Citation Nr: 21012146 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-21 616 DATE: March 3, 2021 REMANDED Entitlement to service connection for an acquired mental disorder, to include depression and anxiety (claimed as anxiety and concentration problems) is remanded. Entitlement to service connection for memory problems is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1977, and from January 1982 to January 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. In January 2018, the Board denied the claims of service connection for an acquired mental disorder, service connection for memory problems, and service connection for headaches. The Veteran appealed the January 2018 denial to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court issued an order granting a Joint Motion for Partial Remand (JMPR) and vacated the January 2018 decision. The JMPR indicated that the issue of service connection for headaches not to be distributed and it was dismissed. The remaining issues of service connection for acquired mental disorder and memory problems were then remanded in January 2020 to comply with the JMPR directives. Additionally, a December 10, 2020 letter from the Board indicated that good cause had been presented for a 60-day extension of time. That time has now elapsed and additional evidence or agreement was not added to the file. As such, the Board will proceed to adjudicate this appeal on the merits. 1. Service connection for an acquired mental disorder, to include depression and anxiety (claimed as anxiety and concentration problems) is remanded. 2. Service connection for memory problems is remanded. Unfortunately, another remand is necessary to obtain a VA opinion regarding the Veteran’s claim for memory problems. The Veteran contends that he has memory and concentration problems that are related to his acquired mental disorder. By way of background, the Veteran reported having memory problems at the June 2013 VA examination. The examiner did not, however, note it as a symptom of his dysthymic disorder. VA Medical records show the Veteran underwent neuropsychological assessments for his reported memory issues in March 2012, August 2013, and January 2016. In March 2012, he was noted to have mildly impaired visual recall, mildly impaired processing speed, and elevated depressive and anxiety symptoms. While he had mild cognitive impairments, the level did not meet criteria for vascular or other dementias. The overall conclusion was that the Veteran had at least some contribution from vascular issues to his ongoing cognitive dysfunction, and vascular problems could not be ruled out. The August 2013 evaluation showed that overall performance was relatively unchanged. While the Veteran did report some ongoing psychiatric distress, his patter of neuropsychological deficits were such that psychiatric disturbance was considered unlikely to be the only source of his cognitive dysfunction, and again he was found to have mild cognitive impairment, with vascular factors as the most likely etiology. In January 2016, his cognitive abilities were significantly improved. His visual scanning, multitasking, and immediate memory were better that in previous assessments. His processing speed remained an area of weakness, but his delayed memory remained solid. He did not at any time meet the criteria for dementia. The Veteran’s deficits did not suggest a neurodegenerative disorder or major cognitive disorder. As previously suggested, the most likely contributor to his speed issues were likely to be vascular and he currently did not meet criteria for any major neurocognitive disturbance. In a December 2016 VA opinion it was noted that the June 2013 VA examiner did not report that the Veteran experienced memory loss, but no opinion was provided. A May 2017 addendum opinion noted that there was no indication of concentration, memory, or focus concerns until 2014; and, that a 2016 neuropsychological assessment entered a diagnosis of cognitive disorder. The March 2020 VA clinician opined that since the most recent providers appeared to note no memory issues it was at least as likely as not that the Veteran did not have any current memory loss issues. It was noted that his medical history contained varying diagnoses including dysthymic disorder per VA examination in 2013, ADHD, and PTSD from Dr. N.I. The clinician specified that it did not appear that the Veteran endorsed symptoms related to memory loss. Additionally, Dr. B.E.’s mental health notes from March and May 2018 documented that his recent and remote memory were intact. Dr. N.I. in February 2017 and numerous other notes also documented recent and remote memory. The Board finds the March 2020 VA examination to be inadequate. Specifically, the clinician does not appear to have reviewed all the evidence of record throughout the appeal period. In contrast to the clinician indicating that the Veteran did not endorse symptoms related to memory loss, the record shows that the he has been consistent throughout the appeal period in advancing his contention that he has memory loss, including at medical appointments and his 2016 Board hearing. Additionally, in the evidence comments, the clinician wrote that the oldest mental health note documenting that state of the Veteran’s memory was in February 2017. It appears that while the clinician reviewed the 2013 VA examination, but not earlier medical records including the above noted neuropsychological assessments. As such, a new addendum/examination is warranted to determine whether the Veteran has/had a disorder related to memory problems during the period on appeal (July 2009 onward) that is related to his acquired mental disorder. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that a claimant satisfies the current disability requirement when the claimant has a disability at the time a claim for VA benefits were filed or has a disability during the pendency of that claim); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (considering the application of McClain on a recent diagnosis predating the filing of a claim). Based on the above, the Board finds that another opinion is needed to adequately address the nature and etiology of the Veteran’s memory problems that consider his contentions as well as the complete medical record. These matters are REMANDED for the following action: Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of any memory problems. A new examination is not required unless deemed necessary to provide the requested opinions. The examiner must review the claims file, including this Remand. The examiner is asked to provide a response to the following: a) Provide an opinion whether the Veteran has a disorder related to memory loss. b) If it is not a distinct disorder, whether it is a symptom of mental health disorder. c) If it is a memory loss related disorder, is it related to or part of a diagnosed mental disorder? d) If not related to a mental disorder, did it have its onset in active service, or is otherwise causally connected to his active service? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.