Citation Nr: 0006122 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-37 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for multiple painful joints (the right ankle, right knee, and both elbows), to include as a result of Persian Gulf War service. ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from March 1981 to November 1982, and from August 1984 to June 1994. He also had subsequent service in the reserves. This appeal arises from a July 1994 rating decision that denied service connection for multiple painful joints. The veteran appealed this decision. In October 1998, the Board of Veterans' Appeals (Board) remanded this claim to the RO for development of the service medical records. The case has now returned for further appellate review. REMAND Initially, the Board notes that it does not appear that all the actions requested in the prior remand have been fully been complied with. In the prior remand, the Board requested that the RO verify the veteran's dates of active service, to include active duty for training, and to obtain and associate with the record all outstanding service medical and personnel records, to include any from the National Personnel Records Center (NPRC) in St. Louis, Missouri. The claims file reflects that the RO made a number of attempts to obtain such information and records, to include from the Mississippi National Guard (which provided a negative response), and, in November 1998 and January 1999. Significantly, however, the claims file was returned to the Board without receiving a response to its last inquiry for the NPRC. The Board also observes that, in February 1999, the RO received information that the veteran was currently assigned to an U. S. Army Reserve Unit. Although the veteran apparently indicated that he would submit a certified copy of his service medical records from his reserve unit, he did not do so, nor did he respond to a March 1999 inquiry from the RO. Accordingly, further remand of this matter is warranted. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). Therefore, on remand, the RO should contact both the veteran's current U. S. Army Reserves unit and the NPRC and request that they submit copies of all of the veteran's service records in their possession. The Board also observes that, according to the veteran, he suffers from multiple painful joints to include his right ankle, right knee, and both elbows. A review of the veteran's U. S. Department of Defense (DD) Form 214 indicates that he served in the Southwest Theater of Operations during the Gulf War. The provisions of 38 U.S.C.A. § 1117 (West 1991 & Supp. 1999) and 38 C.F.R. § 3.317 (1999) permit a grant of service connection for disability due to undiagnosed illness for a veteran who served in the Gulf War. One of the signs or symptoms of such an illness is multiple joint pain. The claims folder shows that, while the RO denied the veteran's claim as not well grounded, the RO has not addressed the veteran's claims under the theory that such alleged disabilities may be the result of Persian Gulf service and due to undiagnosed illness, as set out in 38 C.F.R. § 3.317 (1999). Under 38 C.F.R. § 3.317(a)(1) (1999), compensation may be paid to a Persian Gulf veteran who "exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms," provided that such disability was manifest to a degree of 10 percent or more prior to December 21, 2001, and that it cannot, by history, physical examination, and laboratory tests be attributed to any known clinical diagnosis. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period should be considered chronic for purposes of adjudication. 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to, joint pain. 38 C.F.R. § 3.317(b). "Objective indications" include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2). In this regard, VA has stated that non-medical indicators of an illness may include evidence of time lost from work, evidence the veteran has sought medical treatment for his symptoms, and "[l]ay statements from individuals who establish that they are able from personal experience to make their observations or statements." See Compensation for Certain Undiagnosed Illnesses, 60 Fed. Reg. 6660, 6663 (1995). To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317. Claims of service connection for chronic disability resulting from Persian Gulf service (and due to an undiagnosed illness) related to exposure to environmental agents while in the Persian Gulf are subject to the adjudicative procedures set forth in the Veterans Benefits Administration (VBA) Circular 20-92-29 (Revised July 2, 1997). In essence, this publication directs an RO, in receipt of a veteran's claim, to "undertake all required development action, including requesting a VA general medical examination." With regard to nonmedical (lay) evidence, it is noted that records or reports of time lost from work, changes in physical appearance, changes in physical abilities, and changes in mental and emotional attitude are helpful in support of a Persian Gulf War claim. In addition, VBA All-Stations Letter 98-17 (2/26/98) contains mandatory guidelines for disability examinations of Gulf War veterans outlined in a memorandum dated February 6, 1998. In general, the guidelines require a VA examiner to detail all conditions and symptoms that can be elicited from the veteran (including what precipitates and what relieves them). The examiner should then identify all diagnosed conditions arising from the symptoms, and also determine if there are symptoms, abnormal physical findings, or abnormal laboratory test results that are not part of a known clinical diagnosis. In that case, further specialist examinations are required to address these findings. The guidelines also state that symptom-based diagnoses, such as (but not limited to) myalgia and arthralgia are not considered as diagnosed conditions for compensation purposes. A review of the record reveals that VA examined the veteran in connection with his claim for service connection for multiple joint pain in February 1997. The evidence of record reveals that this examination did not comport with the requirements of the mandatory guidelines for Gulf War disability examinations. Accordingly, this examination is inadequate, and the veteran should undergo further examination. As a final point, the Board would emphasize that, following completion of all the development requested herein, the RO should adjudicate all of the veteran's service connection claims on a de novo basis, to specifically include consideration of 38 C.F.R. § 3.317. Accordingly, the Board hereby REMANDS the case to the RO for the following actions: 1. The RO should obtain and associate with the claims file all outstanding service medical and personnel records pertaining to the veteran. This should specifically include any outstanding records from the National Personnel Records Center in St. Louis, Missouri, the U. S. Army Reserve unit(s) to which he (formerly was) and currently is assigned; and from any other facility or source identified by the veteran. The RO should also attempt to verify all the veteran's periods of active duty, to include all periods of active duty with the aid of the veteran and his representative in securing such records should be enlisted, as needed. However, if any such requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. The RO should also contact the veteran and request that he submit signed statements from persons having personal knowledge of his disabilities which include the following statement: "I hereby certify that the information I have given is true to the best of my knowledge and belief." The veteran should be notified that statements from persons who knew the veteran during the Persian Gulf War or after separation from military service will be considered. Each person's name and complete address must clearly be shown. Each statement should describe exactly what the person observed and mention specific dates and places. A person on active duty at the time should include his or her service number and military unit. 3. After all available evidence procured in connection with the above development has been associated with the claims file, the veteran should be afforded VA medical examination by an appropriate specialist to identify all signs and symptomatology that the veteran may experience on a chronic basis as a result of his service in the Persian Gulf. A complete history, which includes the time of initial onset and the frequency and duration of manifestations of each claimed disability, should be elicited from the veteran. However, the RO must provide the examiner(s) with the veteran's claims folder, including a copy of this REMAND, for review in connection with the claims, and the report should reflect consideration of the veteran's pertinent medical history. All specialized testing should be completed as deemed necessary by the examiner(s). The examination(s) must conform to the criteria for conducting Persian Gulf War examinations contained in the February 6, 1998 memorandum described above to determine the nature and extent of any symptomatology attributable to Persian Gulf syndrome, specifically, any multiple joint pain. The examiner should then expressly state which symptoms and abnormal physical findings can be attributed to a known clinical diagnosis and which cannot be attributed to a known clinical diagnosis. For those symptoms and conditions which are not attributable to a known diagnosis, the findings should reflect all objective indications of chronic disability, as defined under 38 C.F.R. § 3.317(a)(2) (see above). Finally, the examiner(s) should express an opinion as to when such a symptom or condition initially manifested itself and whether it is to be regarded as "chronic" (i.e. as having existed for six months or more or as having resulted in intermittent episodes of improvement and worsening over a six-month period). The report of the examination should be typewritten. The examiner must set forth the rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record. 4. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completion of the foregoing requested development, and after completion of any other development deemed warranted by the record, the RO should consider the veteran's claim of entitlement to service connection for multiple painful joints (right ankle, right knee, and both elbows), to include as secondary to his Persian Gulf War service, in light of all pertinent evidence of record, and all applicable laws, regulations, and case law. In doing so, the RO must specifically consider 38 C.F.R. § 3.317 (1999) and, if deemed appropriate, 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304 (1999). The RO must provide adequate reasons and bases for its determinations, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in the REMAND. 6. If the benefits sought by the veteran continue to be denied, he and his representative must be furnished a Supplemental Statement of the Case and given an opportunity to submit written or other argument in response before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). This REMAND 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. JACQUELINE E. MONROE 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).