Citation Nr: 1814901 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 06-34 526A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a chronic disability manifested by memory loss, including as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from July 1999 to July 2005. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied this claim of entitlement to service connection for memory loss. In October 2011, in support of this claim, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. This case has a complex procedural history, including multiple prior actions by both the Board and the higher United States Court of Appeals for Veterans Claims (Veterans Court/CAVC), which was discussed in detail in the Board's most recent adjudication of this claim, in September 2016, and is outlined herein. Pertinently, in its March 2013 decision, the Board denied this claim. The Veteran appealed that decision to the Court. In December 2013, the parties submitted a Joint Motion for Remand (Joint Motion/JMR) agreeing that the Board had erred by concluding that the claim could not be granted absent a medical opinion linking the Veteran's memory loss to his service or to an undiagnosed illness. See 38 C.F.R. § 3.317; Gutierrez v. Principi, 19 Vet. App. 1, 7-9 (2004) (explaining that objective medical evidence is not required for an award of service connection under section 1117). By Order dated in December 2013, the Court granted the Joint Motion and remanded this claim for further appellate consideration in accordance with its instructions. In July 2014, and again in November 2015, the Board remanded this claim so the Agency of Original Jurisdiction (AOJ) could further assist the Veteran in its development, specifically, to have him undergo a VA compensation examination for a medical opinion. Upon completion of the remaining development requested by the Board, including readjudication of the claim and its continued denial, as reflected in a January 2016 Supplemental Statement of the Case (SSOC), the AOJ returned the claim to the Board for further appellate review. Initially, in its September 2016 decision, the Board determined there had been compliance, certainly the acceptable substantial compliance, with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Ultimately, however, the Board again denied the Veteran's claim, including as a qualifying chronic disability under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. The Veteran again appealed the Board's decision to the Court. The parties submitted a Joint Motion in September 2017, agreeing the Board had committed two errors. First, the Board had failed to provide an adequate statement of reasons or bases for its finding that service connection under 38 C.F.R. § 3.317 is not warranted because the February 2006 private examiner had attributed the Veteran's memory problems to attention deficit hyperactivity disorder (ADHD) and amnestic disorder. Second, the Board also had erred in denying direct service connection because the December 2015 VA medical opinion was based on inaccurate factual premises that there was no noted impairment in memory from 2001 to 2005 and that the Veteran's service treatment records (STRs) "are negative for any psychiatric complaints or memory/cognitive problems." See April 2005 Report of Medical Assessment (completed three months before discharge and documents the Veteran's complaints of memory degradation). By Order dated in September 2017, the Court granted the Joint Motion and remanded the claim again for still further appellate consideration. To comply with the Court's Order, the Board in turn is again REMANDING this claim to the Agency of Original Jurisdiction (AOJ). REMAND To establish presumptive service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, the evidence must show that the claimant is "a Persian Gulf veteran with a qualifying chronic disability that became manifest" "during service on active duty . . . in the Southwest Asia theater of operations." 38 U.S.C. § 1117(a). A "qualifying chronic disability" is a "chronic disability" that may result from "[a]n undiagnosed illness." 38 U.S.C. § 1117(a)(2)(A). The corresponding regulation further clarifies that a qualifying chronic disability is one that "by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis." 38 C.F.R. § 3.317(a)(1)(ii); see also Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has found that "[t]he statue and regulation require . . . that the veteran has been evaluated and no diagnosis could be made concerning the cause of the qualifying chronic disability." Joyner v. McDonald, 766 F.3d 1393 (Fed. Cir. 2014). In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). This claimant is a Persian Gulf War (PGW) Veteran according to 38 C.F.R. § 3.317. Neurological or neuropsychological signs or symptoms, such as memory loss, are listed as "signs or symptoms which may be manifestations of undiagnosed illness" under 38 C.F.R. § 3.317(b). However, his reported memory loss has been attributed to a known clinical diagnosis on two occasions. See Dr. J.L.'s Private Examination Report dated Sept. 12, 2005 (finding the Veteran's claimed memory loss to be attributable to a diagnosis of generalized anxiety disorder); and, Dr. J.B.'s Private Examination Report dated Feb. 9, 2006 (finding the Veteran met the diagnostic criteria for attention deficit hyperactivity disorder (ADHD) and amnestic disorder, and further indicating his "poor memory stems from difficulties in maintaining attention and concentration"). As this service-connection claim originally was filed in July 2005, those September 2005 and February 2006 diagnoses are valid indications of his current disability. