Citation Nr: 1319131 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 07-16 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for memory loss and impaired concentration, to include as a chronic disability resulting from an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active duty for training from June 1990 to October 1990 and active duty from February 1991 to October 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2011, the Board denied the issues of entitlement to service connection for an adjustment disorder, memory loss and impaired concentration, and a right knee disorder. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a November 2012 memorandum decision, the Court vacated and remanded the issue of entitlement to service connection for memory loss and impaired concentration, and affirmed the issues of entitlement to service connection for an adjustment disorder and a right knee disorder. It is noted that in that August 2011 document, the Board remanded issues concerning the effective date of a 40 percent rating for a fibromyalgia and for a total rating. On page 10 of the Court's decision it is noted that an extraschedular review was not undertaken by the Board. The Board's decision indicated that appellant seemed satisfied with the 40 percent maximum schedular evaluation for fibromyalgia. If she is not so satisfied, she and her representative are free to make an extraschedular argument before the RO while the remaining issues are undergoing development. 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 The Board finds that further development is needed before the issue on appeal can be decided. In the February 2010 VA examination the VA examiner determined that the Veteran's memory and concentration problems were part of the already service connected fibromyalgia, which lead the Board to conclude in its August 2011 decision that there was no separate disability for which service connection could be established. In light of the November 2012 Court decision, however, the Board finds that an addendum opinion is necessary to allow the February 2010 examiner to explain her findings. The Board also finds that an opinion is needed that addresses whether the Veteran has a separate and distinct neuropsychological disability manifested by memory loss and concentration problems. Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to this claim and to ensure full compliance with due process requirements, a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA addendum opinion from the examiner who conducted the February 2010 VA examination, if possible. The examiner must provide reasoning for the finding that the Veteran's memory and concentration problems are part of the already service connected fibromyalgia. The examiner must also address whether the Veteran has a separate and distinct neuropsychological disability to include memory loss/concentration problems. If the Veteran's memory loss and concentration problems are attributed to other diagnoses, the examiner must explain in detail how that conclusion was reached. The claims folder must be made available to the examiner for review. All findings should be reported in detail. A complete rationale for all opinions should be provided. If the examiner who conducted the February 2010 examination is unavailable, the Veteran should be scheduled for another VA examination. The VA examiner should then address the questions set forth above. The claims folder must be made available to the examiner for review. All findings should be reported in detail. A complete rationale for all opinions should be provided. 2. Upon completion of the above requested development and any additional development deemed appropriate, the RO should readjudicate the remanded issue. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). _________________________________________________ MICHAEL D. LYON 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).