Citation Nr: 21062253 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 12-15 979 DATE: October 6, 2021 REMANDED Entitlement to service connection for a cognitive disability, to include as secondary to service-connected disabilities, including posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue was thrice before the Board, in November 2014, December 2017, and March 2020. In December 2017, the Board denied the issue based on a finding that the Veteran did not have a mild cognitive impairment, and he appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court issued a Memorandum Decision, setting aside the Board's December 2017 decision, and remanded the issue consistent with the Memorandum Decision. In March 2020, the Board recharacterized the issue as reflected above. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also remanded the issue and mandated that the RO obtain outstanding private and VA treatment records and associate them with the claims file. Additionally, the RO was to provide the Veteran with a VA examination to determine whether any cognitive and psychiatric disabilities, other than PTSD, experienced by the Veteran since circa February 2012 (including, but not limited to, neurocognitive disorder and amnestic mild cognitive impairment) at least as likely as not (1) began during service; (2) is related to an in-service injury, event, or disease, including his conceded head injury in service; (3) is caused by service-connected PTSD and/or TBI; or (4) is aggravated by service-connected PTSD and/or TBI. In March 2020, the RO requested that the Veteran identify the location and name of any VA or private medical facility where he received treatment for any cognitive disability, including the dates of any such treatment. The RO obtained and associated the said records with the claims file. In this regard, there has been substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the medical examination, the Veteran was afforded VA Behavioral Health Medical Opinion of April 2020, Review PTSD examination of September 2020, Mini-mental State Examination (MMSE) of October 2020, Medical Opinions of October 2020, and November 2020, and addendum medical opinions of April and June 2021. While the Board finds the requested examinations adequate, the accompanying opinions, however, are incomplete. Thus, Board finds that the VA medical opinions are noncompliant with the remand directives, and therefore, there has not been substantial compliance in this regard. Id. Entitlement to service connection for a cognitive disability, to include as secondary to service-connected disabilities, including PTSD and TBI, is remanded. The Veteran contends that during the period on appeal, he had a mild cognitive disorder, a separate disorder from his service-connected PTSD. Furthermore, the said disability is the result of a head injury that he sustained in service. In the alternative, the cognitive disorder is caused and/or aggravated by his service connected TBI or PTSD. The Veteran's service treatment records (STRs) dated in March 1967 noted that he was exposed to a close-range mortar blast that resulted in LOC, AOC, and concussive headaches. Post-service treatment records dated in November 2011 note a MRI indicating mild cognitive impairment. The clinician noted his impression of mild to moderate brain volume loss and mild ventriculomegaly, presumably central volume loss versus communicating hydrocephalus. In January 2012, the Veteran was diagnosed by his private clinician with a mild cognitive disorder. The Veteran was afforded VA Behavioral Health Medical Opinion of April 2020, Review PTSD examination of September 2020, MMSE of October 2020, Medical Opinion DBQs of October 2020, and November 2020, and addendum medical opinions of April and June 2021. The Board, as explained above, the opinions are incomplete for they focused on the conclusions of findings of the inadequate C & P examinations of record, all of which found no current cognitive disorder. The Board notes that at the time the Veteran filed his claim, he had a diagnosis of a mild cognitive disorder. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, the Veteran had a current disability at the time of him application for service connection. Furthermore, no examiner noted whether the mild cognitive disorder conforms the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) diagnosis of a separate disorder or if the symptomologies therefrom are distinct and separate from those of his service-connected PTSD. 38 C.F.R. § 4.125 (a), 4.130. As there is yet no current adequate medical opinion of record, a supplemental opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran's claims file to a qualified clinician to provide a supplemental opinion addressing the nature and etiology of the cognitive disorder, whether it may resolved or not, during the appeal period. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. The clinician is asked to opine as to the following: i. Whether the Veteran has a cognitive disorder that conforms to a DSM-5 diagnosis. ii. Whether the symptoms from the Veteran's cognitive disorder are distinct and separate from those of his service-connected PTSD. iii. Whether the Veteran's cognitive disorder is at least as likely as not (50 percent or greater probability) had its onset in service or related to any incident therein, including the March 1967 mortar blast. iv. Whether the Veteran's cognitive disorder is at least as likely as not (50 percent or greater probability) caused by his service-connected PTSD and/or TBI. v. Whether the Veteran's cognitive disorder is at least as likely as not (50 percent or greater probability) aggravated by his service-connected PTSD and/or TBI. The clinician is reminded that for a secondary service connection claim, a VA medical opinion should not combine causation and aggravation; separate findings and rationales should be provided for each one. Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018). The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the clinician must state this and provide a rationale for such a conclusion. 2. Ensure compliance with these remand directive pursuant to Stegall, 11 Vet. App. 268, 271 (1998). 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.