Citation Nr: 1808192 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 08-37 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for memory loss and a speech impairment due to VA prescribed medication. REPRESENTATION Appellant represented by: Stacey-Rae Simcox, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to June 1986. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the Board in July 2010. The transcript of that hearing has been associated with the record. The case was originally remanded by the Board in July 2011, July 2012, and April 2013 for additional development. The Board denied the claim in December 2013. The Veteran appealed the December 2013 Board decision to the United States Court of Appeals for Veterans Claims (Court). The December 2013 decision was vacated and remanded to the Board by the Court in a November 2014 Order based on an October 2014 Joint Motion for Remand (JMR). Based on the Court decision, the case was remanded by the Board again in March 2015, September 2015, and February 2016. The Board again denied the claim in November 2016. The Veteran appealed the November 2016 Board decision to the Court, which vacated and remanded this case to the Board in an August 2017 JMR and Order. In order to comply with the Court's latest JMR and Order, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has asserted that he has a disability manifested by memory loss, a speech disorder, or other cognitive deficiencies. In the recent August 2017 JMR, the parties agreed that the March 2016 VA examination contains conflicting opinions as to whether the Veteran has a currently diagnosed mental disorder. Specifically, the parties found inconsistencies in the VA examiner's statements that the Veteran did not meet the criteria for any mental health diagnosis, but then noted diagnoses of conversion disorder and adjustment disorder, per the Veteran's history. The VA examiner found the Veteran did not have a current disability manifested by memory loss, a speech disorder, or cognitive impairments, but that the mild memory loss and impairment of short and long term symptoms were actively applied to his diagnoses. The parties also agreed the VA examiner failed to provide a reasoned medical explanation as to whether the Veteran's transient ischemic attacks (TIAs) are related to VA treatment because the examiner merely quoted the previous September 2013 examination. No additional rationale was provided. For the reasons discussed above, the March 2016 VA examination is inadequate to address the legal questions presently before the Board and a new examination is warranted. The Board notes that this claim was remanded in September 2015 and again in February 2016 for substantially similar reasons. As such, the RO should ensure compliance with the directives set forth below so that further delay is avoided. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address his claims of memory loss, speech disorder, and cognitive deficiencies. The examiner should determine if the Veteran has a diagnosis, whether psychiatric or physical, as the underlying cause of his complaints. If the Veteran does have a diagnosed disability or if a disability was appropriately diagnosed during the course of the appeal based on the available records, the VA examiner should address the following: a.) Whether the Veteran's diagnosed disability manifested by memory loss, a speech disorder, or other cognitive deficiencies is causally or etiologically attributed to VA's prescription of Gabapentin or other documented prescribed medication. The examiner should specifically address the Veteran's allergic reaction in April 2003. b.) If the examiner finds that the Veteran's current disability manifested by memory loss, a speech disorder, or other cognitive deficiencies is causally related to VA treatment, the examiner should then determine whether it is at least as likely as not (50 percent probability or more) that the additional disability was due to carelessness, negligence, lack of proper skill, or error in judgment. c.) If the examiner finds that the Veteran's current disability manifested by memory loss, a speech disorder, or other cognitive deficiencies is causally related to VA treatment, the examiner should determine whether the additional disability was a reasonably foreseeable result or complication of VA care or treatment. d.) Whether the Veteran's diagnosed TIAs are causally or etiologically attributed to VA's prescription of Gabapentin or other documented prescribed medication. The examiner should again specifically address the Veteran's allergic reaction in April 2003. e.) If the examiner finds that the Veteran's history of TIAs is causally related to VA treatment, the examiner should then determine whether it is at least as likely as not (50 percent probability or more) that the additional disability was due to carelessness, negligence, lack of proper skill, or error in judgment. f.) If the examiner finds that the Veteran's history of TIAs is causally related to VA treatment, the examiner should determine whether the additional disability was a reasonably foreseeable result or complication of VA care or treatment. 2. After completion of the above and any other development necessary, the RO should review the expanded record and determine if the Veteran is entitled to compensation under 38 U.S.C.A. § 1151. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2017).