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). That notwithstanding, further development is required before the Board can make a determination with respect to the direct service connection aspect of this claim. Specifically, although the evidence of record contains the April 2005 Report of Medical Assessment that was completed three months prior to the Veteran's separation from service and documents his complaints of memory degradation, an etiology opinion addressing the relationship, if any, between his documented in-service complaints of memory loss and his diagnosed generalized anxiety disorder, ADHD, and amnestic disorder, has not been obtained. Moreover, it is unclear whether his "problems with attention and concentration which has manifested in [his diagnosis of ADHD]" pre-existed his service. See, e.g. Dr. J.B.'s Private Examination Report dated Feb. 9, 2006 at 6 (documenting the Veteran's report that "[a]lthough he does not recall if he was ever diagnosed with [ADHD], he stated that these symptoms were clearly present when he was a child."). As his enlistment examination report does not document any complaints or conditions relevant to this claim at issue in this appeal, the Board further finds remand necessary to obtain a medical opinion concerning whether he had a disability manifested by "problems with attention and concentration", to include ADHD, which clearly and unmistakably existed prior to him entering service, and if so, whether it additionally clearly and unmistakably was not aggravated during or by his service. Additionally, while on remand, the AOJ should obtain the records of all relevant treatment the Veteran has received (the records of which have not already been obtained, so they, too, may be considered). Accordingly, this claim is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to this claim. Also, ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After receiving all additional treatment records, request a medical opinion from a suitably qualified examiner regarding the etiology of the Veteran's currently diagnosed chronic disability manifested by memory loss, including his current diagnoses of ADHD, amnestic disorder, and generalized anxiety disorder. If the examiner finds that further examination of the Veteran is needed, then schedule this additional mental status evaluation. The claims file, including a complete copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. Following review of the file, including the prior VA and private examination reports, as well as the Veteran's statements and hearing testimony, the examiner must address the following: (a) Does the evidence of record clearly and unmistakably show the Veteran had a disability manifested by "problems with attention and concentration", to include ADHD, prior to him beginning his active duty service? In making this determination, the examiner's attention is directed to the Veteran's military entrance examination and medical history, including Dr. J.B.'s Private Examination Report dated Feb. 9, 2006 (documenting the Veteran's report that "[a]lthough he does not recall if he was ever diagnosed with [ADHD], he stated that these symptoms were clearly present when he was a child."). (b) If the answer to subpart (a) is "yes" to clear and unmistakable pre-existence, then does the evidence also clearly and unmistakably show the pre-existing condition was not aggravated (i.e., permanently worsened) during or by the Veteran's service, meaning exacerbated beyond the condition's natural progression? Aggravation is defined for legal purposes as a worsening of the underlying condition versus a mere temporary or intermittent flare-up of symptoms. The examiner is reminded that the evidentiary standard of clear and unmistakable evidence means the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012) (citations omitted). (c) If the answer to subpart (a) conversely is "no", then is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's currently diagnosed chronic disability manifested by memory loss, including his current diagnoses of generalized anxiety disorder, ADHD, and amnestic disorder, is etiologically related to, or had its onset during, his active military service? (d) Regardless of the conclusions reached in response to the above questions, the examiner is asked to comment on the likelihood (very likely, as likely as not, or unlikely) that anthrax vaccinations administered during the Veteran's active military service caused symptoms of memory loss. Specifically, the examiner is asked to reconcile the findings in the December 2015 VA Examination Report addressing this issue based upon the inaccurate factual premise that the Veteran's service treatment records (STRs) "are negative for any psychiatric complaints or memory/cognitive problems." To the contrary, the April 2005 Report of Medical Assessment that was completed three months prior to his separation from service documents his complaints of memory degradation. So the examiner must remain mindful of that report. To this end, when responding, the examiner must take into account the lay statements of record regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner must provide a reason for doing so. Also, the mere absence of evidence of contemporaneous treatment in the service treatment records (STRs) cannot, alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of this claimed disability, provided there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstances presented. All answers to the questions asked must be supported explanatory rationale, including, if necessary, citing to relevant evidence (clinical findings, etc.), supporting factual data, prior medical opinions, and/or medical authority. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. 3. Ensure this requested medical opinion is responsive to the questions specifically asked. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2. 4. After completing this and any other development deemed necessary, readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).