Citation Nr: 21001988 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-11 266A DATE: January 12, 2021 REMANDED Service connection for memory loss, to include as due to a Gulf War undiagnosed illness. REASONS FOR REMAND The Veteran served on active duty from January 1976 to September 2009. The case is on appeal from a May 2011 rating decision. The case was last before the Board in September 2019. At that time, the Board granted a separate rating of 10 percent for impairment of the left thigh from September 10, 2013 until April 14, 2014; denied a rating higher than 10 percent for left hip degenerative arthritis prior to April 15, 2014; denied a rating higher than 50 percent for residuals of total left hip arthroplasty since June 1, 2015; and denied a rating higher than 10 percent for a residual scar, secondary to total left hip arthroplasty. The Board also remanded the issue of service connection for memory loss, to include as due to a Gulf War undiagnosed illness, for further development. Service connection for memory loss, to include as due to a Gulf War undiagnosed illness. The Veteran contends his memory loss was incurred in or caused by service, either due to a traumatic brain injury while working with demolitions, decompression and/or gas exposure from underwater diving, or exposure to environmental toxins while serving in the Persian Gulf. Service personnel records (SPRs) confirm the Veteran served in the Persian Gulf War, and he is afforded the presumptions of a Persian Gulf War veteran. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Additionally, the Veteran received the Combat Action Ribbon, affording the Veteran the presumption that he is a combat Veteran who is assumed to be credible when asserting he may have incurred a head injury in service when he was too close to explosives while detonating a bridge. Further, SPRs show the Veteran was a Navy diver, including 10 years as a rebreather apparatus diver. This issue was remanded in January 2018 to afford him a VA medical examination. However, while the Veteran declined to attend a January 2019 VA examination, he submitted a December 2018 private psychologic evaluation. Along with the submission, the Veteran’s agent representative wrote that the Veteran did not want to attend another VA examination, and that the psychologist should be contacted directly if clarification is needed. Additionally, the private psychologist not only diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood, finding impairment of short and long-term memory as one of the symptoms, but she stated “presenting for additional examinations will create unnecessary and undue stress, creating more distrust of the mental health profession and preclude the slim chance he will seek treatment.” Upon remand in September 2019, another VA examination was scheduled for the Veteran. He, again, declined the examination. Evidence of record provides a RO representative spoke with the Veteran directly in September 2020, but not to his agent representative. Additionally, given evidence of the Veteran’s memory loss and the written request from he and his representative to contact the private psychologist directly, the Veteran should be given another opportunity to attend a VA examination and/or receive an addendum medical opinion and submit a clarification letter from his private psychologist addressing the etiology of his memory loss. The Board again notes, however, that Dr. A.M., the private examiner, is not a neurologist, and because the Veteran asserts he has permanent cognitive impairment related to environmental hazards in service, he should be afforded and attend a VA examination to be evaluated appropriately. Further, the Board finds there was not substantial compliance with its September 2019 remand directives where the Board directed the RO to obtain an addendum medical opinion in lieu of an in-person examination if the Veteran declines to attend the VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, remand is warranted. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since December 2019. 2. Contact the Veteran and his representative and request that he provide authorization for VA to obtain clarification from private psychologist Dr. A.M., who provided the December 2018 psychiatric evaluation regarding the etiology of his memory loss symptoms. They should be informed that they may also contact the psychologist directly, who should be requested to discuss whether the Veteran’s memory loss is entirely attributable to his service-connected adjustment disorder with mixed anxiety and depressed mood, or whether he has a separate neurological disorder, such as a traumatic brain injury or other type of cognitive impairment. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) with a VA neurologist to determine the nature and etiology of his memory loss symptoms. If a neurologist is not available, the examination should be scheduled with a similarly qualified expert physician. If the Veteran declines to attend the VA examination, obtain an addendum medical opinion in lieu of an in-person examination based on are view of the complete medical record. After reviewing the record, the examiner must provide an opinion on the following: (a.) Is the Veteran’s memory loss attributable to a known clinical diagnosis? If yes, is this disorder at least as likely as not related to or had its onset during service, including due to either a traumatic brain injury, described by the Veteran as exposure to demolitions, or due to the Veteran’s many years of working as an underwater diver, which included exposure to various mixtures of diving gases, including oxygen, nitrogen, and helium (Trimix, Nitrox, Heliox) and/or the effects of decompression? (b.) If the Veteran’s symptoms are not attributable to a known diagnosis, could his symptoms represent an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to Persian Gulf environmental hazards? (c.) Does the Veteran have memory loss due to multiple different etiologies? Even if the Veteran does have memory loss symptoms attributable to his psychiatric disorder, does he have additional or superimposed cognitive symptoms which could have a separate etiology that is related to service or that is due to a Persian Gulf undiagnosed illness or medically unexplained chronic multi-symptom illness? A complete rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.