Citation Nr: 1324116 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-47 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for cognitive disorder, to include as secondary to the service-connected acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from April 1955 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to service connection for PTSD. In March 2013, the Board granted entitlement to service connection for an acquired psychiatric disorder other than a cognitive disorder and remanded the above claim for additional development. As noted in the March 2013 remand, the above issue was part of an expansion of the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). The matter again is before the Board. The Veteran testified at a July 2011 hearing held before the undersigned Veterans Law Judge via videoconference from the RO on the general issue of entitlement to service connection for an acquired psychiatric disorder. A transcript of the hearing is of record. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure a total review of the evidence. 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 In this case, the Veteran and his representative appear to claim that he has a current cognitive disability that was caused or aggravated by his service-connected psychiatric disorder. Despite the extensive procedural development already undertaken, the Board concludes that another remand is required to allow for further development. In that regard, pursuant to the March 2013 Board remand the Veteran was afforded a VA psychiatric examination in June 2013. As to causation, the examiner provided an adequate explanation as to the cause of the Veteran's current cognitive problems, specifically his 2009 closed head trauma with apparent resulting subdural hematoma, rather than the service-connected psychiatric disorder. As to the question of aggravation, however, the Board does not find the June 2013 VA examiner's opinion to be adequate. In that regard, the examiner stated that it was not at least as likely as not that the cognitive disorder was aggravated beyond the natural progress by the service-connected posttraumatic stress disorder (PTSD). The rationale was, "There was no report of pre-existing cognitive complaints that might have been aggravated by his previous psychiatric conditions." This response addresses only the period "pre-existing" (i.e. prior to) the 2009 closed head trauma. As noted by the examiner later in the opinion, however, the Veteran has been diagnosed by multiple medical providers with PTSD and depression in the period subsequent to the 2009 head injury and resulting subdural hematoma. By way of example, the Board notes that in May 2010 a VA staff physician indicated that the PTSD was the same. In December 2011 and September 2012, the same staff physician reported the PTSD symptoms were stable. In July 2012, the Veteran was diagnosed as having depression by a VA psychologist. While the examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD or depression at the time of the examination, the opinion failed to consider whether such diagnosed disabilities subsequent to the 2009 subdural hematoma and prior to the June 2013 VA examination aggravated the Veteran's cognitive disorder. See generally McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). As such, an addendum opinion is needed to address the foregoing. The AMC also should take the opportunity to obtain VA treatment records dating from June 2013. Accordingly, the case is REMANDED for the following action: (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. Obtain the Veteran's medical records from all appropriate VA medical facilities for treatment received from June 2013 to the present. If there are no such records, this should be documented for the record. 2. Thereafter, obtain a supplemental opinion from the psychologist who provided the June 2013 VA medical opinion. If the psychologist is not available, obtain an opinion from another appropriate medical professional. The claims file must be made available to and reviewed by the reviewer, to include all applicable electronic records. The reviewer is asked to provide an opinion regarding whether it is as at least as likely as not (50 percent probability or more) that the Veteran's cognitive disorder was aggravated beyond its natural progression by any of the Veteran's diagnosed psychiatric disabilities at or for any period after the 2009 closed head trauma with resulting subdural hematoma. In that regard, and as noted in the June 2013 VA examination report, the Veteran has been diagnosed with depression and PTSD during this period, although the examiner concluded that the Veteran did not meet the DSM-IV criteria for either diagnosis at the time of the June 2013 VA examination. It would be helpful if the examiner/reviewer would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The reviewer should provide a complete rationale for any opinion provided. 3. After the above is complete, readjudicate the Veteran's claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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). _________________________________________________ S. S. TOTH 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).