Citation Nr: 0003124 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-01 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for an eye disability to include as due to undiagnosed illness. 2. Entitlement to service connection for disability manifested by headaches, to include as due to undiagnosed illness. 3. Entitlement to service connection for disability manifested by heart palpitations, to include as due to undiagnosed illness. 4. Entitlement to service connection for disability manifested by muscle pain of the calves, to include as due to undiagnosed illness. 5. Entitlement to service connection for disability manifested by weight loss, to include as due to undiagnosed illness. 6. Entitlement to service connection for disability manifested by fatigue, to include as due to undiagnosed illness. 7. Entitlement to service connection for disability manifested by nervousness, to include as due to undiagnosed illness. 8. Entitlement to service connection for disability manifested by sleep difficulties, to include as due to undiagnosed illness. 9. Entitlement to service connection for disability manifested by memory problems, to include as due to undiagnosed illness. 10. Entitlement to service connection for disability manifested by testicular nodules, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hickey, Counsel INTRODUCTION The veteran had active service from November 1988 to November 1992. The record reflects service in the Southwest Asia theater of operation during the Persian Gulf War. This appeal to the Board of Veterans' Appeals (Board) arises from the February 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for an eye disability, headaches, a heart disability, muscle pain of the calves, speech difficulty - stuttering, and testicular nodules. The appeal also arises from the July 1997 rating decision which denied service connection for an eye disability, and disabilities manifested by headaches, heart palpitations, muscle pain of the calves, weight loss, fatigue, stomach problems, nervousness, sleep difficulties, and memory problems, claimed as due to undiagnosed illness. Finally, the appeal arises from the February 1998 rating decision which denied service connection for testicular nodules claimed as due to undiagnosed illness. REMAND The veteran's VA medical records include a progress note which reflects that the veteran had undergone a Persian Gulf Registry Examination in April 1996. However, the examination report has not been associated with the claims folder. In this regard it is noted that the U. S. Court of Appeals for Veterans Claims (Court) has held that VA adjudicators are charged with constructive notice of documents generated by VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). VA is charged with such notice even if the documents have not been made part of the record in a claim for benefits. Although the delay is regrettable, the case will be returned to the RO so that the Persian Gulf Registry Examination report can be added to the record prior to appellate review. The RO denied the veteran's claim for service connection for PTSD in March 1997. In a statement dated in January 1998, the veteran contended that he should be granted service connection because he was nervous and felt that he needed to "dive in a bunker again" when he heard loud noises. Because this statement clearly refers to the veteran's allegations with regard to his claim for service connection for PTSD, the statement constitutes a timely notice of disagreement with the RO's denial of service connection for PTSD. Accordingly, the RO is obligated to develop the claim in accordance with the provisions of 38 U.S.C.A. § 7105 (West 1991); these provsions require that the RO furnish the veteran with a statement of the case and allow him an opportunity to advance his claim to the Board by filing a substantive appeal. Accordingly, the case is REMANDED for the actions listed below. The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet.App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. 1. The RO should contact the veteran and request that he identify any VA health care providers, who have evaluated or treated him for the claimed conditions since separation from service. After securing the necessary releases, the RO should request copies of any previously unobtained medical records for association with the claims folder. 2. The RO should contact the VA Medical Center (VAMC) at Wilmington, Delaware and request a copy of the report of the veteran's Persian Gulf Registry Examination conducted in April 1996, for association with the claims folder. 3. The RO should assure that all appropriate development is completed with regard to the veteran's claim for service connection for PTSD. The RO should furnish the veteran with a statement of the case covering the claim for service connection for PTSD. The veteran must be provided with notice of the procedural steps required to complete his appeal in acoordance with 38 U.S.C.A. § 7105, and the vetreran must be afforded an opportunity to complete those steps, including the the filing of a substantive appeal in response to the statement of the case. 4. Following the completion of the above requested development, the RO should review the veteran's claims on the basis of all evidence of record and all applicable law and regulations. If any action taken remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case and the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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 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. G. H. SHUFELT Member, Board of Veterans' Appeals