Citation Nr: 1609785 Decision Date: 03/10/16 Archive Date: 03/22/16 DOCKET NO. 11-28 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a memory loss disability. ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1997 to January 2001 and from May 2011 to May 2012. His DD Form 214 does not reflect service in Southwest Asia. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In July 2015, the Board remanded the current issue for further evidentiary development. Also remanded by the Board was the issue of entitlement to service connection for a bone pain disability. In November 2015, the RO granted service connection for osteopoikilosis of the right shoulder, left shoulder, and right knee. The issue of bone pain disability is considered granted in full, and is no longer in appellate status. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a February 2010 statement, the Veteran asserted that his major depressive disorder, to include insomnia and memory loss began during service. In August 2010, he clarified that his memory loss symptoms include being easily confused, trouble remembering, and slowness in thinking and reading. Decreased concentration and short term memory was noted during VA treatment in April 2008. A January 2010 VA examiner found that the Veteran's remote and immediate memory was mildly impaired, and the March 2015 VA examiner noted the Veteran's forgetfulness, attributing it to his depressive disorder. Neither examiner rendered an opinion as to whether the Veteran has a memory loss disability distinct from his diagnosed depressive disorder. In light of the Veteran's competent reports of memory loss occurring during service and the findings of memory loss by VA clinicians, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records dating from April 2012 to the present. If the requested records are unavailable, the claims file should be annotated as such and the Veteran notified of such. 2. After associating all available records requested above with the claims file, schedule the Veteran for a VA examination to address his claim for service connection for memory loss. All indicated tests should be conducted. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Does the Veteran have a diagnosed memory loss disability distinct from his diagnosed depressive disorder? (b) If the Veteran has a memory loss disability distinct from his diagnosed depressive disorder, is it at least as likely as not (50 percent probability or greater) that the disorder is related to service? Please explain why or why not. (c) If a diagnosed memory loss disability is not related to service, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder is caused by a service-connected disability, to include depression? Please explain why or why not. (d) If not, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the memory loss disability was permanently worsened beyond normal progression (aggravated) by a service-connected disability, to include depression. Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide thorough reasons as to why the opinion cannot be made without resorting to speculation. 3. Then, re-adjudicate the claim. If the benefit sought is not granted, issue a supplemental statement of the case (SSOC) and return the case to the Board for further review. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ S. HENEKS 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).