Citation Nr: 1622459 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 05-21 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for memory loss as due to a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from September 1980 to April 1987 and from January 1991 to June 1991, including service in the Southwest Asia Theater of operations in support of Operations Desert Shield/Storm. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2010, the Veteran testified at a personal hearing before the undersigned. In a May 2014 decision, the Board in part denied the claim for service connection for memory loss, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for partial remand, in a December 2015 Order, the Court remanded the issue of entitlement to service connection for memory loss as due to a qualifying chronic disability under 38 C.F.R. § 3.317 for readjudication in accordance with the joint motion. The parties to the joint motion agreed that the Board decision should not be disturbed to the extent that it denied this claim on any other basis, to include a direct basis. The Board notes that in January 2015 the Veteran submitted a VA Form 9 perfecting an appeal as to the issues of entitlement to service connection for prostate cancer and for a heart disorder due to exposure to mercury and sulfur. He also requested a videoconference hearing. These issues have not been certified for appellate review and appear to be pending hearing scheduling. No further action is required at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the joint motion, the Board finds that further development is needed on the issue of entitlement to service connection for memory loss as due to a qualifying chronic disability under 38 C.F.R. § 3.317. The Veteran asserts that he has a disability manifested by memory loss as a result of his service in Southwest Asia. He first attributed his memory loss to his service in Southwest Asia in a September 1996 statement. More recently, at a February 2010 hearing, he stated that he had short-term memory loss and some long-term memory loss, and noted that he tends to forget names and events that he should remember. In an August 2010 statement, he indicated that he has had memory loss since his service in Southwest Asia. In March 2004 and February 2009 letters, the Veteran's neighbor indicated that she had observed the Veteran's problems with memory loss. In a July 2010 letter, she indicated that she had noticed the Veteran's memory loss over the past 10 years. Service treatment records contain no complaints or diagnoses related to memory loss or cognitive functioning. Post-service medical records reflect complaints of memory loss but do not definitively attribute it to a psychiatric disorder or service in Southwest Asia. A January 1997 VA examination report reflects complaints of poor memory since the Gulf War and a diagnosis of poor memory. A May 1997 VA treatment record notes that the Veteran's memory was poor for recent events such as whether he has eaten or taken his medication. In September 2002, the Veteran was in a motor vehicle accident during which he lost consciousness. A January 2003 VA treatment note reflects a change in short-term memory since the motor vehicle accident, always needing written instructions. A January 2003 private psychological evaluation report reflects that the Veteran's short-term memory appeared within functional limits as he was able to recall 8 of 21 words immediately after presentation and 7 of 21 words five minutes later. The examiner provided a diagnosis of cognitive disorder and noted that it was unclear whether the Veteran's subjective reports of memory problems are reflective of an old stroke or the neurological symptoms frequently observed in Gulf War Veterans. A January 2003 mental residual functional capacity assessment reflects that the Veteran can understand and recall simple instructions but not detailed instructions. A February 2004 VA treatment note reflects problems with short-term memory loss. The examiner noted financial distress, but provided no diagnoses or comments as to the short-term memory loss. A March 2006 private medical opinion reflects that the Veteran's ability to maintain attention, concentration, or pace for prolonged periods of time was mildly impaired. An August 2010 VA psychiatric examination report specifically found that the Veteran's memory (remote, recent, and immediate) was normal. As the record was unclear whether the Veteran's memory loss was a manifestation of a qualifying chronic disability, he was afforded a VA Gulf War examination in July 2012. At that time, the Veteran reported that his memory loss began in 2008, starting out as a minor deficit and gradually worsening. He stated that he commonly forgets names of people he knows and forgets where he places personal items. The examiner found that there was insufficient evidence in the claims folder documenting complaints of, a diagnosis of, or treatment for a memory loss condition while in military service and therefore it was less likely than not that this condition was as a result of or incurred during military service. The examiner also stated that this condition was unlikely to be an undiagnosed illness or part of an unexplained chronic multisymptomatic illness associated with Gulf War Syndrome. The examiner noted that VA medical records showed that the Veteran's memory loss began after a motor vehicle accident in 2002. The examiner added that there was no documentation linking the memory loss to any psychiatric condition. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2015). A retrospective medical opinion may be necessary and helpful in cases when the evidence is insufficient for an adequate determination. Chotta v. Peake, 22 Vet. App.80 (2008); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Here, the Board finds the Veteran should be afforded an additional VA examination. Prior to the examination, up-to-date VA treatment records should be obtained. While the examiner correctly noted that the record shows a change in the Veteran's memory loss after a September 2002 motor vehicle accident, the examiner failed to acknowledge the Veteran's entire history, which shows complaints of memory loss since as early as 1996. The examiner also did not provide a complete rationale for the opinion that the Veteran's memory loss was not an undiagnosed illness or part of an unexplained chronic multisymptomatic illness associated with Gulf War Syndrome. Thus, the Veteran should be afforded another examination to obtain an opinion based on a complete review of the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA treatment notes since July 2014 pertinent to the issue on appeal. 2. Schedule the Veteran for an appropriate VA examination for an opinion as to whether it is at least as likely as not (probability of 50 percent or more) that he has (presently or for any identifiable period of time during this appeal) a chronic disability manifested by memory loss as a result of an undiagnosed illness associated with service in Southwest Asia. The examiner should be requested to acknowledge and address the pertinent lay and medical evidence of record. All examination findings, with the complete rationale for the opinions expressed, should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be readjudicated with consideration of all evidence of record. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, afforded the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review. 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). _________________________________________________ T. L. DOUGLAS Acting 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).