Citation Nr: 1330505 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-30 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for memory problems, to include as due to an undiagnosed illness. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1992 to May 1995 and from December 2000 to April 2007, to include service in the Southwest Asia Theater of Operations from January 2004 to February 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2012, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. When the case was previously before the Board, the issues on appeal included entitlement to service connection for speech problems, to include as due to an undiagnosed illness. Service connection for this disability, as associated with chronic fatigue syndrome (CFS), was granted in a May 2013 rating decision. The award of service connection constitutes a full grant of the issue on appeal, and the claim for entitlement to service connection for speech problems is no longer before the Board. In its September 2012 decision and remand, the Board referred claims for entitlement to service connection for an anxiety disorder and panic attacks and entitlement to service connection for sleep apnea to the Agency of Original Jurisdiction (AOJ) for development and adjudication. The record currently before the Board does not indicate that these claims have been adjudicated. Therefore, the Board does not have jurisdiction over them and they are again referred to the AOJ for the appropriate action. 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 additional development is necessary before a decision can be rendered in the current appeal. With respect to the claim for entitlement to service connection for memory problems, the Board finds that this claim is inextricably intertwined with the pending claim for service connection for an anxiety disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when a final Board decision on one issue cannot be rendered until the other issue has been considered). The record establishes that the Veteran's memory loss is associated with the claimed anxiety disorder, diagnosed as a panic disorder with agoraphobia by the February 2013 VA psychiatric examiner. The VA examiner specifically found that the Veteran's memory problems were part of his currently nonservice-connected anxiety disorder. Therefore, a final decision on the memory loss aspect of the disability cannot be rendered without adjudication of the underlying claim for service connection for an anxiety disorder. Similarly, the Board finds that the Veteran's claim for TDIU is also inextricably intertwined with the pending claims for service connection for an anxiety disorder and sleep apnea. After adjudication of the pending claims, the Veteran should be provided a VA examination to determine whether his service-connected disabilities in combination have rendered him unemployable. In the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294 (1994). An addendum medical opinion was obtained in May 2013 from the VA examiner who performed a February 2013 examination addressing the Veteran's speech problems, but the examiner merely noted that there were no central nervous system disabilities or general medical issues that prevented the Veteran from working. No rationale was provided for this opinion and the Board notes that the Veteran is currently in receipt of a combined disability evaluation of 90 percent for disabilities including a mood disorder, headaches, vertigo, acid reflux, and CFS. The May 2013 medical opinion is not adequate and a new VA examination and medical opinion addressing the Veteran's employability are required. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claims for entitlement to service connection for an anxiety disorder and panic attacks and service connection for sleep apnea. 2. After completion of the foregoing, schedule the Veteran for a VA examination with an examiner with the appropriate expertise to render a medical opinion addressing the Veteran's employability. The claims file must be made available to and be reviewed by the examiner. The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then, readjudicate the claims on appeal. If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MILO H. HAWLEY 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) (2013).