Citation Nr: 18143962 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 08-21 073 DATE: October 23, 2018 REMANDED The issue of entitlement to service connection for chronic memory loss, to include as due to an undiagnosed illness, is remanded. The issue of entitlement to service connection for chronic disability manifested by shortness of breath, to include as due to an undiagnosed illness, is remanded. The issue of entitlement to service connection for chronic disability manifested by leg pain, to include as due to an undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to January 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In his June 2008 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. The hearing was scheduled for May 2011, but the Veteran did not attend. He has not offered good cause for his failure to appear at the hearing or request that such be rescheduled. Therefore, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704 (d) (2017). This case was previously remanded by the Board in July 2011. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In April 2017, the Board denied, in part, entitlement to service connection for memory loss, entitlement to service connection for shortness of breath, and entitlement to service connection for leg pain. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a May 2018 Joint Motion for Remand (JMR), vacated the April 2017 Board decision relating to the above issues and remanded the issues to the Board for readjudication. 1. Entitlement to Service Connection for Memory Loss, Shortness of Breath and Leg Pain, to Include as Due to an Undiagnosed Illness The Veteran contends that he has memory loss, shortness of breath and leg pain, and that each is directly related to his active service, to include as due to an undiagnosed illness. In the May 2018 JMR, the parties noted that, in the April 2017 Board decision denying the Veteran’s claims, the Board failed to explain why the Veteran’s reported symptoms were insufficient to support his claims, particularly since objective medical evidence is not required to establish service connection for an undiagnosed illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The Veteran was provided a VA Gulf War examination in April 2006. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds the April 2006 Gulf War examination is inadequate for decision purposes. As to the Veteran’s claim for entitlement to service connection for leg pain, the April 2006 VA examiner was directed to address the Veteran’s leg pain; however, the April 2006 VA examiner did not address the Veteran’s leg pain as directed by the RO. The Board notes that the Veteran’s service treatment records reflect that he received treatment for contusions of the left foot, left hip, and right leg, as well as for a left ankle sprain. Upon remand, the VA examiner must address whether the Veteran has a chronic disability manifested by leg pain that had its onset during his service or is otherwise etiologically related to his service. The VA examiner must also provide an opinion as to whether it is at least as likely as not that the Veteran has an undiagnosed illness manifested by leg pain. As to the Veteran’s claim for entitlement to service connection for shortness of breath, the April 2006 VA examiner noted the Veteran’s complaints of shortness of breath in the service treatment records and since his separation from active military service. However, the VA examiner did not provide an opinion as to whether the Veteran’s shortness of breath had its onset during his service or is otherwise etiologically related to his service or whether his shortness of breath is due to an undiagnosed illness. As such, remand is necessary to provide a VA examination and opinion. As to the Veteran’s claim for entitlement to service connection for memory loss, the VA examiner provided an assessment of decreased memory. However, the VA examiner did not provide an opinion as to whether the Veteran’s decreased memory had its onset during his service or is otherwise etiologically related to his service or whether his decreased memory is due to an undiagnosed illness. As such, remand is necessary to provide a VA examination. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from March 2017. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records relevant to the matters being remanded, to include from March 2017. 2. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of any leg disability, to include as manifested by pain. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for each chronic leg disability demonstrated since service, found on current examination, or in the record. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has an undiagnosed illness manifested by leg pain. (c.) For each chronic leg disability, to include as manifested by pain, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to the Veteran’s service. Rationale should be provided for the opinions proffered. 3. After the first remand directive, schedule the Veteran for a VA examination to determine the nature and etiology of any shortness of breath disability. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for each chronic disability manifested by shortness of breath demonstrated since service, found on current examination, or in the record. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has an undiagnosed illness manifested by shortness of breath. (c.) For each shortness of breath disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to the Veteran’s service. Rationale should be provided for the opinions proffered. 4. After the first remand directive, schedule the Veteran for a VA examination to determine the nature and etiology of any chronic disability manifested by memory loss. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for each chronic disability manifested by memory loss demonstrated since service, found on current examination, or in the record. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has an undiagnosed illness manifested by memory loss. (c.) For each memory loss disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to the Veteran’s service. Rationale should be provided for the opinions proffered. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for a chronic disability manifested by leg pain, to include as due to an undiagnosed illnesss, may be granted; whether a chronic disability manifested by memory loss, to include as due to an undiagnosed illness, may be granted; and/or whether a chronic disability manifested by shortness of breath, to include as due to an undiagnosed illness, may be granted. If any benefit sought remains denied, furnish the Veteran and   his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel