Citation Nr: 1315095 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 11-11 742A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the removal of a pituitary tumor. 2. Entitlement to service connection for loss of sense of smell. 3. Entitlement to service connection for memory loss. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant in this case is a Veteran who reportedly had active duty service from February 1958 to February 1960. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were remanded by the Board in July 2012 for additional development. However, as the remand orders of the Board were not complied with, further remand is mandated due to the RO's failure to follow the directives in the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that in the October 2010 notice of disagreement and in a subsequent January 2013 statement, the Veteran's (former) attorney requested that the Board review all of the issues decided in the October 2009 rating decision, including the failure to award a total disability rating based on individual unemployability due to service-connected disability (TDIU). A review of the record shows that the Veteran has not yet established service connection for any disability. As this is a threshold requirement for establishing entitlement to TDIU (see 38 C.F.R. § 4.16), the Board finds that this matter is neither raised by the record nor ripe for review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As noted in the introduction, the claim was previously before the Board in July 2012. At that time, the Board determined that additional evidentiary development was necessary. As the remand orders of the Board were not complied with in full, further remand is mandated. Stegall, supra. Specifically, the Board found that in order to resolve the claim, a medical examination was warranted to obtain a medical opinion as to whether the Veteran's pituitary tumor had its onset in service, or within one year of his separation from service, or is somehow otherwise etiologically related to his service. Specifically, the examiner was asked to "offer a rationale for all opinions given with reference to pertinent evidence (including the medical articles of record)." The Veteran was afforded a VA examination in December 2012. The examiner opined that the Veteran's pituitary tumor was less likely than not incurred in or caused by the service. However, the examiner does not appear to consider the medical articles of record, which explain that pituitary tumors are slow-growing tumors and thus may be present for many years (without a person being aware) before they become symptomatic. The Board also notes that the Veteran submitted lay statements indicating symptoms prior to the pituitary tumor was identified and removed in 1975. Regarding the Veteran's claims seeking service connection for loss of sense of smell and memory loss, to include as secondary to the removal of a pituitary tumor, these matters are inextricably intertwined with the appeal seeking service connection for the removal of a pituitary tumor. Hence, consideration of whether the Veteran is entitled to service connection for loss of sense of smell and memory loss must be deferred pending resolution of that claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated accordingly). Accordingly, this case must again be REMANDED to effectuate the evidentiary development necessary to fully and fairly adjudicate the Veteran's claim. The AMC/RO is directed to the specific development instructions delineated in the numbered paragraphs herein below. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO must contact the December 2012 VA examiner and inform the examiner that she should provide the complete rationale for all opinions expressed in her December 2012 examination report, to include consideration of the medical articles submitted by the Veteran in April 2011. Specifically, the examiner should discuss whether the Veteran's pituitary tumor was slow-growing and may have been present for years prior (to include when in service). If the December 2012 VA examiner is no longer available, the Veteran should be scheduled for another VA examination, to include review of the claims file, with the new examiner to respond to the same questions posed in the Board's July 2012 remand. The opinions should be supported by a detailed rationale with reference to pertinent evidence (including the medical articles of record). 2. Following completion of any indicated development, the AMC/RO must readjudicate the claim. If any benefit sought on appeal remains denied, the RO must furnish the Veteran a supplemental statement of the case and afford him a reasonable opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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).