Citation Nr: 0005573 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 97-31 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder, including due to undiagnosed illness. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic fatigue, including due to undiagnosed illness. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from December 1986 to April 1991, with service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The veteran's claims were remanded by the Board in April 1999. REMAND The veteran claims that he has submitted new and material evidence sufficient to reopen his claims for service connection for a skin disability and for service connection for chronic fatigue syndrome. These claims were remanded by the Board in April 1999. The April 1999 Board decision directed the RO to schedule the veteran for a VA examination relative to the disabilities at issue. The record does not reveal that the veteran was ever scheduled for such an examination. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. The Court further held that a remand by the Court or the Board imposes upon the Secretary of Veterans' Affairs a concomitant duty to ensure compliance with the terms of the remand, either personally or as "the head of the Department." 38 U.S.C.A. § 303 (West 1991). Further, the Court stated that where the remand orders of the Board or the Court are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998) Medical evidence has been submitted since the April 1999 Board decision. A supplemental statement of the case evaluating the evidence submitted since the April 1999 Board decision is not of record. Due process requires that the new evidence be evaluated by the RO and a supplemental statement of the case issued prior to review of the veteran's claims by the Board. In April 1999 the veteran appointed a new service representative. It does not appear that the veteran's new representative, the Missouri Veteran's Commission, has had an opportunity to review the veteran's claims file. Due process requires that the veteran's representative be provided such an opportunity. In light of the foregoing, the case is remanded to the RO for the following actions: 1. The RO should contact the veteran and request that he submit information concerning any additional VA and private medical treatment he has received since April 1991 for a skin disorder and fatigue. The RO must take the appropriate action to attempt to obtain copies of all identified medical records which are not already in the veteran's claims file. The RO should contact the St. Louis, Missouri VA Medical Center (John Cochran Medical Center) and request copies of all of the veteran's treatment records dated prior to 1997 and since June 1999. 2. Following completion of the above development, the veteran should be afforded a VA general medical examination conforming to the criteria for conducting Persian Gulf War examinations contained in the April 28, 1998, memorandum from the Under Secretary for Health. The claims file, a copy of this REMAND, and, if not sufficiently available on AMIE, a copy of the April 28, 1998, memorandum containing the Guidelines for Persian Gulf War disability examinations, must be made available to the examiner. The purpose of this examination, and any other necessary examinations, is to identify all signs or symptoms that the veteran claims to experience on a chronic basis as a result of his service in the Persian Gulf War, with particular emphasis on skin disorders and fatigue. A complete history, including the time of initial onset as well as the frequency, duration and severity of manifestations should be elicited from the veteran. All opinions expressed should be supported by reference to pertinent evidence. All indicated tests should be conducted. In regard to all currently identified skin disorders, the examiner is requested to provide a medical opinion, with supporting rationale, whether any such current disorder is related to any skin disorder manifestation demonstrated during service or whether he has a skin disorder of undiagnosed pathology. 3. The RO should then review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should ensure that the VA examination complies fully with the above instructions, and if not, the RO should take corrective action. See Stegall. 4. Upon completion of the above requested development, and any other necessary development, the RO should readjudicate the claims of whether new and material evidence has been received to reopen claims for service connection for a skin disorder, to include due to undiagnosed illness, and chronic fatigue, due to undiagnosed illness, with consideration of all applicable laws and regulations, to include pertaining to finality of an unappealed RO determination and reopening a previously finally denied claim, and 38 C.F.R. § 3.317. If the evidence demonstrates a disability based on a diagnosed illness, the RO should consider the claim for service connection on a direct basis other than due to undiagnosed illness. If any benefit sought on appeal is not granted to the veteran's satisfaction or if a timely notice of disagreement is received with respect to any other matter, the veteran and his representative should be provided a supplemental statement of the case on all issues in appellate status and afforded the appropriate opportunity to respond. The supplemental statement of the case should include all laws and regulations applicable to finality of an unappealed RO decision, as well as for reopening a final previously denied claim. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran until he is otherwise notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). U. R. POWELL 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).