Citation Nr: 1324809 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 08-09 860A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a disorder manifested by memory loss, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army National Guard (ARNG) from: June 10, 1987 to September 30, 1987; September 27, 1990 to May 13, 1991; and from February 2, 2003 to August 5, 2003. VA treatment notes within the claims file indicate that he also has completed subsequent ARNG service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). In the rating action, the RO granted service connection for a left knee disability and a left elbow disability. However, the RO also denied service connection for: depression and posttraumatic stress disorder (PTSD); headaches; memory loss; blurred vision; inability to sleep; and joint pain. In June 2006, the Veteran filed a notice of disagreement (NOD) in regard to the denials of service connection for PTSD, headaches, memory loss, blurred vision, inability to sleep, and joint pain. In March 2008, the RO issued a rating decision granting entitlement to service connection for PTSD as well as a statement of the case (SOC) as to the issues of service connection for headaches, memory loss, blurred vision, inability to sleep, and joint pain. The Veteran did not file a second NOD in regard to the effective date or disability rating assigned for PTSD, but filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2008 in regard to the issues addressed in the March 2008 SOC. In October 2011, the Board denied service connection for blurred vision and remanded the remaining claims on appeal to the RO, via the Appeals Management Center (AMC), for additional development and consideration. The Board specifically ordered the conduct of additional examinations as well as the issuance of a supplemental SOC (SSOC). Subsequently, in March 2012, the RO issued a rating decision granting service connection for fibromyalgia, to include joint pain, sleep disturbance, and headache, and assigning a 40 percent disability rating effective July 11, 2011. Although there is no indication in the claims file that the Veteran filed an NOD with the RO's March 2012 grant of service connection, the AMC then issued a September 2012 SSOC on the issue of the Veteran's entitlement to a rating in excess of 40 percent for fibromyalgia and recertified that issue to the Board. However, since the rating action issued in March 2012 constitutes a full grant of the benefits sought on appeal in regard to sleep disturbance, joint pain, and headache, and because the Veteran did not file a timely NOD to that rating action, no such increased rating claim is before the Board. AB v. Brown, 6 Vet. App. 35, 39 (1993); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board observes that the September 2012 "SSOC" refers to the service-connected fibromyalgia as "claimed as headaches, joint pain, memory loss, and sleep impairment," but the rating decision issued in March 2012 addressed only the issues/claims of joint pain, sleep disturbance, and headache - the claim regarding memory loss was not incorporated by reference or separately addressed. As such, that issue remains on appeal. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The virtual file contains additional medical evidence that has been reviewed by the Board. The appeal - which now consists only of the claim for service connection for a disorder manifested by memory loss - is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board's review of the claims file reveals that further RO action in regard to the appeal is warranted, even though such will, regrettably, further delay an appellate decision. As an initial matter, and as noted above, the Board observes that VA treatment records associated with the claims file reflect that the Veteran has completed additional ARNG service. However, no ARNG records of treatment or examination dated past 2003 are associated with the claims file. Pertinent law requires VA to make as many requests necessary to obtain relevant military records. 38 C.F.R. § 3.159(c) (2) (2012). The record also reflects that there are outstanding VA medical records which may be pertinent to the claim. Specifically, the claims file indicates that the Veteran receives on-going VA care from the Central Alabama Veterans Healthcare System, but the most recent treatment note within the (virtual) claims file is dated December 7, 2011. The RO/AMC must take appropriate steps to gather any subsequent records. As the VA treatment notes that are currently associated with the claims file indicate that the Veteran also receives care from a private physician, Dr. Kidd, the RO/AMC must also request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent private treatment records. In October 2011, the Board directed the RO/AMC to obtain medical opinions in regard to each of the conditions for which the Veteran was seeking service connection. In specific regard to memory loss, the Board determined that prior examinations were inadequate because they did not reflect that specific testing was conducted to determine whether or not the Veteran experienced such disability. Although additional examinations were conducted in later October 2011, the examiners did not specifically address the Veteran's complaints of memory loss - testing still has not been conducted to determine whether or not the Veteran experiences such disability. The United States Court of Appeals for Veterans Claims (Court) has held that VA has a duty to ensure compliance with the terms of a remand by the Board (Stegall v. West, 11 Vet. App. 268, 271 (1998)) and here, the agency of original jurisdiction (AOJ) did not substantially comply with the Board's remand orders. Another examination is required. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal in light of all pertinent evidence and legal authority. Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate sources to determine the dates of any subsequent (after 2003) ARNG service completed by the Veteran and to obtain copies of any records of treatment and examination generated during any such subsequent service. Associate the records, or a negative search response, with the claims file and, if records are unavailable, appropriately notify the Veteran as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Gather any outstanding VA treatment records - i.e. records generated after December 7, 2011 - and associate them with the claims file. If no such records are available, include documentation of the unavailability in the claims file. 3. Afford the Veteran an additional opportunity to submit any private evidence that is not within the current record. Provide him with forms authorizing the release of any outstanding private treatment records - to specifically include, but not limited to, records from Dr. Kidd. Make at least two (2) attempts to obtain records from any identified source and associate available records with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo appropriate VA examination(s) to determine if he experiences memory loss due to any incident of his military service, to include undiagnosed illness. The entire claims file must be made available to the individual(s) designated to examine the Veteran, and the examination report(s) should include discussion of the Veteran's documented medical history as well as his assertions, to particular include those made in regard to undiagnosed illness and his Gulf War service. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), to include testing for traumatic brain injury (TBI) if deemed appropriate by the examiner. All clinical findings should be reported in detail. The examiner should diagnose any current disorder manifested by memory loss and, if such disorder exists, render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any such disorder began during service or as a result of any incident of the Veteran's service, to include his Gulf War service, and/or represents a symptom of undiagnosed illness. The examiner should provide complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notices of the date and time of the examination sent to him by the pertinent VA medical facility. 6. Readjudicate the remanded claim. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). _________________________________________________ MARJORIE A. AUER 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).