Citation Nr: 1601437 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 07-32 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include dementia due to head trauma. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The Appellant and E. T., Ph.D. ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In a decision of January 2009, the Board denied entitlement to service connection for an acquired psychiatric disorder, including dementia. That determination was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court) which, in a February 2011 Memorandum Decision, vacated the Board's January 2009 decision, and, in so doing, remanded the Veteran's case to the Board for action consistent with that Memorandum Decision. In a decision of January 2012, the Board once again denied entitlement to service connection for an acquired psychiatric disorder, to include dementia. That determination was again appealed to the Court, which, in a June 2012 Order, remanded the Veteran's case to the Board for action consistent with a Joint Motion dated that same month. Finally, in a decision of April 2013, the Board again denied entitlement to service connection for an acquired psychiatric disorder, including dementia. That decision was again appealed to the Court, which, in a July 2014 Memorandum Decision, vacated the Board's April 2013 decision, and, in so doing, remanded the Veteran's case to the Board for action consistent with that Memorandum Decision. The case is now, once more, before the Board for appellate review. The Veteran testified before a Veterans Law Judge (VLJ) via videoconference hearing in December 2008. A transcript is on file. A second hearing, before a different VLJ (the undersigned) was conducted in September 2015. A transcript of that hearing is on file. At the prehearing conference, and during the hearing, the Veteran's attorney and the undersigned discussed the option of a third judge attending the hearing as three judges would have to sign the final decision. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The attorney waived the presence of the third VLJ, with the understanding that the transcripts would be reviewed by the third judge that signed the ultimate decision. As the action taken below is not a final determination on the appeal, only one signature is needed on this document. For reasons which will become apparent, this appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development. VA will notify you if further action is required on your part. REMAND The Veteran in this case seeks entitlement to service connection for an acquired psychiatric disorder, to include dementia due to head trauma. In pertinent part, it is contended that, while in service, the Veteran sustained trauma to his head on at least two occasions, which trauma has resulted in his current mental problems. In that regard, a review of service treatment records discloses that the Veteran did, in fact, sustain trauma to his head on at least two occasions. Significantly, on one of those occasions, the Veteran sustained what appeared to be a concussion, precipitating a short period of hospitalization primarily for purposes of observation. During the Veteran's period of observation, there was no evidence of any abnormal neurological findings. The pertinent diagnosis noted at the time of discharge was neurosurgical observation following minor closed head injury, "recovered." At the time of a service separation examination in April 1970, the Veteran gave a history of "severe" headaches; a neurological evaluation conducted at that time was entirely within normal limits. Subsequently, the earliest clinical indication of the presence of potential psychiatric problems is revealed by a private medical record dated in March 1983, at which time the Veteran was heard to complain of intermittent problems with hyperventilation associated with chest discomfort and paresthesia. At that time, the Veteran was attempting to determine whether there were any causes other than anxiety for his problems. Noted at the time was that the Veteran had a varied educational background, consisting of liberal arts and physics, and that he had suffered a concussion in 1969 while in the United States Army. Further noted was that the Veteran had experienced a "difficult year or so" with financial returns from his career. Since the time of the Veteran's discharge from service, he has received varied psychiatric diagnoses, including generalized anxiety disorder, with chronic dementia due to head trauma; "probable" untreated bipolar disorder; a personality disorder; and cognitive disorder, not otherwise specified. However, following a VA examination in May 2006, the examiner was of the opinion that the Veteran exhibited no evidence of dementia. Rather, according to the examiner, the Veteran exhibited a psychiatric illness characterized by chronic anxiety and a failure to adapt to modern society "from a mental standpoint," rather than as the result of any injury to his brain. Significantly, notwithstanding the aforementioned, a VA psychologist has on more than one occasion offered his opinion that the Veteran suffers from a severe, generalized anxiety disorder with chronic dementia due to head trauma, the result of the aforementioned inservice concussions. The Board observes that, following a comprehensive review of the Veteran's medical records and an evaluation of the Veteran in June 2015, a private psychologist was of the opinion that the Veteran did, in fact, suffer from dementia which was a direct result of "injuries he sustained while in the military." However, that same psychologist noted that the Veteran had yet to undergo any diagnostic scans, such as magnetic resonance imaging (MRI), positron emission tomography (PET), or computerized axial tomography (CAT) to determine if there was any brain ischemia or size decrease in the Veteran's brain. Moreover, that psychologist was similarly of the opinion that it would be helpful were the Veteran to have undergone neuropsychological testing "by a competent individual." She offered similar testimony at the hearing before the undersigned. Based on the aforementioned, the Board is of the opinion that further development of the evidence would be appropriate prior to a final adjudication of the Veteran's claim for service connection. Under the circumstances, the case is REMANDED to the AOJ for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, that are outstanding, to include any after June 2015, the date of the aforementioned private psychological evaluation, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his attorney should be informed of any such problem. 2. The Veteran should then be afforded a VA neurologic examination, to be conducted by a neurologist and/or neuropsychologist who has not heretofore seen or examined him. That examination should include all necessary and appropriate studies that are indicated (including the aforementioned PET and CAT scans, as well as magnetic resonance imaging as appropriate), in addition to full neuropsychological testing. The Veteran is hereby notified that it his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the aforementioned neurologic examination, the examining neurologist and or neuropsychologist should offer an opinion as to whether the Veteran currently suffers from an acquired psychiatric disorder, to include dementia, and, if so, whether that disorder at least as likely as not had its origin during, or is in some way the result of, the Veteran's period of active military service, to include the aforementioned inservice head traumas. A complete rationale must be provided any opinion, offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examining neurologist must specify in his report that the Veteran's claims file, as well as his Virtual VA and Veterans Benefits Management System electronic records, have been reviewed. Reconciliation and/or discussion of other opinions on file should also be noted, especially if they vary as to the opinion reached as a result of the testing conducted herein. 3. The AOJ should then review the aforementioned report to ensure that it is in complete compliance with this REMAND, and that the examiner has documented his/her consideration of all records contained in Virtual VA and the Veterans Benefits Management System, as appropriate. If the report is deficient in any manner, the AOJ must implement corrective procedures. 4. The AOJ should then readjudicate the Veteran's claim for service connection for an acquired psychiatric disorder, to include dementia due to head trauma. Should the benefit sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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 2014). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).