Citation Nr: 0004920 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 96-32 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for chronic colds/respiratory disorder as due to an undiagnosed disorder. 2. Entitlement to service connection for a joint disorder as due to an undiagnosed disorder. 3. Entitlement to service connection for fatigue as due to an undiagnosed disorder. 4. Entitlement to service connection for memory loss as due to an undiagnosed disorder. 5. Entitlement to service connection for night sweats as due to an undiagnosed disorder. 6. Entitlement to service connection for a skin disorder as due to an undiagnosed disorder. 7. Entitlement to service connection for a sleep disorder as due to an undiagnosed disorder. ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran evidently had periods of active military service from February 1972 to November 1977, from February to November 1987, from January to March and April to August 1991, from September 1991 to August 1992 and from January to May 1993 and periods of Army Reserve service. He served in the Southwest Asia theater of operations from September to December 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In March 1999, the veteran canceled his appearance at a personal hearing at the RO and requested that the hearing be rescheduled and that he receive additional time to submit new evidence in support of his claims. The veteran failed to appear at a November 1999 personal hearing and has not submitted any further evidence in support of his claims. Finally, in a September 1999 memorandum, AMVETS advised the RO that it would no longer represent the veteran in the action on appeal. The memorandum indicates that the veteran was informed of AMVETS' action. REMAND The law providing for presumptive service connection for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War was amended to extend the presumptive period to December 31, 2001. 62 Fed. Reg. 23,138, 23,139 (1997) (interim rule promulgated in April 1997), adopted as a final rule without change, effective March 6, 1998. 63 Fed. Reg. 11,122, 11,123 (1998). This change is now set forth at 38 C.F.R. § 3.317(a)(1)(i) (1999). Under the new criteria, a Persian Gulf War veteran who served in the Southwest Asia theater of operations can be granted service connection for chronic disabilities resulting from an undiagnosed illness or combination of illnesses manifested by certain listed symptoms. The veteran served in the Southwest Asia Theater of operations. He contends that his claimed conditions were incurred as a result of his military service during the Persian Gulf War. The new regulations were addressed by the RO in an August 1997 supplemental statement of the case. However, additional evidentiary development is warranted on this claim prior to appellate review. The veteran's service medical records for the initial period of service (February 1972 to November 1977) are not currently associated wit the claims folder; and it is unclear whether the RO has adequately attempted to obtain them. While the veteran has not specifically alleged that the claimed disabilities are related to that period, nevertheless, any additional service records might prove relevant in deciding the etiology of these disabilities. The active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) medical records currently associated with the claims folder appear incomplete. It is unclear whether the RO has adequately attempted to obtain these records. The claims file currently contains incomplete service medical records from March 1991 to July 1994. The RO must endeavor to obtain all of the veteran's service medical records. In particular, a review of the RO's correspondence with the National Personnel Records Center (NPRC) indicates that the RO has not requested all of the veteran's service medical records. Service medical records from his service in Saudi Arabia, from September to December 1991 do not appear to be associated with the claims file. In February 1994, the NPRC advised the RO to request the veteran's records from Fort Meade, Maryland. The RO's August 1994 records request does not include the veteran's Persian Gulf War service in 1991. While some service medical and personnel records were obtained, including a February 1992 separation examination report, other pertinent records regarding his service during the Persian Gulf War were not received. Moreover, a January 1995 Report of Contact (VA Form 119) indicates that the veteran's reserve unit in Bloomington, Indiana, advised the RO that it had service medical records for March 1991; those records were received by the RO in February 1995. The VA Form 119 also notes that Fort Meade or the veteran might have other service medical records, although the veteran advised the RO that he did not have any service medical records. Most importantly, a February 1996 memorandum from the VA Quality Assurance Specialist to the Rating Specialist reveals that the veteran's military medical records were actively pursued, including a request to Fort Meade in August 1994, that Fort Meade did not reply and that there was no follow up to the request. Corrective action was recommended by the Quality Assurance Specialist, including that the Military Records Specialist consider if another request to Fort Meade would be in order or if some other follow-up was needed. In an undated note, the Military Records Specialist said there was no reason whatsoever for the veteran's records to be at Fort Meade and no need to follow up. The Board disagrees. There might also be additional active duty and Army Reserve medical records dated prior to and subsequent to the March 1991 and July 1994 records. Also, a September 1994 response to the RO's record request indicates that "the individual is assigned to a USAR unit" and a November 1995 psychiatric evaluation referred to the veteran as "First Class Army Sergeant." While the veteran's contentions primarily concern Operation Desert Shield/Storm active service, nevertheless, judicial precedents would appear to mandate that all of his available military medical records should be sought and associated with the claims folder. Additionally, DUTRA medical records might prove relevant particularly concerning whether any claimed disability preexisted the veteran's Operation Desert Shield/Storm active service. Additional development is required in this regard. Furthermore, an April 1996 VA general medical examination report indicates that the veteran underwent three Persian Gulf War examinations, with diagnostic workups and laboratory studies, including one at the VA medical center and two at Fort Knox. While the veteran submitted a copy of a December 1993 VA Persian Gulf War protocol examination report, reports of the examinations performed at Fort Knox, Kentucky, are not of record. Accordingly, while the Board regrets the delay, this claim is REMANDED to the RO for the following actions: 1. The RO is requested to directly contact the Army National Guard/Reserves unit(s) to which the veteran has been assigned and the National Personnel Records Center (NPRC) (or any other indicated agency) to request written verification of all the veteran's ACDUTRA and INACDUTRA dates, as possible. If needed, the veteran's assistance in this undertaking should be solicited. 2. The RO should directly request that the Army National Guard/Reserve unit(s) to which the veteran has been assigned and the NPRC (or any other appropriate organization) to search for any additional Army National Guard/Reserves medical records (including INACDUTRA and ACDUTRA) and active service medical records, including those from his every period of active service from February 1972 to May 1993 and any additional Army Reserve medical records, i.e., dated subsequent to 1991. The RO should request NPRC (or any other appropriate organization) to state in writing whether it has searched all applicable secondary sources for such records. In the event that the records are unavailable, this should be noted in writing in the claims folder. Again, to the extent that the veteran's assistance is needed in determining outfits, or other details for an informed request, his assistance should be requested. 3. The RO should contact and request the veteran to provide any additional Army National Guard/Reserves medical records (included INACDUTRA and ACDUTRA) and active service medical records that he may possess. The RO should request the veteran to provide the names, addresses and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claims. With any necessary authorization from the veteran, the RO should attempt to obtain and associate with the claims file any records identified by the veteran that are not already of record. In any event, the RO should request copies of all Persian Gulf War protocol examinations performed on the veteran by VA and at Fort Knox, Kentucky. 4. To the extent there is an attempt to obtain records that is unsuccessful, the claims folder should contain documentation of the attempts made. The appellant and his representative should also be informed of any negative results. 38 C.F.R. § 3.159 (1999). 5. Thereafter, the RO should review the claims folder and ensure that all of the foregoing development action has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet. App. 268 (1998). 6. The RO should then readjudicate the veteran's claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. In particular, the RO should evaluate the claims for service connection for the claimed disabilities under 38 C.F.R. § 3.317. If the decision with respect to the claims remains adverse to the veteran, he should be furnished a supplemental statement of the case, which includes the criteria regarding service connection for undiagnosed illnesses, and be given a reasonable period of time within which to respond thereto. Thereafter, the claim is to be returned to the Board, following applicable appellate procedure. The veteran need take no action until he is so informed. The Board intimates no outcome in this case by the action taken herein. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).