from the Los Angeles RO to the RO in San Diego, California, in August 2008. In May 2006 and again in March 2009, the Board remanded the matter for further notification, evidentiary development, and adjudication. In the May 2006 remand, the Board re-characterized the Veteran's PTSD claim as one for disability manifested by memory loss and concentration problems. This was done pursuant to the request of the Veteran and his representative. After completing the required notification and evidentiary development, the Appeals Management Center (AMC) re-adjudicated the claims, again denying them via the issuance of supplemental statements of the case (SSOCs), most recently in June 2010. The Board then denied the Veteran's claim in August 2010. The Veteran appealed the Board's 2010 decision to the United States Court of Appeals for Veterans Claims (Court), and in August 2012, the Veteran's representative and VA's General Counsel filed a Joint Motion to Vacate and Remand the Board's decision. The Court granted the Joint Motion in August 2012 and remanded the Veteran's claim. The basis for the Joint Motion was that the Board had failed to fully discuss all of the Veteran's theories of entitlement to service connection for a disability manifested by memory loss and concentration problems. (The Veteran testified before a Veterans Law Judge at a hearing at the RO in February 2006. As that Veterans Law Judge is no longer employed by the Board, the Veteran was provided another Board hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and 38 C.F.R. § 20.707 (2012). To that end, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in January 2009. Transcripts of both hearings have been associated with the Veteran's claims file.) REMAND Pursuant to the August 2012 Joint Motion, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for a disability manifested by memory loss and concentration problems. The Board notes at the outset that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). In addition, certain chronic diseases, such as psychoses, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection on a secondary basis is warranted when it is shown that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). The Court has held that this includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In its May 2006 remand, the Board sought VA examination and medical opinion concerning the Veteran's claimed disability manifested by memory loss and concentration problems due to an undiagnosed illness. The Board instructed the agency of original jurisdiction (AOJ) to ensure that any test necessary to arriving at diagnoses and medical nexus opinions was conducted. At September 2006 and May 2007 VA examinations, the Veteran was found to have complaints of memory loss and concentration problems that were attributed to an underlying diagnosis of depression. In particular, the September 2006 VA psychiatric examiner found that the Veteran "appears very focused on physical complaints and may be masking depressive or anxiety symptoms with this focus." That examiner also noted that the Veteran's psychiatric testing profile was "consistent with someone with strong physical or somatic complaints." At a May 2007 neurological examination, the VA examiner again attributed the Veteran's symptoms of memory loss and concentration problems to depression. However, as noted in the August 2012 Joint Motion, the VA examiners did not further discuss the possibility that the Veteran's symptoms-and any underlying diagnosis of depression-could be etiologically linked to a diagnosed disorder, thus potentially warranting service connection on a secondary basis under 38 C.F.R. § 3.310 (2012). Once VA undertakes to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). The Board thus finds that further development of the medical evidence relative to the claim is appropriate and necessitates a remand. Therefore, in light of the above, the Board finds that another VA psychiatric examination should be afforded the Veteran regarding his claim for disability manifested by memory loss and concentration problems, including as secondary to service-connected disorder. Such examination must include a medical opinion addressing the nature and etiology of any diagnosed disability manifested by memory loss and concentration problems. Assuming that the VA examiner finds that the Veteran experiences depression, or any other diagnosed disorder to which his complaints of memory and concentration problems are attributable, the examiner must discuss whether such diagnosed disorder is etiologically linked to service, or to the Veteran's service-connected disabilities. The examiner must also discuss whether, as found by the September 2006 VA examiner, the Veteran's complained-of symptoms "mask" a mood disorder secondary to service-connected disorder. In that connection, the Board notes that the Veteran is currently service connected for left ankle fracture, fibromyalgia, right shoulder degenerative joint disease, scar of the left ankle, and right ankle sprain. In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran must be sent a letter requesting that he provide sufficient information and, if necessary, authorization to enable VA to obtain any additional pertinent evidence not currently of record. The Veteran must also be invited to submit any pertinent evidence in his possession, and the AOJ must explain the type of evidence VA will attempt to obtain as well as the type of evidence that is his ultimate responsibility to submit. The Veteran must also be provided specifically with notice concerning the information and evidence needed to substantiate a service connection claim on the basis of secondary service connection. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 2. The Veteran must be scheduled for VA examination and must be notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2012). The entire claims file, to include a complete copy of this remand, must be made available and reviewed by the examiner. Any examination report must reflect consideration of the Veteran's documented medical history and assertions. The examiner must note and detail all reported symptoms related to the Veteran's stated memory loss and concentration problems. The examiner must provide details about the onset, frequency, duration, and severity of all complaints relating to each claimed symptom, and indicate what precipitates and what relieves it. If additional examination is deemed warranted by other specialists in order to ascertain the nature or etiology of the symptoms, this development should be conducted. The examiner must expressly state whether there are clinical, objective indications that the Veteran is suffering from symptoms relative to memory loss and concentration problems. If there are objective indications that the Veteran is suffering from such symptoms, the examiner must determine whether these symptoms can be attributed to any known clinical diagnosis. For each diagnosed disability, the examiner must provide an opinion as to the medical probabilities that the condition is attributable to the Veteran's period of military service. The examiner must also opine as to whether it is at least as likely as not that any such diagnosed disorder has been caused or made chronically worse by service-connected disability. The examiner must further discuss whether the Veteran's symptoms are part and parcel of any service-connected disability or whether these problems are "masking" any mood disorder that is related either to service or to service-connected disability, such as fibromyalgia. It should be specifically noted whether fibromyalgia causes any depression that in turn may be causing memory and/or concentration problems. In so opining, the examiner must discuss the findings of both the September 2006 and the May 2007 VA examiners. The examiner must set forth all examination findings, along with the complete rationale for the opinions expressed. 3. The adjudicator must ensure that the requested examination and medical opinions answer the questions presented in this remand. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, the claim on appeal must be adjudicated in light of all pertinent evidence and legal authority. If the benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).