Citation Nr: 0001114 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 97-33 883A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES Entitlement to service connection for Persian Gulf Syndrome. Entitlement to service connection for residuals of inoculations. Entitlement to service connection for a right ankle condition. Entitlement to service connection for vision problems, including as due to undiagnosed illness. Entitlement to service connection for a skin condition, including as due to undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active service from December 1980 to May 1995. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, in April 1997 which denied the claimed benefits. That rating decision also addressed other claims, one of which was denied, but others of which were granted therein or subsequently. However, the veteran has appealed only those issues listed above. The issues pertaining to service connection for residuals of inoculations, a right ankle condition, vision problems, and a skin condition will be addressed in the Remand that follows this decision. FINDING OF FACT Persian Gulf Syndrome is not a disease entity for which VA disability compensation may be paid. CONCLUSION OF LAW Persian Gulf Syndrome was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The veteran has claimed that he has "Persian Gulf Syndrome" as a result of his exposure to toxic substances in connection with his service in the Southwest Asia Theater of Operations during the Persian Gulf War. Neither the pertinent regulation, 38 C.F.R. § 3.317 (1999), nor the statute that the regulation implements, 38 U.S.C.A. § 1117 (West Supp. 1999), lists "Persian Gulf Syndrome" as a disorder for which compensation is payable. Moreover, to the extent that the term "Persian Gulf Syndrome" may constitute a diagnosis, it is excluded for consideration under the provisions of that law and regulation. More importantly, in adopting the regulation that sets forth the criteria for paying compensation for certain manifestations of chronic disability due to undiagnosed illness in veterans who had service in the Persian Gulf, the Secretary of the Department of Veterans Affairs stated that "Persian Gulf Syndrome" is not a disease entity currently recognized by VA or commonly accepted within the medical community. VA has, in fact, been unable to establish a single "working definition," and any working definition, by its very nature, would not find a firm basis in the current scientific and medical evidence and, in our judgment, should not be used to establish entitlement under the provisions of this rule. The purpose of this rule making is not to define by regulation what the medical community has yet to identify or define, but rather to establish criteria for paying compensation to Persian Gulf veterans suffering from chronic disabilities resulting from undiagnosed illnesses. 60 Fed. Reg. 6660 (1995). Despite the fact that some examiners may have "diagnosed" the veteran as having "Persian Gulf Syndrome," the fact remains that such a "disorder" is not a disease or injury for which VA disability compensation may be paid under any applicable law or regulation. In a case such as this one, where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the veteran's claim for service connection for Persian Gulf Syndrome is denied. ORDER The claim for service connection for Persian Gulf Syndrome is denied because of the absence of legal merit or the lack of entitlement under the law. REMAND On review of the veteran's claims file, the Board notes that, in the claim he filed in July 1995, he stated that he had had a VA Persian Gulf Examination at the East Orange, New Jersey, VA Medical Center in June 1995. The record does not contain a report of that examination, the results of which would likely be pertinent to the current appeal. Those records, accordingly, must be obtained, because they are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992) (per curiam). Therefore, this case is REMANDED for the following additional actions: 1. With any needed signed releases from the veteran, the RO should request copies of up-to-date records of any examination or treatment, VA or non- VA, that he has had for any of the claimed disorders. In particular, the RO should request copies of any examination the veteran had at the East Orange VA Medical Center in June 1995. All records so received should be associated with the veteran's claims file. 2. The RO should then again consider the veteran's claims. If action taken remains adverse to him, he and his accredited representative should be furnished with a supplemental statement of the case and should be given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). By this REMAND, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this REMAND is to obtain clarifying information and to provide the veteran with due process. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. C. W. Symanski Member, Board of Veterans' Appeals