Citation Nr: 21003281 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-24 530 DATE: January 21, 2021 REMANDED Entitlement to service connection for a memory loss disorder is remanded. Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1971 to May 1972 including service in the Republic of Vietnam from August 1971 to March 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2012. The Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in May 2015 for additional development. In an August 2017 decision, the Board denied these claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2018, CAVC granted a Joint Motion for Partial Remand (JMPR) vacating the Board’s decision and remanding these matters to the Board for additional development consistent with the JMPR. The JMPR notes that the rationale in support of the negative nexus opinions that the Board relied on in its August 2017 decision was inadequate. The JMPR found the VA examiners’ opinions regarding the etiology of the memory loss and the back disability were too curt to fully explain why the Veteran’s symptoms were not a delayed onset of an in-service traumatic brain injury (TBI) and back injuries. In October 2018, the Board remanded these matters to the AOJ with instructions for it to obtain new VA examinations that address the concerns in the JMPR. The Board also requested the AOJ obtain opinions on whether the Veteran’s memory loss has been caused or aggravated by his service-connected disabilities to include posttraumatic stress disorder (PTSD). The AOJ attempted to schedule the Veteran for the additional VA examinations but ultimately denied the Veteran’s claims without obtaining new opinions after the Veteran failed to attend the examinations. However, the Veteran’s representative indicated that the Veteran never received notice of the examinations and notes that the AOJ did not include documentation of notice to the Veteran in the file. See September 2020 Appellant’s Post-Remand Brief. A review of the claims file shows that the AOJ informed the Veteran that private contract examiners would send him notice of the examinations, but the record does not contain documentation of such notice. See January 2020 letters from VA to the Veteran. The Veteran’s representative requests that VA attempt to obtain the examinations once more and document the notice of the examinations in the file. The Veteran’s representative asserts that the Veteran is willing and able to attend the examinations and will attend after receiving adequate notice. On remand, the AOJ should make additional attempts to obtain adequate VA examinations addressing the concerns in the JMPR and the Board’s remand directives. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should schedule the Veteran for an examination to determine the nature and etiology of any memory loss disorder. The AOJ should document that it provided notice to the Veteran of the date, time, and place of the examination. If the Veteran is unable to attend the examination, the AOJ should obtain an opinion based on the evidence in the claims file. The AOJ should ensure the opinion addresses the following concerns: (a.) The VA memory loss examiner must opine whether the Veteran’s memory loss is at least as likely as not related to an in-service injury, event, or disease, including an in-service head injury in a tank during a Vietnam firefight as described by the Veteran, for which there is no record of in-service treatment. The examiner should adequately explain whether or not there is any memory loss that is at least as likely as not a delayed symptom of a TBI in service. (b.) The VA memory loss examiner should opine whether the Veteran’s memory loss at least as likely as not (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) The VA memory loss examiner should also address whether any current memory loss disorder is at least as likely as not proximately due to or aggravated (temporarily or permanently) by service-connected diseases or injuries, to include PTSD. (d.) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should schedule the Veteran for an examination to determine the nature and etiology of any current back disorder to include degenerative disc disease. The AOJ should document that it provided notice to the Veteran of the date, time, and place of the examination. If the Veteran is unable to attend the examination, the AOJ should obtain an opinion based on the evidence in the claims file. The AOJ should ensure the opinion addresses the following concerns: (a.) The VA back examiner must opine whether any current back disorder is at least as likely as not related to an in-service injury, event, or disease, including in-service strenuous activities described by the Veteran at his hearing. The examiner’s attention is directed to the fact that the Veteran testified that in service, he jumped out of helicopters and performed many rigorous tasks carrying heavy packs and equipment in the field, and he hurt his back over time. While the Veteran’s assertions are generally consistent with his service, there is no record of in-service treatment. (b.) The VA back examiner should opine whether it at least as likely as not (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) If the VA back examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.