Citation Nr: 21032710 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-42 779 DATE: May 27, 2021 ORDER Service connection for mild neurocognitive disorder, claimed as vascular dementia, is granted. REMANDED Service connection for bilateral upper extremity peripheral neuropathy is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's mild neurocognitive disorder, claimed as vascular dementia, was aggravated by his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for mild neurocognitive disorder, claimed as vascular dementia, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 1967 to May 1973. The Veteran is a decorated combat Veteran; his awards include a Purple Heart Medal and a Combat Action Ribbon. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, this matter was remanded to obtain new VA examinations and opinions as to whether the Veteran's dementia and bilateral hand disability were service connected. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. With regard to the Veteran's vascular dementia, the evidence is at least in equipoise as to whether this condition is service-connected, and compliance with the November 2018 Board order is irrelevant. As discussed in more detail below, the Veteran's claim for service connection of a bilateral hand disability must be remanded for failure to fulfill the requirements of the November 2018 remand. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be awarded for a disability which is proximately due to or the result of a service-connected disease or disability. See 38 C.F.R. § 3.310. In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran has been diagnosed with mild neurocognitive disorder, vascular type, satisfying the requirement of a current disability. At times, this disability has been described as vascular dementia. The Veteran contends that this disability was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). VA records show that the Veteran was diagnosed in May 2012 with PTSD. By October 2012, the Veteran had been prescribed medication to treat his complaints of memory loss and difficulty concentrating, after a Mini-Mental State Evaluation (MMSE) showed cognitive impairment, and a CT scan showed chronic ischemic white matter changes consistent with vascular dementia. Mental status examinations were largely within normal limits during 2012 and 2013, although at times the Veteran reported auditory hallucinations. The Veteran described variable symptoms saying that he had good and bad days. His wife reported that the Veteran had memory problems, especially with short term memory, and reported episodes of bizarre behavior where the Veteran had trouble distinguishing reality from fantasy. August 2014 psychological testing indicated memory deficits and difficulty with visual perception of spatial relationships, and the MMSE was indicative of mild cognitive impairment. Two of the tests administered by the clinical psychologist were unable to be interpreted due to invalid, overly negative responses, although the TOMM test did not indicate that the Veteran was malingering. Based on her review of the Veteran's treatment records, medical imaging and the psychological testing, the psychologist diagnosed the Veteran with PTSD, major depressive disorder with psychotic features and mild vascular neurocognitive disorder, due to his cognitive deficits. The psychologist specifically referenced the Veteran's memory problems in her evaluation. The September 2016 VA examination indicated that the Veteran's psychiatric symptoms included impairment of short- and long-term memory, impaired judgement, and circumstantial speech. There are two VA negative nexus opinions from September 2016 and November 2019. Both opinions conclude that the symptoms of the Veteran's vascular dementia or mild neurocognitive disorder cannot be differentiated from the symptoms of his PTSD; therefore, neither examiner could determine whether PTSD had aggravated the symptoms of the Veteran's neurocognitive disorder. Given the agreement that the Veteran's cognitive symptoms, especially memory loss, cannot be distinguished or attributed to either PTSD or his neurocognitive disorder, the evidence on each side of whether any individual symptom of the Veteran's neurocognitive disorder was aggravated by his service-connected PTSD is equal. Therefore, the Board finds that the evidence for and against the claim is in equipoise and the decision should be decided in favor of the Veteran. Accordingly, the Board finds that entitlement to service connection for neurocognitive disorder secondary to PTSD is warranted. REASONS FOR REMAND The Veteran contends that pain, numbness, weakness, and involuntary muscle movements, claimed generally as peripheral neuropathies, have caused functional loss of his bilateral arms and hands. VA treatment records show that the Veteran's symptoms have been given various diagnoses, including CTS, peripheral neuropathy, and osteoarthritis. These same treatment records show treatment for CTS, including a surgical release in July 2015. Even after this surgery, the Veteran has continued to report pain in the fingers of both hands causing functional loss. In August 2016, the Veteran described burning and crawling sensations, pins and needles, and prickling and numbness in his upper extremities. He attributed these symptoms to the effects of medications that he takes for his service-connected PTSD. VA examiners addressing the question of whether the Veteran's symptomatology is caused or aggravated by his military service have failed to p[roperly identify and consider a "current disability." They generally state a previously diagnosed condition had resolved, as with carpal tunnel syndrome; indicate the specific etiology asked after was not applicable, as with diabetes; or indicate that there was no diagnosed condition on the day of the examination. Such statements fail to recognize that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of the claim; thus, a Veteran may be granted service connection even though the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, even if no diagnostic or pathological label can be applied to the Veteran's symptomatic complaints, if such impact function, they may still be considered disabilities. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). Relatedly, in the November 2018 remand, the Board specifically directed that the November 2013 treatment record indicating a current diagnosis and treatment for peripheral neuropathy be addressed in the opinion. This was not done. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 1 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain updated VA records and associate them with the claims file. 2. Then, schedule the Veteran for VA peripheral nerve and hand examinations to determine the nature and etiology of the Veteran's current left and right upper extremity disabilities; the claims folder must be reviewed in conjunction with the examination. (a) The examiner(s) must identify any current diagnosis or disability (based on symptoms and impaired function) affecting the Veteran's upper extremities. The examiner(s) are informed that "current disability" includes all disabilities present during the pendency of the claim, even if those conditions have resolved. (b) For each identified condition, the examiner(s) must opine as to whether such is at least as likely as not (50 percent or greater probability) caused or aggravated by service. (c) The examiner(s) must also opine as to whether each is at least as likely as not caused or aggravated by (a) the Veteran's service-connected disabilities or (b) the side effects of medications the Veteran takes to treat his other service-connected disabilities, including, but not limited to Sertraline. A full and complete rationale for all opinions expressed must be provided. 3. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case, and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.