Citation Nr: 21013225 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-27 828 DATE: March 9, 2021 REMANDED Entitlement to service connection for multiple cerebral cysts, to include an associated seizure disorder, is remanded. Entitlement to service connection for a neurocognitive disorder, to include a psychiatric disorder and memory loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1986 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA). In a May 2019 decision, the Board remanded the issue(s) on appeal for further development. Specifically, the Board found that the August 2012 and May 2013 VA medical opinions of record did not adequately address the Veteran’s contention that his seizures, mental disorders, and cognitive decline were related to his military service. These opinions were found inadequate because the examiner stated only that the Veteran’s cysts were “congenital,” without rationale or discussion as to whether the cysts were congenital defects or congenital diseases, and the Board requested a new medical opinion. After a review of the evidence of record, the Board has recharacterized the issue on appeal in order to clarify the nature of the benefit sought and ensure complete consideration of the Veteran’s claims. To achieve these ends, the Board has bifurcated and recharacterized the Veteran’s initial appeal to establish service connection for multiple cerebral cysts of the brain, claimed as multiple brain cysts associated with seizures, acquired psychiatric conditions, memory problems, mental condition, and depression as two distinct issues (reflected above), as each issue represents a unique medical disability. Here, the Board observes that the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptom, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for multiple cerebral cysts to include an associated seizure disorder is remanded. In January 2020, the Veteran attended an additional VA examination. The Board finds the VA examiner’s opinion inadequate because the examiner did not provide a clear analysis as to whether the Veteran’s cerebral cysts are a congenital defect or congenital disease. Specifically, following the examination, the examiner found that the Veteran’s cerebral cysts were a genetic defect. However, the examiner then addressed the issues of congenital disease and congenital defect by providing medical opinions that discussed the theories of service aggravation and as to whether the Veteran the Veteran had a superimposed disease or injury during service that results in additional disability. The Board further finds that the examiner’s opinion is inadequate because the examiner did not define a congenital defect or genetic disease as outlined by the VA’s Office of General Counsel which has stated that when viewed in the context of 38 C.F.R. § 3.303 (c), the term “defects” would be definable “as structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90. In contrast, a “disease” is referred to as a condition considered capable of improving or deteriorating. Id. In this case, the examiner stated that the Veteran's “cerebral cysts appear to constitute a congenital defect that is likely static, but the possibility of change in size cannot be entirely excluded.” Thus, for the above stated reasons, a remand is required to obtain a more complete medical opinion as to the nature and etiology of the Veteran’s disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). 2. Entitlement to service connection for a neurocognitive disorder to include a psychiatric disorder and memory loss is remanded. As to the Veteran’s claim for a neurocognitive disorder, the Board notes that the Veteran has not been afforded a VA examination for this disability. According to McLendon, an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in- service event, injury, or disease,” or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the record reflects that the Veteran and his family have reported that the Veteran experiences memory problems and has exhibited cognitive decline. In addition, the record reflects that the Veteran has been diagnosed with a psychiatric disorder. Moreover, the record reflects that the Veteran has served in the Persian Gulf and he has reported that he has experienced these symptoms since he left active duty. Lastly, the Board notes that the there is an indication that the current disability may be related to his military service, and there is insufficient evidence to decide this case. As the Board finds that the criteria set forth in McLendon has been met to this claim, a VA examination should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature an etiology of his cerebral cysts. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. After a review of the claims file, the examiner should provide answers to the following questions: (A). Is it at least as likely as not (50 percent probability or greater) that the Veteran’s cerebral cysts had their onset in service or are caused by or related at least in part to his active service to include service in the Persian Gulf? (B). Do the Veteran’s multiple cerebral cysts with any associated conditions constitute a congenital defect (static) or a congenital disease (capable or improving or deteriorating)? (C). If a congenital defect, was there a superimposed injury or disease during the Veteran’s service which has resulted in additional disability? (D). If a congenital disease, did it clearly and unmistakably preexist service? If so, was it also clearly and unmistakably not aggravated during the Veteran’s service? The examiner must specifically address the contention made by the Veteran’s private doctor that the Veteran’s cerebral cysts have resulted in the Veteran developing a seizure disorder. The examiner must specifically address the Veteran’s contention that the onset of his disability is indicated by the seizure he experienced on active duty, his symptoms of syncope on active duty, and the eye surgery he received during service. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature an etiology of his neurological disorder. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. After a review of the claims file, the examiner should provide answers to the following questions: (A). Identify all neurological disorders that are currently present. For each identified disorder: (B). Is it at least as likely as not (50 percent probability or greater) that the Veteran's neurological disorder had its onset in service or is caused by or related at least in part to his active service? (Continued on the next page)   In providing all of the requested opinions, the examiners should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. The VA examination reports must include a complete rationale for all opinions expressed. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.